2,500,000 SHARES
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
April ___, 1999
X.X. XXXXXXX & SONS, INC.
EVEREN SECURITIES, INC.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxx & Sons, Inc.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, Intrav, Inc., a Missouri corporation (the
"Company"), and the Revocable Trust of Xxxxxx X. Xxxxxxxx, dated July
23, 1986, as amended, (the "Selling Shareholder"), hereby address you as
the representatives (the "Representatives") of each of the persons,
firms and corporations listed on Schedule I hereto (collectively, the
"Underwriters") and hereby confirm their agreement with the several
Underwriters as follows:
1. DESCRIPTION OF SHARES. The Company proposes to issue and
sell to the Underwriters 500,000 shares of its Common Stock, par value
$.01 per share, and the Selling Shareholder proposes to sell to the
Underwriters 2,000,000 shares of the Company's Common Stock, par value
$.01 per share (such 2,500,000 shares of Common Stock are herein
collectively referred to as the "Firm Shares"). Solely for the purpose
of covering over-allotments in the sale of the Firm Shares, the Company
and the Selling Shareholder further propose to grant the Underwriters
the right to purchase up to an additional 375,000 shares of Common Stock
(the "Option Shares"), as provided in Section 3 of this Agreement. The
Firm Shares and the Option Shares are herein sometimes referred to as
the "Shares" and are more fully described in the Prospectus hereinafter
defined.
[FN]
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The Company and the Selling Shareholder have granted the
Underwriters the option to purchase an aggregate of 375,000 additional
shares of Common Stock to cover over-allotments, if any.
2. PURCHASE, SALE AND DELIVERY OF FIRM SHARES. On the basis
of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees
and the Selling Shareholder agrees, severally and not jointly, to sell
to the Underwriters, and each such Underwriter agrees, severally and not
jointly, (a) to purchase from the Company and from the Selling
Shareholder, pro rata, at a purchase price of $ per share, the number
of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto and (b) to purchase from the Company and the Selling
Shareholder any additional number of Option Shares which such
Underwriter may become obligated to purchase pursuant to Section 3
hereof.
The Company and the Selling Shareholder will deliver definitive
certificates for the Firm Shares at the office of X.X. Xxxxxxx & Sons,
Inc., Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 ("Xxxxxxx'
Office"), or such other place as you and the Company may mutually agree
upon (the "Place of Closing"), for the accounts of the several
Underwriters against payment to the Company and the Selling Shareholder
of the purchase price for the Firm Shares sold by them to the several
Underwriters by wire transfer of immediately available funds to a bank
account designated by the Company and the Selling Shareholder for their
respective portion of the purchase price, at 10:00 a.m., St. Louis time,
on ____________ ___, 1999, or at such other time and date not later than
five full business days thereafter as you and the Company may agree,
such time and date of payment and delivery being herein called the
"Closing Date."
The certificates for the Firm Shares so to be delivered will be
made available to you for inspection at Xxxxxxx' Office (or such other
place as you and the Company may mutually agree upon) at least one full
business day prior to the Closing Date and will be in such names and
denominations as you may request at least forty-eight hours prior to the
Closing Date.
It is understood that an Underwriter, individually, may (but shall
not be obligated to) make payment on behalf of the other Underwriters
whose funds shall not have been received prior to the Closing Date for
Shares to be purchased by such Underwriter. Any such payment by an
Underwriter shall not relieve the other Underwriters of any of their
obligations hereunder.
It is understood that the Underwriters propose to offer the Shares
to the public upon the terms and conditions set forth in the
Registration Statement hereinafter defined.
3. PURCHASE, SALE AND DELIVERY OF THE OPTION SHARES. The
Company and the Selling Shareholder hereby grant options to the
Underwriters to purchase from them on a pro rata basis up to 75,000 and
300,000 Option Shares, respectively, on the same terms and conditions as
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the Firm Shares; provided, however, that such options may be exercised
only for the purpose of covering any over-allotments which may be made
by them in the sale of the Firm Shares. No Option Shares shall be sold
or delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered.
The options are exercisable on behalf of the several Underwriters
by you, as Representatives, at any time, and from time to time, before
the expiration of 30 days from the date of the Prospectus (or, if such
30th day shall be a Saturday or Sunday or a holiday, on the next day
thereunder when The Nasdaq National Market is open for trading), for the
purchase of all or part of the Option Shares covered thereby, by notice
given by you to the Company and the Selling Shareholder in the manner
provided in Section 13 hereof, setting forth the number of Option Shares
as to which the Underwriters are exercising the options, and the date of
delivery of said Option Shares, which date shall not be more than five
business days after such notice unless otherwise agreed to by the
parties. You may terminate the options at any time, as to any
unexercised portion thereof, by giving written notice to the Company and
the Selling Shareholder to such effect.
You, as Representatives, shall make such allocation of the Option
Shares among the Underwriters as may be required to eliminate purchases
of fractional Shares.
Delivery of the Option Shares with respect to which the options
shall have been exercised shall be made to or upon your order at
Xxxxxxx' Office (or at such other place as you and the Company may
mutually agree upon), against payment by you of the per share purchase
price to the Company and the Selling Shareholder by wire transfer of
immediately available funds to a bank account designated by the Company
and the Selling Shareholder, respectively. Such payment and delivery
shall be made at 10:00 a.m., St. Louis time, on the date designated in
the notice given by you as above provided for (which may be the same as
the Closing Date), unless some other date and time are agreed upon,
which date and time of payment and delivery are called the "Option
Closing Date." The certificates for the Option Shares so to be
delivered will be made available to you for inspection at Xxxxxxx'
Office at least one full business day prior to the Option Closing Date
and will be in such names and denominations as you may request at least
forty-eight hours prior to the Option Closing Date. On the Option
Closing Date, the Company and the Selling Shareholder shall provide the
Underwriters such representations, warranties, agreements, opinions,
letters, certificates and covenants with respect to the Option Shares as
are required to be delivered on the Closing Date with respect to the
Firm Shares.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
AND THE SELLING SHAREHOLDER. (a) The Company and the Selling
Shareholder represent and warrant to and agree with each Underwriter
that:
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(i) A registration statement (Registration No. 333-
73101) on Form S-2 with respect to the Shares, including a
preliminary prospectus, and such amendments to such registration
statement as may have been required to the date of this Agreement,
has been carefully prepared by the Company pursuant to and in
conformity with the requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations thereunder
(the "1933 Act Rules and Regulations") of the Securities and
Exchange Commission (the "SEC") and has been filed with the SEC
under the 1933 Act. The Company meets the requirements for use of
Form S-2 under the 1933 Act. Copies of such registration
statement, including any amendments thereto, each related
preliminary prospectus (meeting the requirements of Rule 430 or
430A of the 1933 Act Rules and Regulations) contained therein, and
the exhibits and financial statements thereto have heretofore been
delivered by the Company to you. If such registration statement
has not become effective under the 1933 Act, a further amendment
to such registration statement, including a form of final
prospectus, necessary to permit such registration statement to
become effective will be filed promptly by the Company with the
SEC. If such registration statement has become effective under
the 1933 Act, a final prospectus containing information permitted
to be omitted at the time of effectiveness by Rule 430A of the
1933 Act Rules and Regulations will be filed promptly by the
Company with the SEC in accordance with Rule 424(b) of the 1933
Act Rules and Regulations. The term "Registration Statement" as
used herein means the registration statement as amended at the
time it becomes effective under the 1933 Act (the "Effective
Date"), including financial statements, all exhibits and all
documents incorporated by reference therein pursuant to Item 12 of
Form S-2 under the 1933 Act and, if applicable, the information
deemed to be included by Rule 430A of the 1933 Act Rules and
Regulations. If it is contemplated, at the time this Agreement is
executed, that a post-effective amendment to such registration
statement will be filed and must be declared effective before the
offering of Shares may commence, the term "Registration Statement"
as used herein means the registration statement as amended by said
post-effective amendment. If an abbreviated registration
statement is prepared and filed with the SEC in accordance with
Rule 462(b) under the 1933 Act (an "Abbreviated Registration
Statement"), the term "Registration Statement" as used in this
Agreement includes the Abbreviated Registration Statement. The
term "Prospectus" as used herein means (i) the prospectus as first
filed with the SEC pursuant to Rule 424(b) of the 1933 Act Rules
and Regulations, or (ii) if no such filing is required, the form
of final prospectus included in the Registration Statement at the
Effective Date or (iii) if a Term Sheet or Abbreviated Term Sheet
(as such terms are defined in Rules 434(b) and 434(c),
respectively, of the 1933 Act Rules and Regulations) is filed with
the SEC pursuant to Rule 424(b)(7) of the 1933 Act Rules and
Regulations, the Term Sheet or Abbreviated Term Sheet and the last
Preliminary Prospectus filed with the SEC prior to the time the
Registration Statement became effective, taken together,
including, in each case, the documents incorporated by
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reference therein pursuant to Item 12 of Form S-2 under the 1933
Act. The term "Preliminary Prospectus" as used herein shall mean
a preliminary prospectus as contemplated by Rule 430 or 430A of
the 1933 Act Rules and Regulations included at any time in the
Registration Statement. For purposes of this Agreement, the words
"amend," "amendment," "amended," "supplement" or "supplemented"
with respect to the Registration Statement or the Prospectus shall
mean amendments or supplements to the Registration Statement or
the Prospectus, as the case may be as well as documents filed
after the date of this Agreement and prior to the completion of
the distribution of the Shares and incorporated by reference
therein as described above.
(ii) Neither the SEC nor any state or other jurisdiction
or other regulatory body has issued, and neither is, to the
knowledge of the Company, threatening to issue, any stop order
under the 1933 Act or other order suspending the effectiveness of
the Registration Statement (as amended or supplemented) or
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending the qualification or registration of
the Shares for offering or sale in any jurisdiction nor instituted
or, to the knowledge of the Company, threatened to institute
proceedings for any such purpose. Each Preliminary Prospectus at
its date of issue, the Registration Statement and the Prospectus
and any amendments or supplements thereto contain or will contain,
as the case may be, all statements which are required to be stated
therein by, and in all material respects conform or will conform,
as the case may be, to the requirements of, the 1933 Act and the
1933 Act Rules and Regulations. Neither the Registration
Statement nor any amendment thereto, as of the applicable
effective date, contains or will contain, as the case may be, 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, and neither any
Preliminary Prospectus, the Prospectus nor any supplement thereto
contains or will contain, as the case may be, 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, in the light of the circumstances under which
they were made, not misleading; provided, however, that the
Company makes no representation or warranty as to information
contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon,
and in conformity with, written information furnished to the
Company relating to the Underwriters by or on behalf of the
Underwriters expressly for use in the preparation thereof (as
provided in Section 14 hereof). There is no contract or document
required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required. The
documents incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-2 under the 1933 Act, at the time they were
filed with the SEC, complied in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended
(the "1934 Act"),
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and the rules and regulations adopted by the SEC thereunder (the
"1934 Act Rules and Regulations").
(iii) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally
binding obligation of the Company enforceable against the Company
in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of
equity and except to the extent the enforceability of the
indemnification and contribution provisions hereof and thereof may
be limited by public policy provisions as expressed in the 1933
Act as construed by courts of competent jurisdiction
(collectively, the "Exceptions").
(iv) The Company and its subsidiaries have been duly
organized and are validly existing as corporations in good
standing under the laws of the states or other jurisdictions in
which they are incorporated, with full power and authority
(corporate and other) to own, lease and operate their properties
and conduct their businesses as described in the Prospectus and,
with respect to the Company, to execute and deliver, and perform
the Company's obligations under, this Agreement; the Company and
its subsidiaries are duly qualified to do business as foreign
corporations in good standing in each state or other jurisdiction
in which their ownership or leasing of property or conduct of
business legally requires such qualification, except where the
failure to be so qualified, individually or in the aggregate,
would not have a Material Adverse Effect. The term "Material
Adverse Effect" as used herein means any material adverse effect
on the condition (financial or other), net worth, business,
affairs, management, prospects, results of operations or cash flow
of the Company and its subsidiaries, taken as a whole.
(v) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in the
Prospectus and, since the respective dates as of which information
is given in the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth in the
Prospectus.
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(vi) The issuance and sale of the Shares and the
execution, delivery and performance by the Company of this
Agreement, and the consummation of the transactions herein
contemplated, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any properties or assets of the
Company or any of its subsidiaries under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which
any of the properties or assets of the Company or any of its
subsidiaries is subject, except to such extent as, individually or
in the aggregate, does not have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the
Company's articles of incorporation or bylaws, [each as currently
in effect], or any statute, rule, regulation, treaty, convention
or other law, or any order or judgment, of any court or
governmental agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the execution, delivery and performance of
this Agreement, the issuance and sale of the Shares or the
consummation of the transactions contemplated hereby, except such
as have been, or will be prior to the Closing Date, obtained under
the 1933 Act or as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") and such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or blue sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters.
(vii) The Company has duly and validly authorized capital
stock as set forth in the Prospectus; all outstanding shares of
Common Stock of the Company and the Shares conform, or when issued
will conform, to the description thereof in the Prospectus and
have been, or, when issued and paid for in the manner described
herein will be, duly authorized, validly issued, fully paid and
non-assessable; and the issuance of the Shares to be purchased
from the Company hereunder is not subject to preemptive or other
similar rights, or, except as disclosed in the Prospectus, any
restriction upon the voting or transfer thereof pursuant to
applicable law or the Company's articles of incorporation, by-
laws, each as currently in effect, or governing documents or any
agreement to which the Company or any of its subsidiaries is a
party or by which any of them may be bound. All corporate action
required to be taken by the Company for the authorization,
issuance and sale of the Shares has been duly and validly taken.
Except as disclosed in the Prospectus, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or rights related to or entitling
any person to purchase or otherwise to acquire any shares of, or
any security convertible into or exchangeable or exercisable for,
the capital stock of, or other ownership interest in, the Company.
The
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outstanding shares of capital stock of the Company's subsidiaries
have been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company free and clear of any
mortgage, pledge, lien, encumbrance, charge or adverse claim and
are not the subject of any agreement or understanding with any
person and were not issued in violation of any preemptive or
similar rights; and there are no outstanding subscriptions,
rights, warrants, options, calls, convertible securities,
commitments of sale or instruments related to or entitling any
person to purchase or otherwise acquire any shares of, or any
security convertible into or exchangeable or exercisable for, the
capital stock of, or other ownership interest in any of the
subsidiaries.
(viii) The statements set forth in the Prospectus under
the captions "Risk Factors," "Business," "Description of Capital
Stock," "Shares Eligible for Future Sale," and the statements
describing the Shares and this Agreement, insofar as they purport
to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair.
(ix) Each of the Company and its subsidiaries is in
possession of and is operating in compliance with all franchises,
grants, authorizations, licenses, certificates, permits,
easements, consents, orders and approvals ("Permits") from all
state, federal, foreign and other regulatory authorities, and has
satisfied the requirements imposed by regulatory bodies,
administrative agencies or other governmental bodies, agencies or
officials, that are required for the Company and its subsidiaries
lawfully to own, lease and operate their properties and conduct
their businesses as described in the Prospectus, and, each of the
Company and its subsidiaries is conducting its business in
compliance with all of the laws, rules and regulations of each
jurisdiction in which it conducts its business, in each case with
such exceptions, individually or in the aggregate, as would not
have a Material Adverse Effect; each of the Company and its
subsidiaries has filed all notices, reports, documents or other
information ("Notices") required to be filed under applicable
laws, rules and regulations, in each case, with such exceptions,
individually or in the aggregate, as would not have a Material
Adverse Effect; and, except as otherwise specifically described in
the Prospectus, neither the Company nor any of its subsidiaries
has received any notification from any court or governmental body,
authority or agency, relating to the revocation or modification of
any such Permit or, to the effect that any additional
authorization, approval, order, consent, license, certificate,
permit, registration or qualification ("Approvals") from such
regulatory authority is needed to be obtained by any of them, in
any case where it could be reasonably expected that obtaining such
Approvals or the failure to obtain such Approvals, individually or
in the aggregate, would have a Material Adverse Effect.
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(x) The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax
returns and paid all taxes shown as due thereon; all such tax
returns are complete and correct in all material respects; all tax
liabilities are adequately provided for on the books of the
Company and its subsidiaries (except to such extent as would not
have a Material Adverse Effect); the Company and its subsidiaries
have made all necessary payroll tax payments and are current and
up-to-date; and the Company and its subsidiaries have no knowledge
of any tax proceeding or action pending or threatened against the
Company or its subsidiaries which, individually or in the
aggregate, might reasonably be expected to have a Material Adverse
Effect.
(xi) Except as described in the Prospectus, the Company
and its subsidiaries own or possess, or can acquire on reasonable
terms, adequate patents, patent licenses, trademarks, service
marks and trade names necessary to conduct the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any
patents, patent licenses, trademarks, service marks or trade names
which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(xii) The Company and its subsidiaries have good and
marketable title in fee simple to all items of real property and
good and marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances,
restrictions and defects except such as are described in the
Prospectus, described or referenced in exhibits to the
Registration Statement, or do not materially affect the value of
such property and do not materially interfere with the use made
and proposed to be made of such property; and any property held
under lease or sublease by the Company or any of its subsidiaries
is held under valid, subsisting and enforceable leases or
subleases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and neither the
Company nor any of its subsidiaries has any notice or knowledge of
any material claim of any sort which has been, or may be, asserted
by anyone adverse to the Company's or any of its subsidiaries
rights as lessee or sublessee under any lease or sublease
described above, or affecting or questioning the Company's or any
of its subsidiaries' rights to the continued possession of the
leased or subleased premises under any such lease or sublease in
conflict with the terms thereof.
(xiii) The Company, directly or indirectly, holds good
and marketable title to each of the vessels owned by them, free
and clear from all liens, encumbrances, restrictions and defects,
other than those described in the Prospectus, described or
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referenced in exhibits to the Registration Statement, and maritime
liens in the ordinary course of business.
(xiv) The Company is in compliance with all material
standards and regulations applicable to its vessels, including
without limitation all material, standards and regulations issued
by the International Maritime Organization and The Federal
Maritime Commission.
(xv) Except as described in the Prospectus, there is no
factual basis for any action, suit or other proceeding involving
the Company or any of its subsidiaries or any of their material
assets for any failure of the Company or any of its subsidiaries,
or any predecessor thereof, to comply with any requirements of
federal, state or local regulation relating to air, water, solid
waste management, hazardous or toxic substances, or the protection
of health or the environment. Except as described in the
Prospectus, none of the property owned or leased by the Company or
any of its subsidiaries is, to the best knowledge of the Company,
contaminated with any waste or hazardous substances, and neither
the Company nor any of its subsidiaries may be deemed an "owner or
operator" of a "facility" or "vessel" which owns, possesses,
transports, generates or disposes of a "hazardous substance" as
those terms are defined in Section 9601 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Section 9601 et seq.
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(xvi) No labor disturbance exists with the employees of
the Company or any of its subsidiaries or is imminent which,
individually or in the aggregate, would have a Material Adverse
Effect. None of the employees of the Company or any of its
subsidiaries is represented by a union and, to the best knowledge
of the Company and its subsidiaries, no union organizing
activities are taking place. Neither the Company nor any of its
subsidiaries has violated any federal, state or local law or
foreign law relating to discrimination in hiring, promotion or pay
of employees, nor any applicable wage or hour laws, or the rules
and regulations thereunder, or analogous foreign laws and
regulations, which might reasonably be expected to, individually
or in the aggregate, result in a Material Adverse Effect.
(xvii) The Company and its subsidiaries are in
compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974,
as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company and its subsidiaries
would have any liability; the Company and its subsidiaries have
not incurred and do not expect to incur liability under (i) Title
IV of ERISA with respect to
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termination of, or withdrawal from, any "pension plan" or (ii)
Section 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the
Company or any of its subsidiaries would have any liability that
is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects, and nothing has occurred,
whether by action or by failure to act, which would cause the loss
of such qualification.
(xviii) The Company and its subsidiaries maintain
insurance of the types and in the amounts generally deemed
adequate for its business, including, but not limited to,
directors' and officers' insurance, insurance covering real and
personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which
insurance is in full force and effect. Neither the Company nor
any of its subsidiaries has been refused any insurance coverage
sought or applied for, and the Company has no reason to believe
that it and its subsidiaries will not be able to renew their
existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
Material Adverse Effect.
(xix) Neither the Company nor any of its subsidiaries is,
or with the giving of notice or lapse of time or both would be, in
default or violation with respect to its articles of incorporation
or by-laws, each as currently in effect. Neither the Company nor
any of its subsidiaries is, or with the giving of notice or lapse
of time or both would be, in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries is
subject, or in violation of any statutes, laws, ordinances or
governmental rules or regulations or any orders or decrees to
which it is subject, including, without limitation, Section 13 of
the 1934 Act, which default or violation, individually or in the
aggregate, would have a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has, at any time during the
past five years, (A) made any unlawful contributions to any
candidate for any political office, or failed fully to disclose
any contribution in violation of law, or (B) made any payment to
any state, federal or foreign government official, or other person
charged with similar public or quasi-public duty (other than
payment required or permitted by applicable law).
(xx) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a
11
party or of which any property of the Company or any of its
subsidiaries is the subject that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect or which would materially
and adversely affect the consummation of the transactions
contemplated hereby or which is required to be disclosed in the
Prospectus; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be a "holding company,"
or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company,"
as such terms are defined in the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act").
(xxii) The Company is not and, after giving effect to
the offering and sale of the Shares, will not be an "investment
company" or an entity "controlled" by an "investment company," as
such terms are defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxiii) To the best of the Company's knowledge, Deloitte
& Touche, LLP, the accounting firm which has certified the
financial statements filed with or incorporated by reference in
and as a part of the Registration Statement, is an independent
public accounting firm within the meaning of the 1933 Act and the
1933 Act Rules and Regulations. The Company and each of its
subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that: (1) transactions
are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted only
in accordance with management's general or specific authorization;
and (4) the recorded accounts for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect thereto. The consolidated financial statements
of the Company, including the notes thereto, filed with (or
incorporated by reference) and as a part of the Registration
Statement or Prospectus, are accurate in all material respects and
present fairly the financial condition of the Company and its
subsidiaries as of the respective dates thereof and the
consolidated results of operations and changes in financial
position and consolidated statements of cash flow for the
respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods involved except as otherwise
disclosed therein. All adjustments necessary for a fair
presentation of results for such periods have been made. The
selected financial data included or incorporated by reference in
the Registration Statement and
12
Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements from which such data was derived. Any
operating or other statistical data included or incorporated by
reference in the Registration Statement and Prospectus comply in
all material respects with the 1933 Act and the 1933 Act Rules and
Regulations and present fairly the information shown therein.
(xxiv) Except as disclosed in the Prospectus, no holder
of any security of the Company has any right to require
registration of shares of Common Stock or any other security of
the Company because of the filing of the Registration Statement or
the consummation of the transactions contemplated hereby and,
except as disclosed in the Prospectus, no person has the right to
require registration under the 1933 Act of any shares of Common
Stock or other securities of the Company. No person has the
right, contractual or otherwise, to cause the Company to permit
such person to underwrite the sale of any of the Shares. Except
for this Agreement, there are no contracts, agreements or
understandings between the Company or any of its subsidiaries and
any person that would give rise to a valid claim against the
Company, its subsidiaries or any Underwriter for a brokerage
commission, finder's fee or like payment in connection with the
issuance, purchase and sale of the Shares.
(xxv) The Company has not distributed and, prior to the
later to occur of (i) the Closing Date or the Option Closing Date,
if any, and (ii) completion of the distribution of the Shares,
will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration
Statement, the Preliminary Prospectus or the Prospectus.
(xxvi) The Company has not taken and will not take,
directly or indirectly, any action in violation of Regulation M
under the 1934 Act Rules and Regulations or designed to or which
might reasonably be expected to cause or result in stabilization
or manipulation of the price of the Company's Common Stock, and
the Company is not aware of any such action taken or to be taken
by affiliates of the Company.
(b) The Selling Shareholder represents and warrants to and
agrees with each Underwriter and the Company that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by it of this Agreement,
and the Custody Agreement and Power of Attorney (as defined
herein) and the sale and delivery of the Shares to be sold by such
Selling Shareholder hereunder and thereunder have been given and
are in full force and effect on the date hereof and will be in
full force and effect on the Closing Date (and, if
13
applicable, the Option Closing Date). This Agreement and the
Custody Agreement and Power of Attorney have been duly authorized,
executed and delivered by or on behalf of such Selling Shareholder
and are the valid and legally binding obligations of such Selling
Shareholder enforceable in accordance with their terms except as
enforceability may be limited by the Exceptions.
(ii) Such Selling Shareholder has, and on the Closing
Date (and, if applicable, the Option Closing Date) will have good,
valid and marketable title to the Shares to be sold by such
Selling Shareholder, free and clear of all liens, mortgages,
pledges, encumbrances, claims, equities and security interests
whatsoever, including any restriction on transfer other than
pursuant to this Agreement and the Custody Agreement and Power of
Attorney referred to herein, and now has, and on the Closing Date
(and, if applicable, the Option Closing Date), will have, full
right, power and authority, and any approval required by law, to
enter into this Agreement and the Custody Agreement and Power of
Attorney and to sell, assign, transfer and deliver the Shares to
be sold by such Selling Shareholder hereunder.
(iii) Upon delivery of and payment for such Shares
hereunder, the several Underwriters will acquire good, valid and
marketable title to such Shares to be sold by such Selling
Shareholder hereunder, free and clear of all liens, mortgages,
pledges, encumbrances, claims, equities and security interests
whatsoever.
(iv) The execution, delivery and performance of this
Agreement and the Custody Agreement and Power of Attorney by such
Selling Shareholder, and the consummation by such Selling
Shareholder of the transactions contemplated herein and therein
will not conflict with or result in a breach or violation of any
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the properties or assets of such Selling
Shareholder under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling
Shareholder is a party or by which it is bound or to which any of
the properties or assets of such Selling Shareholder is subject
(or any certificate or articles of incorporation or bylaws,
partnership agreement, trust document or articles of association
of such Selling Shareholder, as applicable), or any order or
decree, or statute, law, ordinance, rule or regulation applicable
to such Selling Shareholder of any court or of any governmental
agency, authority or body having jurisdiction over such Selling
Shareholder or its properties or assets.
14
(v) Such Selling Shareholder does not have any
knowledge or any reason to believe that the Registration Statement
or the Prospectus (or any amendment or supplement thereto)
contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading. The representations
and warranties of such Selling Shareholder in the Custody
Agreement and Power of Attorney are, and on the Closing Date and
any Option Closing Date will be, true and correct.
(vi) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to or which
might be reasonably expected to cause or result in stabilization
or manipulation of the price of the Common Stock, and such Selling
Shareholder is not aware of any such action taken or to be taken
by affiliates of such Selling Shareholder.
(vii) When the Registration Statement becomes effective
and at all times subsequent thereto until distribution of the
Shares is completed, such information in the Registration
Statement and Prospectus and any amendments or supplements thereto
as specifically relates to such Selling Shareholder will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(viii) Certificates in negotiable form representing all
of the Shares to be sold by such Selling Shareholder hereunder
have been placed in the custody of ____________ (the "Custodian")
under a Custody Agreement and Power of Attorney (the "Custody
Agreement and Power of Attorney"), duly executed and delivered by
such Selling Shareholder, with the Custodian having the authority
to deliver the Shares to be sold by such Selling Shareholder
hereunder, and such Selling Shareholder has duly executed and
delivered the Custody Agreement and Power of Attorney appointing
____________ and ____________ as such Selling Shareholder's agents
and attorneys-in-fact (the "Attorneys-in-Fact") with the
Attorneys-in-Fact having authority to execute and deliver this
Agreement on behalf of such Selling Shareholder, to determine the
purchase price to be paid by the Underwriters to the Selling
Shareholder as provided in Section 2, to authorize the delivery of
the Shares to be sold by it hereunder and otherwise to act on
behalf of such Selling Shareholder in connection with the
transactions contemplated by this Agreement and such Custody
Agreement.
(ix) The Shares represented by the certificates held in
custody for such Selling Shareholder under the Custody Agreement
and Power of Attorney are subject to the interests of the
Underwriters hereunder, and the arrangements made by such Selling
Shareholder for such custody, and the appointment by such Selling
Shareholder of the
15
Custodian and of the Attorneys-in-Fact under the Custody Agreement
and Power of Attorney, are, except as specifically provided
therein, irrevocable.
(x) The obligations of such Selling Shareholder
hereunder and under the Custody Agreement and Power of Attorney
shall not be terminated by any Selling Shareholder or operation of
law, whether by the death or incapacity of any individual Selling
Shareholder or, in the case of an estate or trust, by the death or
incapacity of any executor or trustee or the termination of such
estate or trust, or, in the case of a partnership, corporation or
other entity, upon any dissolution, winding up, distribution of
assets or other event affecting the legal existence of such
Selling Shareholder, or by the occurrence of any other event; and
if such Selling Shareholder or any such executor or trustee should
die or become incapacitated, or if any such estate or trust should
be terminated, or if any such partnership, corporation or other
entity should dissolve, wind up or distribute assets or any other
event affecting the legal existence of such Selling Shareholder
should occur, or if any other such event should occur before the
delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of such Selling
Shareholder in accordance with the terms and conditions of this
Agreement and of the Custody Agreement; and actions taken by the
Custodian or by the Attorneys-in-Fact pursuant to the Custody
Agreement and Power of Attorney shall be as valid as if such
death, incapacity, termination, dissolution, winding up,
distribution of assets or other event had not occurred, regardless
of whether or not the Custodian or Attorneys-in-Fact, or any of
them, shall have received notice of such death, incapacity,
termination, dissolution, winding up, distribution of assets or
other event.
(xi) Such Selling Shareholder is not prompted to sell
shares of Common Stock by any information concerning the Company
or any of its subsidiaries which is not included in the
Registration Statement.
(c) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby; and any certificate signed by or on behalf of
the Selling Shareholder as such and delivered to you or to counsel for
the Underwriters shall be deemed a representation and warranty by the
Selling Shareholder to each Underwriter as to the matters covered
thereby.
5. ADDITIONAL COVENANTS. The Company and, where expressly
indicated, the Selling Shareholder, covenant and agree with the several
Underwriters that:
16
(a) The Company will timely transmit copies of the
Prospectus, and any amendments or supplements thereto, or a Term Sheet
or Abbreviated Term Sheet, as applicable, to the SEC for filing pursuant
to Rule 424(b) of the 1933 Act Rules and Regulations.
(b) The Company will deliver to each of the Representatives,
and to counsel for the Underwriters (i) three signed copies of the
Registration Statement as originally filed, including copies of exhibits
thereto (other than any exhibits incorporated by reference therein), of
any amendments and supplements to the Registration Statement (including
all documents incorporated by reference therein) and (ii) a signed copy
of each consent and certificate included or incorporated by reference
in, or filed as an exhibit to, the Registration Statement as so amended
or supplemented; the Company will deliver to the Underwriters through
the Representatives as soon as practicable after the date of this
Agreement as many copies of the Prospectus (including all documents
incorporated by reference therein) as the Representatives may reasonably
request for the purposes contemplated by the 1933 Act; if the
Registration Statement is not effective under the 1933 Act, the Company
will use its best efforts to cause the Registration Statement to become
effective as promptly as possible, and it will notify you, promptly
after it shall receive notice thereof, of the time when the Registration
Statement has become effective; the Company will promptly advise the
Representatives of any request of the SEC for amendment of the
Registration Statement or for supplement to the Prospectus or for any
additional information, and of the issuance by the SEC or any state or
other jurisdiction or other regulatory body of any stop order under the
1933 Act or other order suspending the effectiveness of the Registration
Statement (as amended or supplemented) or preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending the
qualification or registration of the Shares for offering or sale in any
jurisdiction, and of the institution or threat of any proceedings
therefor, of which the Company shall have received notice or otherwise
have knowledge prior to the completion of the distribution of the
Shares; and the Company will use its best efforts to prevent the
issuance of any such stop order or other order and, if issued, to secure
the prompt removal thereof.
(c) The Company will not file any amendment or supplement to
the Registration Statement, the Prospectus (or any other prospectus
relating to the Shares filed pursuant to Rule 424(b) of the 1933 Act
Rules and Regulations that differs from the Prospectus as filed pursuant
to such Rule 424(b)) and will not file any document under the 1934 Act
before the completion of the distribution of the Shares by the
Underwriters if the document would be deemed to be incorporated by
reference into the Registration Statement or the Prospectus, of which
the Underwriters shall not previously have been advised and furnished
with a copy or to which the Underwriters shall have reasonably objected
or which is not in compliance with the 1933 Act Rules and Regulations;
and the Company will promptly notify you after it shall have received
notice thereof of the time when any amendment to the Registration
Statement becomes effective or when any supplement to the Prospectus has
been filed.
17
(d) During the period when a prospectus relating to any of
the Shares is required to be delivered under the 1933 Act by any
Underwriter or dealer, the Company will comply, at its own expense, with
all requirements imposed by the 1933 Act and the 1933 Act Rules and
Regulations, as now and hereafter amended, and by the rules and
regulations of the SEC thereunder, as from time to time in force, so far
as necessary to permit the continuance of sales of or dealing in the
Shares during such period in accordance with the provisions hereof and
as contemplated by the Prospectus.
(e) If, during the period when a prospectus relating to any
of the Shares is required to be delivered under the 1933 Act by any
Underwriter or dealer, (i) any event relating to or affecting the
Company or of which the Company shall be advised in writing by the
Representatives shall occur as a result of which, in the opinion of the
Company or the Representatives, the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading or (ii) it shall be necessary to amend or supplement the
Registration Statement or the Prospectus to comply with the 1933 Act,
the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules
and Regulations, the Company will forthwith at its expense prepare and
file with the SEC, and furnish to the Representatives a reasonable
number of copies of, such amendment or supplement or other filing that
will correct such statement or omission or effect such compliance;
provided, however, that should such event relate solely to the
activities of any of the Underwriters, then the Underwriters will assume
the expense of preparing and furnishing copies of any such amendment or
supplement.
(f) During the period when a prospectus relating to any of
the Shares is required to be delivered under the 1933 Act by any
Underwriter or dealer, the Company will furnish such proper information
as may be lawfully required and otherwise cooperate in qualifying the
Shares for offer and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may reasonably designate and will
file and make in each year such statements or reports as are or may be
reasonably required by the laws of such jurisdictions; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or shall be required to qualify as a dealer in securities or
to file a general consent to service of process under the laws of any
jurisdiction.
(g) In accordance with Section 11(a) of the 1933 Act and Rule
158 of the 1933 Act Rules and Regulations, the Company will make
generally available to its security holders and to holders of the
Shares, as soon as practicable, an earning statement (which need not be
audited) in reasonable detail covering the 12 months beginning not later
than the first day of the month next
18
succeeding the month in which occurred the effective date (within the
meaning of Rule 158) of the Registration Statement.
(h) During the period when a prospectus relating to any of
the Shares is required by law to be delivered by any Underwriter or
dealer, the Company will file promptly all documents required to be
filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the
1934 Act. The Company will furnish to its security holders annual
reports containing financial statements audited by independent public
accountants and quarterly reports containing financial statements and
financial information which may be unaudited. The Company will, for a
period of five years from the Closing Date, deliver to the Underwriters
at their principal executive offices a reasonable number of copies of
annual reports, quarterly reports, current reports and copies of all
other documents, reports and information furnished by the Company to its
shareholders or filed with any securities exchange or market pursuant to
the requirements of such exchange or market or with the SEC pursuant to
the 1933 Act or the 1934 Act. The Company will deliver to the
Underwriters similar reports with respect to any significant
subsidiaries, as that term is defined in the 1933 Act Rules and
Regulations, which are not consolidated in the Company's financial
statements. Any report, document or other information required to be
furnished under this paragraph (h) shall be furnished as soon as
practicable after such report, document or information becomes
available.
(i) During the period beginning from the date of this
Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions on the Shares, as determined by the
Underwriters, and (ii) 180 days after the Closing Date, the Company will
not, without the prior written consent of the Representatives, offer for
sale, sell or enter into any agreement to sell, or otherwise dispose of,
any equity securities of the Company, except for the Shares and the
shares of Common Stock issued to the Company's pursuant to the exercise
of options outstanding on the date hereof under the Company's employee
stock option plan.
(j) The Company will apply the proceeds from the sale of the
Shares as set forth in the description under "Use of Proceeds" in the
Prospectus, which description complies in all respects with the
requirements of Item 504 of Regulation S-K.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the SEC
in connection with the registration of the Shares under the 1933 Act or
relating to any documents incorporated by reference into the
Registration Statement or the Prospectus.
(l) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Company will furnish to you, as soon as they have
been prepared, copies of any unaudited
19
interim consolidated financial statements of the Company and its
subsidiaries for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the
Prospectus.
(m) Except as required by law and upon providing you with
prior written notice, prior to the Closing Date (and, if applicable, the
Option Closing Date) neither the Company nor the Selling Shareholder
will issue any press releases or other communications directly or
indirectly and will hold no press conferences with respect to the
Company or any of its subsidiaries, the financial condition, results of
operations, business, properties, assets or liabilities of the Company
or any of its subsidiaries, or the offering of the Shares, without your
prior written consent.
(n) The Company will use its best efforts to obtain approval
for, and maintain the quotation of the Shares on, The Nasdaq National
Market.
(o) The Company and its [executive] officers and directors
and each holder of 5% of shares of Common Stock or securities
convertible into or exercisable or exchangeable for, shares of Common
Stock (other than the Selling Shareholder) will furnish to you on or
prior to the date of this Agreement, letters in form and substance
satisfactory to counsel for the Underwriters, pursuant to which the
Company and its [executive] officers and directors and each holder of 5%
of shares of Common Stock or securities convertible into or exercisable
or exchangeable for, shares of Common Stock (other than the Selling
Shareholder), shall agree not to directly or indirectly, offer for sale,
contract to sell, sell, distribute, grant any option, right or warrant
to purchase, pledge, hypothecate or otherwise dispose of any shares of
Common Stock, any securities convertible into, or exercisable or
exchangeable for, Common Stock or any other rights to acquire such
shares, for a period of 180 days from the Effective Date, without the
prior written consent of X.X. Xxxxxxx & Sons, Inc., except for the
Shares sold hereunder and except for sales of shares of Common Stock to
the Company's employees pursuant to the exercise of options outstanding
on the date hereof under the Company's stock option plan.
(p) The Company and its subsidiaries will maintain and keep
accurate books and records reflecting their assets and maintain internal
accounting controls which provide reasonable assurance that (1)
transactions are executed in accordance with management's authorization,
(2) transactions are recorded as necessary to permit the preparation of
the Company's consolidated financial statements and to maintain
accountability for the assets of the Company and its subsidiaries, (3)
access to the assets of the Company and its subsidiaries is permitted
only in accordance with management's authorization, and (4) the recorded
accounts of the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.
20
(q) If the Company elects to rely on Rule 462(b) under the
1933 Act, the Company shall both file an Abbreviated Registration
Statement with the SEC in compliance with Rule 462(b) and pay the
applicable fees in accordance with Rule 111 of the 1933 Act by the
earlier of (i) 9:00 p.m., St. Louis time, on the date of this Agreement,
and (ii) the time that confirmations are given or sent, as specified by
Rule 462(b)(2).
(r) If at any time during the 90-day period after the
Registration Statement becomes effective, any rumor, publication or
event relating to or affecting the Company shall occur as a result of
which in your opinion the market price of the common stock has been or
is likely to be materially affected, regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus, except where otherwise required by law, the Company will,
after written notice from you advising the Company to the effect set
forth above, forthwith prepare, consult with you concerning the
substance of, and disseminate a press release or other public statement,
reasonably satisfactory to you, responding to or commenting on such
rumor, publication or event.
(s) The Selling Shareholder agrees with the several
Underwriters as follows:
(i) Such Selling Shareholder will cooperate to the
extent necessary to cause the Registration Statement or any post-
effective amendment thereto to become effective at the earliest
possible time.
(ii) Such Selling Shareholder will pay all Federal and
other taxes, if any, on the transfer or sale of the Shares being
sold by the Selling Shareholder to the Underwriters.
(iii) Such Selling Shareholder will do or perform all
things required to be done or performed by the Selling Shareholder
prior to the Closing Date or any Option Closing Date, as the case
may be, to satisfy all conditions precedent to the delivery of the
Shares pursuant to this Agreement.
(iv) Such Selling Shareholder will furnish to you on or
prior to the date of this Agreement, a letter in form and
substance satisfactory to counsel for the Underwriters, pursuant
to which such Selling Shareholder shall agree not to directly or
indirectly, offer for sale, contract to sell, sell, distribute,
grant any option, right or warrant to purchase, pledge,
hypothecate or otherwise dispose of any shares of Common Stock,
any securities convertible into, or exercisable or exchangeable
for, Common Stock or any other rights to acquire such shares, for
a period of one year from the Effective Date, without the prior
written consent of X.X. Xxxxxxx & Sons, Inc., except for the
Shares sold hereunder.
21
(v) Except as stated in this Agreement and in the
Preliminary Prospectus and the Prospectus, such Selling
Shareholder has not taken and will not take, directly or
indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of
the Shares.
(vi) Such Selling Shareholder will advise you promptly,
and if requested by you, will confirm such advice in writing,
within the period of time referred to in Section 5(d) hereof, of
any change in the Company's condition (financial or other), net
worth, business, affairs, management, prospects, results of
operations or cash flow or of any change in information relating
to such Selling Shareholder or the Company or any new information
relating to the Company or relating to any matter stated in the
Prospectus or any amendment or supplement thereto which comes to
the attention of such Selling Shareholder that suggests that any
statement made in the Registration Statement or the Prospectus (as
then amended or supplemented, if amended or supplemented) is or
may be untrue in any material respect or that the Registration
Statement or Prospectus (as then amended or supplemented, if
amended or supplemented) omits or may omit to state a material
fact or a fact necessary to be stated therein in order to make the
statements therein not misleading in any material respect, or of
the necessity to amend or supplement the Prospectus (as then
amended or supplemented, if amended or supplemented) in order to
comply with the 1933 Act or any other law.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase and pay for the Shares, as
provided herein, shall be subject to the accuracy, as of the date hereof
and as of the Closing Date (and, if applicable, the Option Closing
Date), of the representations and warranties of the Company and the
Selling Shareholder contained herein, to the performance by the Company
and the Selling Shareholder of their covenants and obligations
hereunder, and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective not later than 1:00 p.m.,
St. Louis time, on the date hereof, or, with your consent, at a later
date and time, not later than 1:00 p.m., St. Louis time, on the first
business day following the date hereof, or at such later date and time
as may be approved by the Representatives; if the Company has elected to
rely on Rule 462(b) under the 1933 Act, the Abbreviated Registration
Statement shall have become effective not later than the earlier of
(x) 10:00 p.m. St. Louis time, on the date hereof, or (y) at such later
date and time as may be approved by the Representatives. All filings
required by Rule 424 and Rule 430A of the 1933 Act Rules and Regulations
shall have been made. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceeding for that purpose shall have been initiated or,
to the knowledge of the Company or any
22
Underwriter, threatened or contemplated by the SEC, and any request of
the SEC for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with
to the reasonable satisfaction of the Underwriters.
(b) No Underwriter shall have advised the Company on or prior
to the Closing Date (and, if applicable, the Option Closing Date), that
the Registration Statement or Prospectus or any amendment or supplement
thereto contains an untrue statement of fact which, in the opinion of
counsel to the Underwriters, is material, or omits to state a fact
which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(c) On the Closing Date (and, if applicable, the Option
Closing Date), you shall have received the opinion of Xxxxxxxx Xxxxxx
LLP, counsel for the Company, addressed to you and dated the Closing
Date (and, if applicable, the Option Closing Date), to the effect that:
(i) The Registration Statement and all post-effective
amendments thereto and the Abbreviated Registration Statement, if
any, have become effective under the 1933 Act; any required filing
of the Prospectus or any supplement thereto pursuant to Rule
424(b) or otherwise has been made in the manner and within the
time period required thereby; and, to the knowledge of such
counsel after due inquiry, no stop or other order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending
or contemplated under the 1933 Act or under the securities laws of
any jurisdiction.
(ii) The Registration Statement and the Prospectus, and
each amendment or supplement thereto (including any document
incorporated by reference into the Prospectus), as of their
respective effective or issue date, comply as to form and appear
on their face to be appropriately responsive in all material
respects to the requirements of Form S-2 under the 1933 Act and
the applicable 1933 Act Rules and Regulations (except that such
counsel need express no opinion as to the financial statements or
other financial and statistical data included or incorporated by
reference in the Registration Statement); the Company is eligible
to register the Shares on Form S-2; and, as of the date they were
filed with the SEC, the documents incorporated by reference in the
Prospectus appear on their face to comply as to form and be
appropriately responsive in all material respects with the
requirements of the 1934 Act and the applicable 1934 Act Rules and
Regulations (except that such counsel need express no opinion as
to the financial statements or other financial or statistical data
incorporated by reference in the Registration Statement).
(iii) The descriptions in the Registration Statement and
Prospectus of statutes, laws, ordinances, rules, regulations,
legal or governmental proceedings, contracts and
23
other documents are accurate in all material respects and fairly
present the information required to be shown under the 1933 Act
and the 1933 Act Rules and Regulations.
(iv) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally
binding obligation of the Company enforceable against the Company
in accordance with its terms, except as enforceability may be
limited by the Exceptions and except to the extent the
enforceability of the indemnification and contribution provisions
of Section 7 of the Agreement may be limited by public policy
considerations as expressed in the 1933 Act and state securities
law as construed by courts of competent jurisdiction.
(v) The Company and its U.S. subsidiaries have been
duly and are validly existing as corporations in good standing
under the laws of the states or other jurisdictions in which they
are incorporated, with full power and authority (corporate and
other) to own, lease and operate their properties and conduct
their businesses as described in the Prospectus and, with respect
to the Company, to execute and deliver, and perform the Company's
obligations under, this Agreement; the Company and its U.S.
subsidiaries are duly qualified to do business as foreign
corporations in good standing in each state or other jurisdiction
in which their ownership or leasing of property or conduct of
business legally requires such qualification, except where the
failure to be so qualified, individually or in the aggregate,
would not have a Material Adverse Effect.
(vi) To the best of such counsel's knowledge, and after
due inquiry, the entities listed on Schedule II are the only
subsidiaries, direct or indirect, of the Company. The Company
owns, directly or indirectly through other subsidiaries, the
percentage indicated on Schedule II of the outstanding shares of
capital stock or other securities evidencing equity ownership of
such subsidiaries, and all such securities have been duly
authorized and validly issued, are fully paid and non-assessable
and, to the knowledge of such counsel, are owned by the Company
free and clear of any mortgage, pledge, lien, encumbrance, charge
or adverse claim (except for pledges on those shares to
NationsBank, N.A.) and are not the subject of any agreement or
understanding with any person, and were not issued in violation of
any preemptive or similar rights; and, to the knowledge of such
counsel, except as disclosed in the Prospectus, there are no
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale, or instruments
related to or entitling any person to purchase or otherwise
acquire any shares of, or any security convertible into or
exercisable or exchangeable for, any such shares of capital stock
or other ownership interest of any of such subsidiaries.
24
(vii) The issuance and sale of the Shares and the
execution, delivery and performance by the Company of this
Agreement, and the consummation of the transactions herein
contemplated, will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any properties or assets of the
Company or any of its U.S. subsidiaries under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel after due inquiry to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries is
subject, except to such extent as, individually or in the
aggregate, does not have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the Company's
articles of incorporation or bylaws or any statute, rule,
regulation or other law (which statute, rule, regulation or other
law would, in the experience of counsel who regularly represent
persons such as the Company, be recognized as applicable to the
Company and its subsidiaries or any of their properties), or any
order or judgment known to such counsel after due inquiry, of any
court or governmental agency or body having jurisdiction over the
Company or any of its U.S. subsidiaries or any of their
properties.
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required in connection with the execution,
delivery and performance of this Agreement, and the issuance and
sale of the Shares or the consummation of the transactions
contemplated hereby, except such as may be required under the 1933
Act or the 1933 Act Rules and Regulations and have been obtained,
or as may be required by the NASD or under state securities or
blue sky laws in connection with the purchase and distribution of
the Shares by the Underwriters. Each of the Company and its U.S.
subsidiaries has filed all Notices pursuant to, and has obtained
all Approvals required to be obtained under, and has otherwise
complied with all requirements of, all applicable laws and
regulations in connection with the issuance and sale of the
Shares, in each case with such exceptions, individually or in the
aggregate, as would not affect the validity of the Shares, their
issuance or the transactions contemplated hereby or have a
Material Adverse Effect; and no such Notices or Approvals are
required to be filed or obtained by the Company or any of its
subsidiaries in connection with the execution, delivery and
performance of this Agreement, the issuance and sale of the Shares
or the transactions contemplated hereby, in each case with such
exceptions, individually or in the aggregate, as would not affect
the validity of the Shares, their issuance or the transactions
contemplated hereby or have a Material Adverse Effect, except such
as may be required under the 1933 Act or the 1933 Act Rules and
Regulations and have been obtained, or as may be required by the
NASD or under state
25
securities or blue sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(ix) To the knowledge of such counsel after due
inquiry and other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company
or any of its U.S. subsidiaries is a party or of which any
property of the Company or any of its U.S. subsidiaries is the
subject that, if determined adversely to the Company or any of its
U.S. subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations
of the Company and its subsidiaries taken as a whole; and, to the
knowledge of such counsel after due inquiry, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others.
(x) The Company has duly and validly authorized capital
stock as set forth under the caption "Capitalization" in the
Prospectus; all outstanding shares of Common Stock of the Company
and the Shares conform, or when issued will conform, as to legal
matters to the description thereof in the Prospectus and have been
duly authorized, validly issued, fully paid and non-assessable;
and the Shares to be sold by the Company have been duly authorized
and, when delivered and paid for in accordance with this
Agreement, will be validly issued, fully paid and non-assessable.
All corporate action required to be taken by the Company for the
authorization, issue and sale of the Shares has been duly and
validly taken. The Shares are duly authorized for trading,
subject to official notice of issuance and evidence of
satisfactory distribution, on The Nasdaq National Market. The
form of specimen certificate representing the Shares filed as an
exhibit to the Registration Statement is in valid and sufficient
form. The issuance of the Shares to be purchased from the Company
hereunder is not subject to preemptive or other similar rights,
or, except as otherwise disclosed in the Prospectus, any
restriction upon the voting or transfer thereof pursuant to
applicable law or the articles of incorporation, bylaws or
governing documents of the Company or any agreement to which the
Company or any of its subsidiaries is a party or by which any of
them may be bound; and, to such counsel's knowledge, except as
described in the Prospectus, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or rights related to or entitling
any person to purchase or otherwise acquire any shares of, or any
security convertible into or exercisable or exchangeable for, the
capital stock of, or other ownership interest in, the Company.
(xi) To the knowledge of such counsel after due inquiry,
except those of which the failure to hold would not have a
Material Adverse Effect the Company and each of its subsidiaries
hold all licenses, certificates, permits and approvals from all
state, federal and other regulatory authorities, and have
satisfied in all material respects the
26
requirements imposed by regulatory bodies, administrative agencies
or other governmental bodies, agencies or officials, that are
required for the Company and its subsidiaries lawfully to own,
lease and operate its properties and conduct its business as
described in the Prospectus, and, to the knowledge of such counsel
after due inquiry, each of the Company and its subsidiaries is
conducting its business in compliance in all material respects
with all of the laws, rules and regulations of each jurisdiction
in which it conducts its business.
(xii) The statements made in the Prospectus under the
captions "Risk Factors," "Business," "Description of Capital
Stock" and "Shares Eligible for Future Sale," Item 15 of Part II
of the Registration Statement, and in the Company's Annual Report
on Form 10-K of the year ended December 31, 1998 under Item I,
"Business," Item 2, "Properties," Item 11, "Executive
Compensation" and Item 13, "Certain Relationships and Related
Transactions," to the extent that they constitute summaries of
documents referred to therein or matters of law or legal
conclusions, have been reviewed by such counsel and are accurate
summaries and fairly present the information disclosed therein.
(xiii) Neither the Company nor any of its subsidiaries
is, or with the giving of notice or lapse of time or both would
be, in default or violation with respect to its articles of
incorporation or by-laws. To the knowledge of such counsel after
due inquiry, neither the Company nor any of its subsidiaries is,
or with the giving of notice or lapse of time or both would be, in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets
of the Company or any of its subsidiaries is subject, or in
violation of any statutes, laws, ordinances or governmental rules
or regulations or any orders or decrees to which it is subject,
including, without limitation, Section 13 of the 1934 Act, and
neither the Company nor any of its subsidiaries has failed to
obtain any other license, permit, franchise, easement, consent, or
other governmental authorization necessary to the ownership,
leasing and operation of its properties or to the conduct of its
business, which default, violation or failure, individually or in
the aggregate, would have a Material Adverse Effect.
(xiv) To the knowledge of such counsel after due inquiry,
(A) there are no material (individually, or in the aggregate)
legal, governmental or regulatory proceedings pending or
threatened to which the Company or any of its subsidiaries is a
party or of which the business or properties of the Company or any
of its subsidiaries is the subject which are not disclosed in the
Registration Statement and Prospectus; (B) there are no contracts
or documents of a character required to be described in the
Registration
27
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement which are not described or filed as
required; and (C) there are no statutes, ordinances, laws, rules
or regulations required to be described in the Registration
Statement or Prospectus which are not described as required.
(xv) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be a "holding company,"
or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company,"
as such terms are defined in the 0000 Xxx.
(xvi) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment
company" or an entity "controlled" by an "investment company," as
such terms are defined in the 0000 Xxx.
(xvii) All the shares of capital stock of the Company
issued subsequent to January 1, 1996 were issued and sold in
compliance with the registration requirements or (or exemptions
therefrom) all applicable federal and state securities laws.
(xviii) To the knowledge of such counsel after due
inquiry and except as disclosed in the Prospectus, no holder of
any security of the Company has any right to require registration
of shares of Common Stock or any other security of the Company
because of the filing of the Registration Statement or the
consummation of the transactions contemplated hereby and, except
as disclosed in the Prospectus, no person has the right to require
registration under the 1933 Act of any shares of Common Stock or
other securities of the Company.
Such counsel shall confirm that during the preparation of the
Registration Statement and Prospectus, such counsel participated in
conferences with the Representatives and their counsel and with officers
and representatives of the Company and its independent accountants, at
which conferences the contents of the Registration Statement and the
Prospectus (including all documents filed under the 1934 Act and deemed
incorporated by reference therein) were discussed, reviewed and revised.
On the basis of the information which was developed in the course
thereof, considered in light of such counsel's understanding of
applicable law and the experience gained by such counsel through their
practice thereunder, without such counsel assuming responsibility for
the accuracy and completeness of such statements except to the extent
expressly provided above, such counsel shall confirm that nothing came
to their attention that would lead them to believe that either the
Registration Statement (including any document filed under the 1934 Act
and deemed incorporated by reference therein), as of the Effective Date,
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 therein, in the light of the circumstances under
28
which they were made, not misleading, or the Prospectus or any amendment
or supplement thereto (including any document filed under the 1934 Act
and deemed incorporated by reference therein) as of its respective issue
date and as of the Closing Date, or, if applicable, the Option Closing
Date, contained or contains any 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 therein, in the light of the
circumstances under which they were made, not misleading (other than the
financial statements or other financial and statistical data as to which
such counsel need express no view).
In rendering the foregoing opinion, such counsel may rely, (1) as
to matters involving laws of any jurisdiction other than Missouri or the
United States, upon opinions addressed to the Underwriters of other
counsel satisfactory to them and Xxxxx Xxxx LLP, including the opinion
of Bahamian counsel with respect to the Bahamian subsidiaries of the
Company, and (2) as to all matters of fact, upon certificates and
written statements of the executive officers of, and accountants for,
the Company, provided, in either case, that such counsel shall state in
their opinion that they and the Underwriters are justified in relying
thereon.
(d) On the Closing Date (and, if applicable, the Option
Closing Date), you shall have received the opinion of Bahamian counsel
to the Company, addressed to you and dated the Closing Date (and, if
applicable, the Option Closing Date), to the effect that:
(i) Each of the Company's Bahamian subsidiaries has
been duly incorporated and is validly existing under the laws of
its respective jurisdiction of incorporation, with full corporate
power and authority to own, lease and operate their properties and
conduct their business as described in the Prospectus; the
Company's Bahamian subsidiaries are duly qualified, licensed or
authorized in each other jurisdiction where it is required to be
so qualified, licensed or authorized to conduct its business as
described in the Prospectus, except where the failure to be so
qualified would not have a Material Adverse Effect.
(ii) The execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares,
and the consummation of the transactions contemplated hereby will
not violate, conflict with or constitute a breach of any of the
terms or provisions of, or a default under (or an event that with
notice or the lapse of time, or both, would constitute a default),
or require consent under, or result in the imposition of a lien or
encumbrance on any properties of the Company's Bahamian
subsidiaries, or an acceleration of indebtedness pursuant to (i)
any bond, debenture, note, indenture, mortgage, deed of trust or
other agreement or instrument known to such counsel after due
inquiry to which any of the Company's Bahamian subsidiaries is a
party or by which any of them or their property is or may be
bound, (ii) any statute, rule or regulation known to such counsel
to be applicable to any of the Company's Bahamian
29
subsidiaries or any of their assets or properties, or (iii) any
judgment, order or decree of any Bahamian court or governmental
agency or authority having jurisdiction over any of the Company's
Bahamian subsidiaries or their assets or properties. No consent,
approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, any Bahamian court or
governmental agency, body or administrative agency is required for
the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
(iii) No action has been taken and no Bahamian statute,
rule or regulation or order has been enacted, adopted or issued by
any Bahamian governmental agency that prevents the issuance of the
Shares; no injunction, restraining order or order of any nature by
a Bahamian court of competent jurisdiction has been issued that
prevents the issuance and sale of the Shares and to the best
knowledge of such counsel, no action, suit or proceeding is
pending against or affecting or threatened against, any of the
Company's Bahamian subsidiaries before any court or arbitrator or
any governmental body, agency or official which, if adversely
determined, would prohibit, interfere with or adversely affect the
issuance or marketability of the Shares or in any manner draw into
question the validity of this Agreement and the Shares or have a
Material Adverse Effect.
(iv)
Each of the Company's Bahamian subsidiaries holds
all licenses, certificates, permits and approvals from all state,
federal, foreign and other regulatory authorities, and have
satisfied in all material respects the requirements imposed by
regulatory bodies, administrative agencies or other governmental
bodies, agencies or officials, that are required for the Company's
Bahamian subsidiaries lawfully to own, lease and operate their
properties and conduct their businesses as described in the
Prospectus, and, each of the Company's Bahamian subsidiaries is
conducting its business in compliance in all material respects
with all of the laws, rules and regulations of each jurisdiction
in which it conducts its business (including, without limitation,
insurance and insurance holding company laws, rules and
regulations); each of the Company's Bahamian subsidiaries has
filed all Notices required to be filed under applicable laws,
rules and regulations, including, without limitation, the
insurance laws and regulations of the jurisdictions which are
applicable to it, in each case, with such exceptions as would not
have a Material Adverse Effect; and, except as otherwise
specifically described in the Prospectus, none of the Company's
subsidiaries has received any notification from any court or
governmental body, authority or agency, including without
limitation, any insurance regulatory authority, to the effect that
any additional Approvals from such regulatory authority is needed
to be obtained by any of them, in any case where it could be
reasonably expected that obtaining such Approvals or the failure
to obtain such Approvals would have a Material Adverse Effect.
30
(v) As of the Closing Date and as of the date of each
Prospectus, all of the outstanding shares of capital stock of each
of the Company's Bahamian subsidiaries have been duly and validly
authorized and issued and are fully paid and non-assessable and,
except as otherwise set forth in the Prospectus, all outstanding
shares of capital stock of the Company's Bahamian subsidiaries are
owned by the Company either directly or through wholly owned
subsidiaries and all such shares so held by the Company are held
free and clear of any security interest, claim, lien, limitation
on voting rights or encumbrances.
The opinions of such counsel described in this paragraph shall be
rendered to you at the request of the Company and shall so state
therein. Such opinions may contain customary recitals, conditions and
qualifications.
(e) On the Closing Date (and, if applicable, the Option
Closing Date), you shall have received the opinion of Xxxxxxxx Xxxxxx
LLP, counsel to the Selling Shareholder, addressed to you and dated the
Closing Date (and, if applicable, the Option Closing Date), to the
effect that:
(i) The Custody Agreement and Power of Attorney has
been duly executed and delivered by the Selling Shareholder and
constitutes a legal, valid and binding agreement of such Selling
Shareholder enforceable in accordance with its terms.
(ii) This Agreement has been duly authorized, executed
and delivered on behalf of the Selling Shareholder, and is a
legal, valid and binding obligation of the Selling Shareholder.
The execution and delivery of this Agreement and the Custody
Agreement and Power of Attorney by such Selling Shareholder, the
consummation by such Selling Shareholder of the transactions
contemplated herein and therein and the fulfillment by such
Selling Shareholder of the terms hereof and thereof will not
result in a breach or violation of any terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
properties or assets of such Selling Shareholder under any bond,
debenture, note or other evidence of indebtedness or any
indenture, mortgage, deed of trust, sale and leaseback
arrangement, joint venture or any other agreement or instrument to
which any such Selling Shareholder is a party, or by which it is
bound or to which any of the properties or assets of any such
Selling Shareholder is subject (or any certificate or articles of
incorporation or bylaws, partnership agreement, trust document or
articles of association of any such Selling Shareholder, as
applicable), or any order or decree, or statute, law, ordinance,
rule or regulation applicable (which statute, law, ordinance, rule
or regulation would, in the experience of counsel who regularly
represent persons such as the Company, be recognized as applicable
to the Selling Shareholder or any of its
31
properties) to any such Selling Shareholder of any court or of any
governmental agency, authority or body having jurisdiction over
any such Selling Shareholder or its properties.
(iii) The Selling Shareholder has full legal right, power
and authority, and any approval required by law (other than as
required by the 1933 Act, the NASD and state securities and Blue
Sky Laws) to sell, assign, transfer and deliver the Shares to be
sold by such Selling Shareholder.
(iv) No consent, approval, authorization or order of any
court, or governmental agency or body is required for consummation
of the transactions contemplated by this Agreement in connection
with the Shares to be sold by the Selling Shareholder hereunder
except such as may be required under the 1933 Act or the 1933 Act
Rules and Regulations or as may be required by the NASD or under
state securities laws.
(v) The Selling Shareholder has good, valid and
marketable title to the Shares being sold by such Selling
Shareholder hereunder, free and clear of all liens, mortgages,
pledges, encumbrances, claims, equities and security interests
whatsoever, including any restriction on transfer other than
pursuant to this Agreement and the Custody Agreement and Power of
Attorney, and upon payment therefor by the Underwriters will
transfer to the Underwriters good, valid and marketable title to
the Shares being sold by such Selling Shareholder on the Closing
Date (and, if applicable, the Option Closing Date), free and clear
of all liens, mortgages, pledges, encumbrances, claims, equities
and security interests whatsoever, including any restriction or
transfer other than pursuant to this Agreement and the Custody
Agreement and Power of Attorney.
In rendering the foregoing opinion, such counsel may rely, (1) as
to matters involving laws of any jurisdiction other than Missouri or the
United States, upon opinions addressed to the Underwriters of other
counsel satisfactory to them and Xxxxx Xxxx LLP, and (2) as to all
matters of fact, upon certificates and written statements of the Selling
Shareholder, provided, in either case, that such counsel shall state in
their opinion that they and the Underwriters are justified in relying
thereon.
(f) You shall have received on the Closing Date (and, if
applicable, the Option Closing Date), from Xxxxx Xxxx LLP, counsel to
the Underwriters, such opinion or opinions, dated the Closing Date (and,
if applicable, the Option Closing Date) with respect to such matters as
you may reasonably require; and the Company and Selling Shareholder
shall have furnished to such counsel such documents as they reasonably
request for the purposes of enabling them to review or pass on the
matters referred to in this Section 6 and in order to evidence the
accuracy, completeness and satisfaction of the representations,
warranties and conditions herein contained.
32
(g) You shall have received at or prior to the Closing Date
from Xxxxx Xxxx LLP a memorandum or memoranda, in form and substance
satisfactory to you, with respect to the qualification for offering and
sale by the Underwriters of the Shares under state securities or Blue
Sky laws of such jurisdictions as the Underwriters may have designated
to the Company.
(h) On the business day immediately preceding the date of
this Agreement and on the Closing Date (and, if applicable, the Option
Closing Date), you shall have received from Deloitte & Touche LLP, a
letter or letters, dated the date of this Agreement and the Closing Date
(and, if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to you, confirming that they are independent
public accountants with respect to the Company within the meaning of the
1933 Act and the published Rules and Regulations, and stating to the
effect set forth in Schedule III hereto.
(i) Except as contemplated in the Prospectus, (i) neither the
Company nor any of its subsidiaries shall have sustained since the date
of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree; and (ii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, or entered into any
transactions, and there shall not have been any change in the capital
stock or short-term or long-term debt of the Company and its
subsidiaries or any change, or any development involving or which might
reasonably be expected to involve a prospective change in the condition
(financial or other), net worth, business, affairs, management,
prospects, results of operations or cash flow of the Company or its
subsidiaries, the effect of which, in any such case described in clause
(i) or (ii), is in your judgment so material or adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered on such Closing Date (and, if
applicable, the Option Closing Date) on the terms and in the manner
contemplated in the Prospectus.
(j) There shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or the American Stock Exchange
or The Nasdaq National Market or the establishing on such exchanges or
market by the SEC or by such exchanges or markets of minimum or maximum
prices which are not in force and effect on the date hereof; (ii) a
suspension or material limitation in trading in the Company's securities
on The Nasdaq National Market or the establishing on such market by the
SEC or by such market of minimum or maximum prices which are not in
force and effect on the date hereof; (iii) a general moratorium on
commercial banking activities declared by either federal or any state
authorities; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, which in your
33
judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares in the manner contemplated
in the Prospectus; or (v) any calamity or crisis, change in national,
international or world affairs, act of God, change in the international
or domestic markets, or change in the existing financial, political or
economic conditions in the United States or elsewhere, which in your
judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares in the manner contemplated
in the Prospectus.
(k) You shall have received certificates, dated the Closing
Date (and, if applicable, the Option Closing Date) and signed by the
President and the Chief Financial Officer of the Company, in their
capacities as such, stating that:
(i) the condition set forth in Section 6(a) has been
fully satisfied;
(ii) they have carefully examined the Registration
Statement and the Prospectus as amended or supplemented and all
documents incorporated by reference therein and nothing has come
to their attention that would lead them to believe that either the
Registration Statement or the Prospectus, or any amendment or
supplement thereto or any documents incorporated by reference
therein as of their respective effective, issue or filing dates,
contained, and the Prospectus as amended or supplemented and all
documents incorporated by reference therein and when read together
with the documents incorporated by reference therein, at such
Closing Date, contains any untrue statement of a material fact, or
omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(iii) since the Effective Date, there has occurred no
event required to be set forth in an amendment or supplement to
the Registration Statement or the Prospectus which has not been so
set forth and there has been no document required to be filed
under the 1934 Act and the 1934 Act Rules and Regulations that
upon such filing would be deemed to be incorporated by reference
into the Prospectus that has not been so filed;
(iv) all representations and warranties made herein by
the Company are true and correct at such Closing Date, with the
same effect as if made on and as of such Closing Date, and all
agreements herein to be performed or complied with by the Company
on or prior to such Closing Date have been duly performed and
complied with by the Company;
(v) neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial
statements included or incorporated by reference in the
34
Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree;
(vi) except as disclosed in the Prospectus, subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries has incurred any liabilities or
obligations, direct or contingent, other than in the ordinary
course of business, or entered into any transactions not in the
ordinary course of business, which in either case are material to
the Company or such subsidiary; and there has not been any change
in the capital stock or material increase in the short-term debt
or long-term debt of the Company or any of its subsidiaries or any
material adverse change or any development involving or which may
reasonably be expected to involve a prospective material adverse
change, in the condition (financial or other), net worth,
business, affairs, management, prospects, results of operations or
cash flow of the Company and its subsidiaries taken as a whole;
and there has been no dividend or distribution of any kind, paid
or made by the Company on any class of its capital stock;
(vii) there has not been any change or decrease specified
in paragraph 5(a) of the letter or letters delivered to the
Underwriters referred to in Section 6(g) above, except those
changes and decreases that are disclosed therein; and
(viii) covering such other matters as you may
reasonably request.
(l) You shall have received certificates, dated the Closing
Date (and, if applicable, the Option Closing Date) signed by the Selling
Shareholder, stating that (i) all representations and warranties made
herein by such Selling Shareholder are true and correct at such Closing
Date, with the same effect as if made on and as of such Closing Date,
and all agreements herein to be performed or complied with by such
Selling Shareholder on or prior to such Closing Date have been duly
performed or complied with by such Selling Shareholder and (ii) covering
such other matters as you may reasonably request.
(m) The Company and the Selling Shareholder shall not have
failed, refused, or been unable, at or prior to the Closing Date (and,
if applicable, the Option Closing Date) to have performed any agreement
on their part to be performed or any of the conditions herein contained
and required to be performed or satisfied by them at or prior to such
Closing Date.
(n) The Company and the Selling Shareholder shall have
furnished to you at the Closing Date (and, if applicable, the Option
Closing Date) such further information, opinions, certificates, letters
and documents as you may have reasonably requested.
35
(o) The Shares shall have been approved for trading upon
official notice of issuance on The Nasdaq National Market.
(p) You shall have received duly and validly executed letter
agreements referred to in Section 5(o) hereof.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are satisfactory in
form and substance to you and to Xxxxx Xxxx LLP, counsel for the several
Underwriters. The Company and the Selling Shareholder will furnish you
with such signed and conformed copies of such opinions, certificates,
letters and documents as you may request.
If any of the conditions specified above in this Section 6 shall
not have been satisfied at or prior to the Closing Date (and, if
applicable, the Option Closing Date) or waived by you in writing, this
Agreement may be terminated by you on notice to the Company and the
Selling Shareholder.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Selling Shareholder jointly and severally will indemnify and hold
harmless each Underwriter, and each person who controls each Underwriter
within the meaning of the 1933 Act and 1934 Act, for and against any
losses, damages or liabilities, joint or several, to which such
Underwriter, or such person who controls an Underwriter within the
meaning of the 1933 Act and 1934 Act, may become subject, under the
1933 Act or otherwise, insofar as such losses, damages or liabilities
(or actions or claims in respect thereof) arise out of or are based upon
(i) an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus or any other prospectus relating to the Shares, or any
amendment or supplement thereto, or in any blue sky application or
other document executed by the Company or based on any information
furnished in writing by the Company, filed in any state or other
jurisdiction in order to qualify any or all of the Shares under the
securities laws thereof (the "Blue Sky Application"), or (ii) 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 and each person who
controls such Underwriter within the meaning of the 1933 Act and 1934
Act for any legal or other expenses incurred by such Underwriter or such
person who controls such Underwriter within the meaning of the 1933 Act
or 1934 Act in connection with investigating, preparing, pursuing or
defending against or appearing as a third party witness in connection
with any such loss, damage, liability or action or claim, including,
without limitation, any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees
and expenses of counsel to the indemnified party, as such expenses are
incurred (including such losses, damages, liabilities or
36
expenses to the extent of the aggregate amount paid in settlement of any
such action or claim, provided that (subject to Section 7(d) hereof) any
such settlement is effected with the written consent of the Company);
provided, however, that the Company and the Selling Shareholder shall
not be liable in any such case to the extent, but only to the extent,
that any such loss, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or any other prospectus relating to the Shares, or any
such amendment or supplement, in reliance upon and in conformity with
written information relating to the Underwriter furnished to the Company
by you or by any Underwriter through you, expressly for use in the
preparation thereof (as provided in Section 14 hereof) and provided
further, that the liability of the Selling Shareholder pursuant to this
Section 7(a) shall not exceed the product of the number of Shares sold
by such Selling Shareholder and the public offering price per share of
the Shares set forth in the Prospectus.
(b) The Selling Shareholder will indemnify and hold harmless
each Underwriter and each person who controls each Underwriter within
the meaning of the 1933 Act and 1934 Act for and against any losses,
damages or liabilities to which the Company may become subject, under
the 1933 Act or otherwise, insofar as such losses, damages or
liabilities (or actions or claims in respect thereof) arise out of or
are based upon (i) an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the
Shares, or any amendment or supplement thereto, or any Blue Sky
Application, or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus or any other prospectus relating
to the Shares, or any such amendment or supplement, or any Blue Sky
Application, in reliance upon and in conformity with written information
furnished to the Company or any Underwriter by such Selling Shareholder
specifically for use in the preparation thereof, and will reimburse each
Underwriter or person who controls such Underwriter within the meaning
of the 1933 Act and 1934 Act for any legal or other expenses incurred by
such Underwriter or such person who controls such Underwriter within the
meaning of the 1933 Act and 1934 Act, in connection with investigating,
preparing, pursuing or defending against or appearing as a third party
witness in connection with any such loss, damage, liability or action or
claim, including, without limitation, any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to the indemnified party, as
such expenses are incurred (including such losses, damages, liabilities
or expenses to the extent of the aggregate amount paid in settlement of
any such action or claim, provided that (subject to Section 7(d) hereof)
any such settlement is effected with the written consent of such Selling
Shareholder).
37
(c) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors and each
of it officers who have signed the Registration Statement and the
Selling Shareholder for and against any losses, damages or liabilities
to which the Company may become subject, under the 1933 Act or
otherwise, insofar as such losses, damages or liabilities (or actions or
claims in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus
or any other prospectus relating to the Shares, or any amendment or
supplement thereto, or any Blue Sky Application, or arise out of are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus or any other prospectus relating
to the Shares, or any such amendment or supplement, or any Blue Sky
Application, in reliance upon and in conformity with written information
relating to the Underwriter furnished to the Company by you or by any
Underwriter through you, expressly for use in the preparation thereof
(as provided in Section 14 hereof), and will reimburse the Company, each
of its directors and each of it officers who have signed the
Registration Statement or such Selling Shareholder for any legal or
other expenses incurred by the Company, each or its directors and each
of its officers who have signed the Registration Statement, or such
Selling Shareholder, as the case may be, in connection with
investigating or defending any such action or claim as such expenses are
incurred (including such losses, damages, liabilities or expenses to the
extent of the aggregate amount paid in settlement of any such action or
claim, provided that (subject to Section 7(d) hereof) any such
settlement is effected with the written consent of the Underwriters).
(d) Promptly after receipt by an indemnified party under
Section 7(a), 7(b) or 7(c) hereof of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party under Section 7(a), 7(b) or
7(c) hereof, notify each such indemnifying party in writing of the
commencement thereof, but the failure so to notify such indemnifying
party shall not relieve such indemnifying party from any liability
except to the extent that it has been prejudiced in any material respect
by such failure or from any liability that it may have to any such
indemnified party otherwise than under Section 7(a), 7(b) or 7(c)
hereof. In case any such action shall be brought against any such
indemnified party and it shall notify each indemnifying party of the
commencement thereof, each such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party under Section 7(a), 7(b) or 7(c) hereof
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of such indemnified party, be counsel to such indemnifying
party), and, after notice from such indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified
38
party under Section 7(a), 7(b) or 7(c) hereof for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred
by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. The indemnified party shall
have the right to employ its own counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such
indemnified party at the expense of the indemnifying party has been
authorized by the indemnifying party, (ii) the indemnified party shall
have been advised by such counsel that there may be a conflict of
interest between the indemnifying party and the indemnified party in the
conduct of the defense, or certain aspects of the defense, of such
action (in which case the indemnifying party shall not have the right to
direct the defense of such action with respect to those matters or
aspects of the defense on which a conflict exists or may exist on behalf
of the indemnified party) or (iii) the indemnifying party shall not in
fact have employed counsel reasonably satisfactory to such indemnified
party to assume the defense of such action, in any of which events such
fees and expenses to the extent applicable shall be borne, and shall be
paid as incurred, by the indemnifying party. If at any time such
indemnified party shall have requested such indemnifying party under
Section 7(a), 7(b) or 7(c) hereof to reimburse such indemnified party
for fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by Section
7(a), 7(b) or 7(c) hereof effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of such request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request for reimbursement
prior to the date of such settlement. No such indemnifying party shall,
without the written consent of such indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether
or not such indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of such indemnified party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any such indemnified party. In no event shall
such indemnifying parties be liable for the fees and expenses of more
than one counsel, including any local counsel, for all such indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(e) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to indemnify or hold harmless an
indemnified party under Section 7(a), 7(b) or 7(c) hereof in respect of
any losses, damages or liabilities (or actions or claims in respect
thereof) referred to therein, then each indemnifying party under Section
7(a), 7(b) or 7(c) hereof shall contribute to the amount paid or payable
by such indemnified party as a result of such losses,
39
damages or liabilities (or actions or claims in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Shareholder, on the one hand, and the
Underwriters, on the other hand, from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to
give the notice required under Section 7(d) hereof and such indemnifying
party was prejudiced in a material respect by such failure, then each
such indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault, as
applicable, of the Company and the Selling Shareholder, on the one hand,
and the Underwriters, on the other hand, in connection with the
statements or omissions that resulted in such losses, damages or
liabilities (or actions or claims in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received
by, as applicable, the Company and the Selling Shareholder, on the one
hand, and the Underwriters, on the other hand, shall be deemed to be in
the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company and the Selling Shareholder
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault, as applicable, of the Company or the
Selling Shareholder, on the one hand, and the Underwriters, on the other
hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Shareholder, on the
one hand, or the Underwriters, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Shareholder and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(e) were determined
by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to above in
this Section 7(e). The amount paid or payable by such an indemnified
party as a result of the losses, damages or liabilities (or actions or
claims in respect thereof) referred to above in this Section 7(e) shall
be deemed to include any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7(e),
no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Shares underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages that 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 0000 Xxx) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this Section
7(e) to contribute are several in proportion to their respective
underwriting obligations with respect to the Shares and not joint.
40
(f) The obligations of the Company and the Selling
Shareholder under this Section 7 shall be in addition to any liability
that the Company and the Selling Shareholder may otherwise have and
shall extend, upon the same terms and conditions, to each officer,
director, employee, agent or other representative and to each person, if
any, who controls any Underwriter within the meaning of the 1933 Act;
and the obligations of the Underwriters under this Section 7 shall be in
addition to any liability that the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each
officer and director of the Company who signed the Registration
Statement and to each person, if any, who controls the Company within
the meaning of the 1933 Act and 1934 Act and to each person, if any, who
controls the Selling Shareholder within the meaning of the 1933 Act and
1934 Act.
(g) The parties to this Agreement hereby acknowledge that
they are sophisticated business persons who were represented by counsel
during the negotiations regarding the provisions hereof, including,
without limitation, the provisions of this Section 7, and are fully
informed regarding such provisions. They further acknowledge that the
provisions of this Section 7 fairly allocate the risks in light of the
ability of the parties to investigate the Company and its business in
order to assure that adequate disclosure is made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, and any
supplement or amendment thereof, as required by the 1933 Act.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. The
respective representations, warranties, agreements and statements of the
Company and the Selling Shareholder and the Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain operative and in full force and
effect regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, the Company or any of its
officers, directors or any controlling persons, or the Selling
Shareholder, and shall survive delivery of and payment for the Shares
hereunder.
9. SUBSTITUTION OF UNDERWRITERS. (a) If any Underwriter
shall default in its obligation to purchase the Shares which it has
agreed to purchase hereunder, you may in your discretion arrange for you
or another party or other parties to purchase such Shares on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then the
Company and the Selling Shareholder shall be entitled to a further
period of thirty-six hours within which to procure another party or
parties reasonably satisfactory to you to purchase such Shares on such
terms. In the event that, within the respective prescribed periods, you
notify the Company and the Selling Shareholder that you have so arranged
for the purchase of such Shares, or the Company and the Selling
Shareholder notify you that they have so arranged for the purchase of
such Shares, you or the Company and the Selling Shareholder shall have
the right to postpone the Closing Date for a period of not more
41
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees to file promptly
any amendments to the Registration Statement or the Prospectus which in
your opinion may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any persons substituted under this
Section 9 with like effect as if such person had originally been a party
to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters made
by you and the Company and the Selling Shareholder as provided in
subsection (a) above, the aggregate number of Shares which remains
unpurchased does not exceed one eleventh of the total Shares to be sold
on the Closing Date, then the Company and the Selling Shareholder shall
have the right to require each non-defaulting Underwriter to purchase
the Shares which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the number of Shares which such Underwriter agreed
to purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters made
by you and the Company and the Selling Shareholder as provided in
subsection (a) above, the number of Shares which remains unpurchased
exceeds one-eleventh of the total Shares to be sold on the Closing Date,
or if the Company and the Selling Shareholder shall not exercise the
right described in subsection (b) above to require the non-defaulting
Underwriters to purchase Shares of the defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the Option
Closing Date, the obligations of the Underwriters to purchase and of the
Company and the Selling Shareholder to sell the Option Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company and the Selling Shareholder except for the
expenses to be borne by the Company and the Underwriters as provided in
Section 11 hereof and the indemnity and contribution agreements in
Section 7 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. EFFECTIVE DATE AND TERMINATION. (a) This Agreement shall
become effective at 1:00 p.m., St. Louis time, on the first business day
following the effective date of the Registration Statement, or at such
earlier time after the effective date of the Registration Statement as
you in your discretion shall first release the Shares for offering to
the public; provided, however, that the provisions of Sections 7 and 11
shall at all times be effective. For the purposes of this Section
10(a), the Shares shall be deemed to have been released to the public
upon release by you of the publication of a newspaper advertisement
42
relating to the Shares or upon release of telegrams, facsimile
transmissions or letters offering the Shares for sale to securities
dealers, whichever shall first occur.
(b) This Agreement may be terminated by you at any time
before it becomes effective in accordance with Section 10(a) by notice
to the Company and the Selling Shareholder; provided, however, that the
provisions of this Section 10 and of Sections 7 and Section 11 hereof
shall at all times be effective. In the event of any termination of this
Agreement pursuant to Section 9 or this Section 10(b) hereof, the
Company and the Selling Shareholder shall not then be under any
liability to any Underwriter except as provided in Section 7 or Section
11 hereof.
(c) This Agreement may be terminated by you at any time at or
prior to the Closing Date by notice to the Company and the Selling
Shareholder if any condition specified in Section 6 hereof shall not
have been satisfied on or prior to the Closing Date. Any such
termination shall be without liability of any party to any other party
except as provided in Sections 7 and 11 hereof.
(d) This Agreement also may be terminated by you, by notice
to the Company and the Selling Shareholder, as to any obligation of the
Underwriters to purchase the Option Shares, if any condition specified
in Section 6 hereof shall not have been satisfied at or prior to the
Option Closing Date or as provided in Section 9 of this Agreement.
If you terminate this Agreement as provided in Section 10(b),
10(c) or 10(d), you shall notify the Company and the Selling Shareholder
by telephone or telegram, confirmed by letter.
11. COSTS AND EXPENSES. The Company, whether or not the
transactions contemplated hereby are consummated or this Agreement is
prevented from becoming effective under Section 10 hereof or is
terminated, will bear and pay the costs and expenses incident to the
registration of the Shares and public offering thereof, including,
without limitation, (a) all expenses (including stock transfer taxes)
incurred in connection with the delivery to the several Underwriters of
the Shares, the filing fees of the SEC, the fees and expenses of the
Company's counsel and accountants and the fees and expenses of counsel
for the Company and the Selling Shareholder, (b) the preparation,
printing, filing, delivery and shipping of the Registration Statement,
each Preliminary Prospectus, the Prospectus and any amendments or
supplements thereto (except as otherwise expressly provided in Section
5(e) hereof) and the printing, delivery and shipping of this Agreement
and other underwriting documents, including the Agreement Among
Underwriters, the Selected Dealer Agreement, Underwriters'
Questionnaires and Powers of Attorney and Blue Sky Memoranda, and any
instruments or documents related to any of the foregoing, (c) the
furnishing of copies of such documents (except as otherwise expressly
provided in Section 5(e) hereof) to the Underwriters, (d) the
registration or qualification of the Shares for offering and sale under
the securities laws of the various states and
43
other jurisdictions, including the fees and disbursements of counsel to
the Underwriters (not to exceed $5,000) relating to such registration or
qualification and in connection with preparing any Blue Sky Memoranda or
related analysis, (e) the filing fees of the NASD (if any) and
disbursements of counsel to the Underwriters relating to any review of
the offering by the NASD, (f) all printing and engraving costs related
to preparation of the certificates for the Shares, including transfer
agent and registrar fees, (g) all fees and expenses relating to the
authorization of the Shares for trading on The Nasdaq National Market,
(h) all travel expenses, including air fare and accommodation expenses,
of representatives of the Company in connection with the offering of the
Shares, (i) all of the other costs and expenses incident to the
performance by the Company of the registration and offering of the
Shares; (j) the Selling Shareholder's pro rata share of the fees and
expenses of the Attorneys-in-Fact and the Custodian, and (k) all
expenses (including stock transfer taxes) incident to the sale and
delivery of the Shares to be sold by such Selling Shareholder to the
Underwriters hereunder, provided, that the Selling Shareholder, whether
or not the transactions contemplated hereby are consummated or this
Agreement is prevented from becoming effective under Section 10 hereof
or is terminated, will pay or cause to be paid all costs and expenses
incident to the performance of such Selling Shareholder's obligations
hereunder which are not otherwise specifically provided for in this
Section, and provided further, however, that the Underwriters will bear
and pay the fees and expenses of the Underwriter's counsel (other than
as specifically set forth above), the Underwriters; out-of-pocket
expenses, and any advertising costs and expenses incurred by the
Underwriters incident to the public offering of the Shares.
If this Agreement is terminated by you in accordance with the
provisions of Section 10(c) shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the fees and disbursements of
counsel to the Underwriters.
12. NOTICES. All notices or communications hereunder, except
as herein otherwise specifically provided, shall be in writing and if
sent to the Underwriters shall be mailed, delivered, sent by facsimile
transmission, or telegraphed and confirmed c/o X.X. Xxxxxxx & Sons, Inc.
at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Syndicate, facsimile number (000) 000-0000, with a copy to X.X. Xxxxxxx
& Sons, Inc., Attention: Xxxxx X. Xxxxx, Managing Director, facsimile
number (000) 000-0000, or if sent to the Company shall be mailed,
delivered, sent by facsimile transmission, or telegraphed and confirmed
to the Company at INTRAV, INC., 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxx XX, facsimile number (314)
727-2533, or if sent to the Selling Shareholder shall be mailed,
delivered, sent by facsimile transmission or telegraphed and confirmed
to such Selling Shareholder, 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxxxx, facsimile number (000) 000-0000.
Notice to any Underwriter pursuant to Section 7 shall be mailed,
delivered, sent by facsimile transmission, or telegraphed and confirmed
to such Underwriter's address as it appears in the Underwriters'
Questionnaire furnished in connection
44
with the offering of the Shares or as otherwise furnished to the Company
and the Selling Shareholder.
13. INFORMATION FURNISHED BY UNDERWRITERS. The statements
set forth in the statements in the first, third, ninth and tenth
paragraphs under the caption "Underwriting" in the Prospectus constitute
the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Section 4(a)(ii) and
Section 7 hereof.
14. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, the Selling
Shareholder and, to the extent provided in Sections 7 and 8, the
officers and directors of the Company and each person who controls the
Company, any Selling Shareholder or any Underwriter and their respective
heirs, executors, administrators, successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be
construed to give any person, other than the parties hereto and, to the
extent provided in Sections 7, the executive officers and directors of
the Company, corporation or other entity any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit
of the parties hereto and their respective successors and assigns and
said controlling persons and said officers and directors, and for the
benefit of no other person, corporation or other entity. No purchaser
of any of the Shares from any Underwriter shall be construed a successor
or assign by reason merely of such purchase.
In all dealings hereunder, you shall act on behalf of each of the
several Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of
the Underwriters, made or given by you jointly or by X.X. Xxxxxxx &
Sons, Inc. on behalf of you as the representatives, as if the same shall
have been made or given in writing by the Underwriters; and in all
dealings with the Selling Shareholder hereunder, you and the Company
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of such Selling Shareholder made or given by any or
all of the Attorneys-in-Fact for such Selling Shareholder.
15. COUNTERPARTS. This Agreement may be executed by any one
or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
16. PRONOUNS. Whenever a pronoun of any gender or number is
used herein, it shall, where appropriate, be deemed to include any other
gender and number.
17. TIME OF ESSENCE. Time shall be of the essence of this
Agreement.
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18. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Missouri, without
giving effect to the choice of law or conflict of laws principles
thereof.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing is in accordance with your understanding, please
so indicate in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement among the Company, the
Selling Shareholder and the Underwriters.
INTRAV, INC.
By: ____________________________
Title: ________________________
The Revocable Trust of Xxxxxx X. Xxxxxxxx
By: ____________________________
Xxxxxx X. Xxxxxxxx
Accepted in St. Louis,
Missouri as of the date
first above written, on
behalf of ourselves and each
of the several Underwriters
named in Schedule I hereto.
X.X. XXXXXXX & SONS, INC.
EVEREN SECURITIES, INC.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
As Representatives of the Several
Underwriters named on Schedule I hereto
By: X.X. XXXXXXX & SONS, INC.
By: ________________________
Title: ______________________
47
SCHEDULE I
Name Number of Shares
---- ----------------
X.X. Xxxxxxx & Sons, Inc.
EVEREN Securities, Inc.
Xxxxxx, Xxxxxxxx & Company, Incorporated
----------------------------------
Total 2,500,000
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SCHEDULE II
Subsidiaries
The Company owns 100% of the outstanding capital stock of the
following entities:
Clipper Cruise Line, Inc.
Republic Cruise Line, Inc.
Liberty Cruise Line, Inc.
Clipper Adventurer Ltd.
Clipper Odyssey, Ltd.
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SCHEDULE III
Pursuant to Section 6(g) of the Underwriting Agreement, Deloitte &
Touche shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
1933 Act and the applicable Rules and Regulations thereunder.
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, prospective financial statements and/or pro forma financial
information examined) by them and included or incorporated by reference
in the Prospectus or the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the applicable Rules and Regulations with respect to
registration statements on Form S-2; and, if applicable, they have made
a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited consolidated
interim financial statements, selected financial data, pro forma
financial information, prospective financial statements and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the
Representatives of the Underwriters (the "Representatives").
(iii) On the basis of limited procedures, not constituting
an audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, performing the procedures specified by
the AICPA for a review of interim financial information as discussed in
SAS No. 71, Interim Financial Information, on the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries since
the date of the latest audited financial statements included in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited statements of consolidated income, statements of
consolidated financial position and statements of
consolidated cash flows included or incorporated by
reference in the Prospectus for them to be in conformity
with generally accepted accounting principles, or the
unaudited statements of consolidated income, statements of
consolidated financial position and statements of
consolidated cash flows included
50
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the related published Rules and Regulations
thereunder.
(B) any other unaudited income statement data and
balance sheet items included or incorporated by reference in
the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in
the audited consolidated financial statements included or
incorporated by reference in the Prospectus.
(C) the unaudited financial statements which were
not included or incorporated by reference in the Prospectus
but from which were derived any unaudited condensed
financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items
included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited consolidated financial statements
included or incorporated by reference in the Prospectus.
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those
statements.
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock or any increase in
the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated working
capital, net current assets or net assets, or any changes in
any other items specified by the Representatives, in each
case as compared with amounts shown in the latest balance
sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter.
(F) for the period from the date of the latest
financial statements included or incorporated by reference
in the Prospectus to the specified date referred to in
Clause (E) there were any decreases in consolidated net
revenues or
51
operating profit or the total or per share amounts of
consolidated net income or any changes in any other items
specified by the Representatives, in each case as compared
with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for changes, decreases
or increases which the Prospectus discloses have occurred or
may occur or which are described in such letter.
(iv) In addition to the audit referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraph (iii) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries for the periods covered by their
reports and any interim or other periods since the latest period covered
by their reports, which appear or are incorporated by reference in the
Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
52