Draft of April 8, 1998
1,000,000 SHARES
ARAMEX INTERNATIONAL LIMITED
COMMON STOCK
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UNDERWRITING AGREEMENT
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XXXXX & XXXXXXXXXXXX, INC.
As Representative of the Several Underwriters
Named in Schedule I hereto
c/o Scott & Xxxxxxxxxxxx, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
_________ __, 1998
Ladies and Gentlemen:
Aramex International Limited, a Bermuda company (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and
sell to the underwriters named in Schedule I hereto (the "Underwriters"),
for whom Xxxxx & Xxxxxxxxxxxx, Inc. is acting as representative (the
"Representative"), an aggregate of 500,000 shares of common stock,
U.S.$0.01 par value per share, of the Company (the "Common Stock") and,
at the election of the Underwriters, up to an aggregate of 150,000
additional shares and the selling shareholders named in Schedule II
hereto (the "Selling Shareholders") propose, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters an
aggregate of 500,000 shares of Common Stock and, at the election of the
Underwriters, up to an aggregate of _____ additional shares. The
aggregate of 1,000,000 shares to be sold by the Company and the Selling
Shareholders are herein called the "Firm Securities," and the aggregate
of 150,000 additional shares to be sold by the Company and the Selling
Shareholders are herein called the "Optional Securities." The Firm
Securities and the Optional Securities that the Underwriters elect to
purchase pursuant to Section 2 hereof are collectively called the
"Securities."
Prior to the date hereof, the Company consummated the Reorganization
(as defined in the Prospectus hereinafter defined) pursuant to which the
Company became the parent company of
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Aramex International, Limited, a Hong Kong company (the "Predecessor").
Unless the context otherwise requires, references herein to the "Company"
shall include the Predecessor.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, the
Underwriters that:
(i) A registration statement in respect of the
Securities on Form F-1 (File No. 333-____) under the Securities
Act of 1933, as amended (the "Act"), and as a part thereof a
preliminary prospectus, in respect of the Securities has been
filed with the Securities and Exchange Commission (the
"Commission") in the form heretofore delivered to you, and,
excluding exhibits thereto, for each of the other Underwriters;
such registration statement, as amended, has been declared
effective by the Commission; no other document with respect to
such registration statement has heretofore been filed with the
Commission other than in accordance with Section 5(a) of this
Agreement; and no stop order suspending the effectiveness of
such registration statement has been issued and no proceeding
for that purpose has been instituted or threatened by the
Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to
Rule 424 of the rules and regulations of the Commission under
the Act being hereinafter called a "Preliminary Prospectus", the
various parts of such registration statement, including all
exhibits thereto, and including the information contained in the
form of final prospectus filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) of
this Agreement and deemed by virtue of Rule 430A under the Act
to be part of the registration statement at the time it was
declared effective, and including any related registration
statement filed with the Commission pursuant to Rule 462(b)
under the Act, each as amended at the time such part became
effective, being herein called collectively the "Registration
Statement," and the final prospectus, in the form first filed
pursuant to Rule 424(b), being hereinafter called the
"Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission or any
state regulatory authority, and each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects
to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain any untrue
statement of a material fact or omit 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; provided, however, that
this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters expressly for use therein;
(iii) The Registration Statement conforms, and the
Prospectus and any amendments or supplements thereto will
conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and
do not and will not as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any
2
amendment or supplement thereto contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters expressly for use
therein;
(iv) Neither the Company nor any of its direct or
indirect subsidiaries, including, without limitation, all
entities included in the consolidated financial statements
included in the Prospectus, a complete and correct list of which
is attached hereto as Schedule III (the "Subsidiaries"), has
sustained since the date of the latest audited financial
statements included 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 or contemplated in the Prospectus;
and, since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not
been any change in the outstanding capital stock or long-term
debt of the Company or any of the 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 the Subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the
Prospectus;
(v) There is no document or contract of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required; each
contract or other instrument (however characterized or
described) to which the Company or a Subsidiary is a party or by
which its property or business is or may be bound or affected
and to which reference is made in the Registration Statement or
the Prospectus, including, without limitation, the sponsorship
agreements, joint venture agreements and agency agreements
referred to therein and any employment, consulting,
confidentiality and non-competition agreements between the
Company and its officers referred to therein, has been duly and
validly executed, is a valid and binding agreement of the
Company or a Subsidiary in full force and effect in all material
respects and is enforceable against the Company or such
Subsidiary, and to the knowledge of the Company, the other
parties thereto, in accordance with its terms, and neither the
Company or a Subsidiary nor, to the best of the Company's
knowledge, any other party is in default thereunder, and, to the
best of the Company's knowledge, no event has occurred which,
with the lapse of time or the giving of notice, or both, would
constitute a default thereunder, which default in the case of
any party other than the Company or a Subsidiary would have a
material adverse effect on the general affairs, management,
financial position, shareholders' equity or results of
operations of the Company and the Subsidiaries taken as a whole;
none of the material provisions of such contracts or instrument
violates any existing applicable law, rule, regulation,
judgment, order or degree of any governmental agency or court
having jurisdiction over the Company or a Subsidiary or any of
their assets or business;
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(vi) The Company and each of its Subsidiaries have good
and marketable title in fee simple to all real property and good
and marketable title to all material items of personal property
owned by them, free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company and the Subsidiaries; and any real
property and buildings held under lease by the Company or any of
the Subsidiaries are held by it under valid, subsisting and
enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of
such property and buildings by the Company or such Subsidiaries;
(vii) The Company and each of its Subsidiaries have
been duly organized and are validly existing organizations in
good standing under the laws of their respective jurisdictions
of organization, with power and authority (corporate and other)
to own or lease their respective properties and conduct their
respective businesses as described in the Prospectus, and each
has been duly qualified for the transaction of business and is
in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so
as to require such qualification, except where the failure to so
qualify would not result in a material adverse effect on the
Company or the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and
the Subsidiaries taken as a whole;
(viii) The Reorganization pursuant to which the Company
became the parent company of the Predecessor has been consummated
as described in the Prospectus, and all consents, approvals,
authorizations, orders, registrations and qualifications of any
court or governmental agency or body necessary for the consummation
of the organization of the Company, and the transfer of the
Predecessor's shares to the Company have been obtained or effected
and are in full force and effect;
(ix) The Company has an authorized capitalization as
set forth in the Prospectus; all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable and conform to the
description of the capital stock of the Company contained in the
Prospectus; there are no preemptive or other similar rights to
subscribe for or to purchase any securities of the Company or
any securities convertible into or exchangeable for securities
of the Company; except as described in the Prospectus, there are
no warrants, options or other similar rights to purchase any
securities of the Company or any securities convertible into or
exchangeable for securities of the Company; none of the holders
of the securities will be subject to personal liability solely
by reason of being such a holder; neither the filing of the
Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives rise to any
rights for or relating to the registration of any securities of
the Company with respect to such filing, offering or sale, other
than rights which have been waived or satisfied;
(x) Exhibit A accurately describes the Company's shares
of capital stock of, or other ownership interest in, each of the
Subsidiaries, and all of the issued and outstanding
4
shares of capital stock or other ownership interests of the
Subsidiaries have been duly and validly authorized and issued
and are fully paid and non-assessable, and to the extent
described on Exhibit A, are owned by the Company free and clear
of any perfected security interest and any other security
interests, claims, liens or encumbrances; and except as
described on Exhibit A, there are no warrants, options or other
similar rights to purchase any securities of any Subsidiary or
any securities convertible into or exchangeable for securities
of any Subsidiary;
(xi) The Securities have been duly and validly
authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued
and fully paid and nonassessable and will conform to the
description of the Securities contained in the Prospectus as
amended or supplemented;
(xii) The issue and sale of the Securities by the
Company and the performance of this Agreement and the
consummation by the Company of the other transactions herein
contemplated will not conflict with or result in a breach or
violation of any terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of the property or
assets of the Company or any of the Subsidiaries is bound or to
which any of the property or assets of the Company or any of the
Subsidiaries is subject, nor will such action result in any
violation of (A) the provisions of the Memorandum of Association
or Bye-laws of the Company (each as amended to date the
"Charter" and "Bye-laws", respectively) or the constituent
documents of any of the Subsidiaries or (B) any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties or activities; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Securities or
the consummation by the Company of the transactions contemplated
by this Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Act and under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Underwriter and the clearance of such offering
with the National Association of Securities Dealers, Inc.
("NASD");
(xiii) There are no legal or governmental proceedings
pending to which the Company or any of its Subsidiaries is a
party or of which any property of the Company or any of its
Subsidiaries is the subject other than as set forth or
contemplated in the Prospectus, which, if determined adversely
to the Company or any of its Subsidiaries, would individually or
in the aggregate have a material adverse effect on the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company or of the Company and the
Subsidiaries taken as a whole and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or by others;
(xiv) Xxxxxx Xxxxxxxx, LLP, Khlief & Co., Mehta & Tengra
[KPMG Peat Marwick LLP], Xxxxxx Xxxxxx & Company LLP, and Xx.
Xxxxxxx Xx-Xxxx & Co., who
5
have certified certain financial statements of the Company and
the Subsidiaries, are each independent public accountants as
required by the Act and the rules and regulations of the
Commission thereunder;
(xv) All employee benefit plans (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) established, maintained or contributed to by
the Company or any of the Subsidiaries comply in all material
respects with the requirements of ERISA and no employee pension
benefit plan (as defined in Section 3(2) of ERISA) has incurred
or assumed an "accumulated funding deficiency" within the
meaning of Section 302 of ERISA or has incurred or assumed any
material liability (other than for the payment of premiums) to
the Pension Benefit Guaranty Corporation;
(xvi) The consolidated financial statements of the
Company and the Subsidiaries, together with related notes, as
set forth in the Registration Statement comply with the
requirements applicable to a registration statement on Form F-1
and present fairly the consolidated financial position and the
results of operations of the Company and the Subsidiaries at the
indicated dates and for the indicated periods; such financial
statements have been prepared in accordance with international
accounting standards (which for purposes of such financial
statements are substantially consistent with United States
generally accepted accounting principles), consistently applied
throughout the periods presented except as noted in the notes
thereon, and all adjustments necessary for a fair presentation
of results for such periods have been made; and the selected
financial information included in the Prospectus presents fairly
the information shown therein and has been compiled on a basis
consistent with the financial statements presented therein;
(xvii) The Company and each of the Subsidiaries have
filed with the appropriate governmental authorities all federal,
state and foreign tax returns which have been required to be
filed (or has received an extension with respect thereto), and
has paid, or made adequate reserves for, all taxes indicated by
said returns and all assessments received by them to the extent
that such taxes have become due and are not being contested in
good faith and neither the Company nor any Subsidiary has
executed or filed with any taxing authority, any agreement
extending the period for assessment or collection of any income
taxes and is not a party to any pending action or proceeding by
any foreign or domestic governmental agency for assessment or
collection of taxes; and no claims for assessment or collection
of taxes have been asserted against the Company or any
Subsidiary;
(xviii) Neither the Company nor any of the Subsidiaries
is in violation of any international, federal or state law,
regulation, or treaty relating to the storage, handling,
transportation, treatment or disposal of hazardous substances
(as defined in 42 U.S.C. Section 9601) or hazardous materials
(as defined by any international, federal or state law or
regulation) or other waste products, which violation is
reasonably likely to result in a material adverse effect on the
general affairs, management, financial position, shareholders'
equity, results of operations, business operations or properties
of the Company and the Subsidiaries taken as a whole, and the
Company and each of the
6
Subsidiaries have received all material permits, licenses or
other approvals as may be required of them under applicable
international, federal and state environmental laws and
regulations to conduct their business as described in the
Prospectus; and the Company and each of the Subsidiaries are in
compliance in all material respects with the terms and
conditions of any such permit, license or approval; neither the
Company nor any of the Subsidiaries has received any notices or
claims that it is a responsible party or a potentially
responsible party in connection with any claim or notice
asserted pursuant to 42 U.S.C. Section 9601 et seq. or any
state superfund law; and the disposal by the Company or any
Subsidiary of any of the Company's and each Subsidiary's
hazardous substances, hazardous materials and other waste
products has been lawful;
(xix) To the knowledge of the Company, no officer or
director of the Company or a Subsidiary has any affiliation or
association with the NASD;
(xx) No relationship, direct or indirect, exists between
or among the Company or any of the Subsidiaries, on the one hand, and
the directors, officers, shareholders, customers or suppliers of the
Company or any of the Subsidiaries on the other hand, that is required
by the Act, or by the rules and regulations thereunder to be described
in the Registration Statement and the Prospectus that is not so
described;
(xxi) Neither the Company nor any of the Subsidiaries has
taken and none of such entities will take, directly or indirectly,
any action that is designed to or that has constituted or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities;
(xxii) Each of the Company and the Subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate
licenses, copyrights, trademarks, service marks and trade names
(collectively, "intellectual property") necessary to carry on
its business as presently operated by it, except where the
failure to own or possess or have the ability to acquire any
such intellectual property would not, individually or in the
aggregate, have a material adverse effect on the Company and the
Subsidiaries taken as a whole, and neither the Company nor any
of the Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of
others with respect to any intellectual property or of any facts
which would render any intellectual property invalid or
inadequate to protect the interest of the Company or any of the
Subsidiaries therein and which infringement or conflict could
have a material adverse effect on general affairs, management,
financial condition, shareholders' equity or results of
operations the Company and the Subsidiaries taken as a whole;
(xxiii) The Company and the Subsidiaries maintain insurance
of the types and in the amounts that are reasonable or required
for the business operated by them, all of which insurance is in
full force and effect;
(xxiv) The Company and each of the Subsidiaries holds
and are operating in compliance, in all material respects, with
all franchises, grants, authorizations, licenses,
7
permits, easements, consents, certificates and orders of any
governmental or self-regulatory body required for the conduct
of their respective businesses as presently being conducted
("licenses") and all licenses are valid and in full force and
effect, and the Company, and each of the Subsidiaries are in
compliance, in all material respects, with all laws,
regulations, orders and decrees applicable to them;
(xxv) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms;
(xxvi) The Securities are approved for listing on the Nasdaq
National Market;
(xxvii) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with
management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with international accounting
standards (which for purposes of such financial statements are
substantially consistent with United States generally accepted
accounting principles) and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(xxviii) Neither the Company nor any of the Subsidiaries are
involved in any material labor dispute nor, to the knowledge of the
Company, is any such dispute threatened;
(xxix) Neither the Company nor any Subsidiary has,
directly or indirectly at any time (i) made any contributions to
any candidate for political office in violation of law or (ii)
made any payment to any state, federal or foreign governmental
officer or official, or other person charged with similar public
or quasi-public duties, other than payments or contributions
required or allowed by applicable law; the Company's internal
accounting controls and procedures are sufficient to cause the
Company and each Subsidiary to comply in all material respects
with the Foreign Corrupt Practices Act of 1977, as amended;
(xxx) Each of the Company and the Subsidiaries has valid
and sufficient grants, franchises, miscellaneous permits and
easements free from unduly burdensome restrictions, adequate
for the conduct of its business in the territories in which it
is now conducting such business and the ownership of the
properties now owned by it; and
(xxxi) The Company is a foreign private issuer as defined in
Rule 405 of the Act and is eligible to register the Securities
on a registration statement on Form F-1.
(b) Each of the Selling Shareholders severally represents and
warrants to, and agrees with, the Underwriters and the Company,
solely with respect to such Selling Shareholder, that:
8
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling
Shareholder of this Agreement, the Power of Attorney (the "Power
of Attorney") and the Custody Agreement (the "Custody
Agreement") hereinafter referred to and for the sale and
delivery of the Securities to be sold by such Selling
Shareholder hereunder, have been obtained, except such as may be
required under the Act or state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities
by the Underwriters; and such Selling Shareholder has full
right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Securities to be sold by
such Selling Shareholder hereunder;
(ii) A Power of Attorney and Custody Agreement have been
duly executed and delivered by such Selling Shareholder and
constitute the valid and binding obligation of such Selling
Shareholder enforceable against such Selling Shareholder in
accordance with its terms;
(iii) The sale of the Securities to be sold by such
Selling Shareholder hereunder and the performance of this
Agreement, the Power of Attorney and the Custody Agreement and
the consummation by such Selling Shareholder of the transactions
herein and therein contemplated will not conflict with or result
in a breach or violation of any terms or provisions of, or
constitute a default under, any statute, any indenture,
mortgage, deed of trust, loan agreement, guarantee or other
agreement or instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder is subject, or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Shareholder or the
property of such Selling Shareholders;
(iv) Certificates in negotiable form representing all
of the Securities to be sold by such Selling Shareholder
hereunder have been placed in custody under the Custody
Agreement duly executed and delivered by such Selling
Shareholder to the custodian under such agreement (the
"Custodian"); such Selling Shareholder has good and valid title
to the Securities it has placed in custody, free and clear of
all liens, encumbrances, equities or claims, and immediately
prior to the Delivery Date (as hereinafter defined) such Selling
Shareholder will have good and valid title to the Securities to
be sold by such Selling Shareholder hereunder, free and clear of
all liens, encumbrances, equities or claims and, upon delivery
of such Securities and payment therefor pursuant hereto, good
and valid title to all of such Securities, free and clear of all
liens, encumbrances, equities or claims, will pass to the
Underwriters;
(v) No offering, sale or other disposition of any
Securities (or any securities convertible into or exercisable
for such Securities) will be made within 180 days after the
date of the Prospectus, directly or indirectly, by such Selling
Shareholder, otherwise than hereunder or with your written
consent;
(vi) Such Selling Shareholder has not taken and will
not take, directly or indirectly, any action that is designed
to or that has constituted or that might reasonably
9
be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the
sale or resale of the Securities;
(vii) Such Selling Shareholder is familiar with the
Registration Statement and the Prospectus and verifies that the
information set forth therein respecting him or it is true and
complete;
(viii) Such Selling Shareholder has appointed
____________, _______ and _______, and any of them acting alone
as such Selling Shareholder's attorney-in-fact (the
"Attorney-in-Fact") with 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 such
Selling Shareholder as provided in Section 2 hereof, to
authorize the delivery of the Securities to be sold by such
Selling Shareholder hereunder and otherwise to act on behalf of
such Selling Shareholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement;
(ix) Such Selling Stockholder specifically agrees that
the Securities represented by the certificates held in custody
for such Selling Stockholder under the Custody Agreement are
subject to the interests of the Underwriters hereunder and that
the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the
Attorney-in-Fact by the Power of Attorney, are to that extent
irrevocable; such Selling Stockholder agrees that its
obligations hereunder shall not be terminated by operation of
law, whether by death or incapacity, or by the occurrence of any
other event; if such Selling Stockholder should die or become
incapacitated, or if any other such event should occur, before
the delivery of any of the Securities hereunder, certificates
representing the Securities to be sold by such Selling
Stockholder hereunder shall be delivered by or on behalf of the
Selling Stockholder in accordance with the terms and conditions
of this Agreement and of the Custody Agreement, and actions
taken by the Attorney-in-Fact pursuant to the Power of Attorney
shall be as valid as if such death, incapacity or other event
had not occurred, regardless of whether or not the Custodian,
the Attorney-in-Fact or any of them shall have received notice
of such death, incapacity or other event;
(x) The Registration Statement and the Prospectus do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters through you expressly
for use therein;
(xi) Such Selling Shareholder hereby repeats and
confirms as if set forth in full herein each of the
representations, warranties and agreements made by such Selling
Shareholder in the Custody Agreement and Power of Attorney and
agrees that such
10
representations, warranties and agreements are made hereby for
the benefit of, and may be relied upon by, (i) you, the
Underwriters and Hunton & Xxxxxxxx, counsel to the
Underwriters, and (ii) the Company and Xxxxxx, Xxxxxxxxxx &
Sutcliffe LLP, counsel to the Company and the Selling
Shareholders; and
(xii) Such Selling Shareholder does not believe that any of
the representations and warranties of the Company contained in
Section 1(a) hereof are not true and correct in all material
respects.
2. Purchase and Sale.
Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Shareholders, severally and not jointly,
agree to sell to the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company and each of
Selling Shareholders, at a purchase price per share of $ , the number of
Firm Securities to be purchased by such Underwriter as set forth opposite
the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to
purchase Optional Securities as provided below, the Company and each of
the Selling Shareholders selling Optional Securities agree, as set forth
in Schedule II hereto, to sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company and each of the Selling Shareholders selling Optional Securities,
at the purchase price set forth in clause (a) of this Section 2, that
portion of the number of Optional Securities as to which such election
shall have been exercised (to be adjusted by you so as to eliminate
fractional securities) determined by multiplying such number of Optional
Securities by a fraction, the numerator of which is the maximum number of
Optional Securities that such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule II hereto, and
the denominator of which is the maximum number of the Optional Securities
that all of the Underwriters are entitled to purchase.
The Company and the Selling Shareholders, as and to the extent
indicated in Schedule II hereto, hereby grant, severally and not jointly,
to the Underwriters the right to purchase at their election up to 150,000
Optional Securities, as more particularly set forth in Schedule II
hereto, at the purchase price per share set forth in the paragraph above,
for the sole purpose of covering over-allotments in the sale of the Firm
Securities. Any such election to purchase Optional Securities shall be
made in proportion to the maximum number of Optional Securities to be
sold by the Company and the Selling Shareholders as set forth in Schedule
II hereto. Any such election to purchase Optional Securities may be
exercised no more than once by oral notice from you to the Company and
the Selling Shareholders selling Optional Securities, which must be
confirmed by a letter, facsimile, telex or telegraph given within a
period of 30 days after the date of this Agreement, setting forth the
aggregate amount of Optional Securities to be purchased and the date on
which such Optional Securities are to be delivered, as determined by you
but in no event earlier than the First Delivery Date (as defined in
Section 4 hereof) or, unless you otherwise agree in writing, earlier than
two or later than 10 business days after the date of such notice.
11
3. Offering by the Underwriter.
Upon the authorization by you of the release of the Firm
Securities, the several Underwriters propose to offer the Firm Securities
for sale upon the terms and conditions set forth in the Prospectus.
4. Delivery and Payment.
Certificates in definitive form for the Securities to be
purchased by each Underwriter hereunder, and in such denominations and
registered in such names as Xxxxx & Xxxxxxxxxxxx, Inc. may request upon
at least two business days' prior notice to the Company or any Selling
Shareholder, as applicable, shall be delivered by or on behalf of the
Company or any Selling Shareholder, as applicable, to Xxxxx &
Xxxxxxxxxxxx, Inc., for the account of each Underwriter, against payment
by such Underwriter or on its behalf of the purchase price therefor.
Payment of the purchase price for the Securities shall be made by
certified or official bank check in next day funds or, at the option of
Xxxxx & Xxxxxxxxxxxx, Inc., by wire transfer of immediately available
funds all at the offices of Xxxxx & Xxxxxxxxxxxx, Inc., 000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx. The time and date of such delivery and
payment shall be, with respect to the Firm Securities, 10:00 a.m.,
Richmond, Virginia time, on _______________, 1998 or at such other time
and date as you and the Company may agree upon in writing, and, with
respect to the Optional Securities, 10:00 a.m., Richmond, Virginia time,
on the date specified by you in the written notice given by you
(consistent with Section 2 hereof) of the Underwriters' election to
purchase such Optional Securities, or at such other time and date as you
and the Company may agree upon in writing. Such time and date for
delivery of the Firm Securities is herein called the "First Delivery
Date," such time and date for delivery of the Optional Securities, if not
the First Delivery Date, is herein called the "Second Delivery Date," and
each such time and date for delivery is herein called a "Delivery Date."
Such certificates will be made available for checking and packaging at
least twenty-four hours prior to each Delivery Date at the offices of
Xxxxx & Xxxxxxxxxxxx, Inc. at the address set forth above or such other
location designated by the Underwriters to the Company and any Selling
Shareholder.
5. Agreements of the Company.
The Company agrees with the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by
you and to file such Prospectus (or a term sheet as permitted by Rule
434(c)) pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
amendment or supplement to the Registration Statement or Prospectus prior
to any Delivery Date which shall be reasonably disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission subsequent to
12
the date of the Prospectus and for so long as the delivery of a
Prospectus is required in connection with the offering or sale of the
Securities; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, of any request by the Commission for
the amending or supplementing of the Registration Statement or Prospectus
or for additional information and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such actions as you may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriter with copies of the Registration
Statement and the Prospectus in such quantities as you may from time to
time reasonably request during such period following the date hereof that
a prospectus is required to be delivered in connection with offers or
sales of Securities, and, if the delivery of a prospectus is required
during this period and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the
Prospectus to comply with the Act, to notify you and upon your request to
file such document and to prepare and furnish without charge to you and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) As soon as practicable after the effective date of the
Registration Statement (and in no event later than 45 days after the end
of the fiscal quarter in which the first anniversary date of the
effective date of the Registration Statement occurs), to make generally
available to its shareholders and to deliver to you, an earnings
statement of the Company, conforming with the requirements of Section
11(a) of the Act and Rule 158 under the Act, covering a period of at
least 12 months beginning after the effective date of the Registration
Statement;
(e) For a period of 180 days from the date of the Prospectus,
not to directly or indirectly offer, sell, offer to sell, contract to
sell, pledge, grant any option to purchase or otherwise sell or dispose
of any securities of the Company (other than the Securities or pursuant
to employee stock option plans or pursuant to options, warrants or rights
outstanding on the date of this Agreement), without your prior written
consent;
13
(f) To comply with the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations thereunder as if the
Company were an issuer subject to the requirements of Rule 13a-1 and Form
10-K, Rule 13a-11(a) and Form 8-K, and Rule 13a-13 and Form 10-Q under
the Exchange Act;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and
deliver to you (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to
time reasonably request;
(h) To apply the net proceeds from the sale of the Securities
for the purposes set forth in the Prospectus; and
(i) To continue to retain Xxxxxx Xxxxxxxx LLP (or such other
nationally recognized "Big Six" accounting firm acceptable to the
Underwriters) as the Company's independent public accountants for the
preparation of the consolidated financial statements of the Company.
6. Payment of Expenses.
The Company covenants and agrees with the Underwriter that the
Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of
reproducing this Agreement, the Blue Sky Survey and any other documents
in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky Survey; (iv) the filing fees incident to
securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (v) the cost of
preparing stock certificates; (vi) the costs or expenses of any transfer
agent or registrar; and (vii) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however,
that except as provided in Section 8 and Section 10 hereof, the
Underwriters will pay all their own costs and expenses, including the
fees of its counsel, stock transfer taxes on resale of any of the
Securities by them and any advertising expenses connected with any offers
they may make.
7. Conditions to Obligations of Underwriters.
The obligations of the Underwriters hereunder, as to the
Securities to be delivered at each Delivery Date, shall be subject, in
their discretion, to the condition that all representations and
14
warranties and other statements of the Company and each of the Selling
Shareholders herein are, at and as of such Delivery Date, true and
correct, the condition that the Company and each of the Selling
Shareholders shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 5(a) of this Agreement; no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with
to your reasonable satisfaction;
(b) Hunton & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Delivery Date, in
connection with matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, LLP, counsel for the
Company, shall have furnished to you their written opinion, dated such
Delivery Date, in form reasonably satisfactory to you, to the effect set
forth in Exhibit B attached hereto (such opinion may rely on opinions of
local counsel satisfactory to the Underwriters, provided, that copies of
such opinions are provided to the Underwriters, and further provided,
that Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, LLP states in its opinion that it
has no reason to believe that it is not justified in relying upon such
opinions);
(d) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, LLP, counsel for the Selling
Shareholders, shall have furnished to you its written opinion, dated such
Delivery Date, in the form and substance satisfactory to you, to the
effect set forth in Exhibit C attached hereto (such opinion may rely on
opinions of local counsel satisfactory to the Underwriters, provided,
that copies of such opinions are provided to the Underwriters, and
further provided, that Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, LLP states in its
opinion that it has no reason to believe that it is not justified in
relying upon such opinions);
(e) At 10:00 a.m., Richmond, Virginia, time, on the date of this
Agreement and the effective date of the most recently filed
post-effective amendment to the Registration Statement and also at each
Delivery Date, each of Xxxxxx Xxxxxxxx, LLP and Khlief & Co. shall have
furnished to you a letter or letters, dated the respective date of
delivery thereof, in form and substance reasonably satisfactory to you,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information relating to the
Company and its Subsidiaries contained in the Registration Statement and
the Prospectus;
(f) (i) Neither the Company nor any of the Subsidiaries shall
have sustained, since the date of the latest audited financial statements
included in the Prospectus, any loss or interference with its business
from fire, explosion, flood, war or other calamity, whether or not
covered by
15
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (ii) since the respective dates as of which information
is given in the Prospectus there shall not have been any change in the
outstanding capital stock or long-term debt of the Company or any of the
Subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company or
any of the Subsidiaries otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause
(i) or (ii) is in your reasonable judgment so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities being delivered at such Delivery Date
on the terms and in the manner contemplated by the Prospectus;
(g) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading
of any of the securities of the Company on the National Association of
Securities Dealers, Inc. Automated Quotation System; (ii) any United
States federal or state statute, regulation, rule or order of any court,
legislative body, agency or other governmental authority shall have been
enacted, published, decreed or promulgated or any proceeding or
investigation shall have been commenced which, in your reasonable
judgment, materially and adversely affects the business or operations of
the Company; (iii) a suspension or material limitation in trading in
securities generally on any national securities exchange, the Nasdaq
National Market or by the NASD, the Commission, the National Association
of Securities Dealers, Inc. Automated Quotation System or by any other
federal or state agency; (iv) a general moratorium on commercial banking
activities in New York or Virginia declared by either federal or New York
or Virginia authorities; (v) the outbreak or escalation of hostilities
involving the United States, the United Nations or any nation in the
Middle East (as defined in the Prospectus) or the declaration by the
United States, the United Nations or any nation in the Middle East (as
defined in the Prospectus) of a national emergency or war, if any such
event specified in this clause (v) would have such a materially adverse
effect, in your reasonable judgment, as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered at such Delivery Date on the terms and in the
manner contemplated in the Prospectus; or (vii) such a material adverse
change in general economic, political, financial or international
conditions affecting financial markets in the United States having a
material adverse impact on trading prices of securities in general, as,
in your reasonable judgment, makes it inadvisable to proceed with the
payment for and delivery of the Securities;
(h) The Company shall have furnished to you copies of agreements
between the Company and the directors and executive officers, the Selling
Shareholders and certain stockholders of the Company, in form and content
reasonably satisfactory to you, pursuant to which such persons agree not
to directly or indirectly offer, sell, offer to sell, contract to sell,
pledge, grant any option to purchase or otherwise sell or dispose of, any
shares of Common Stock or any other capital stock of the Company
beneficially owned by them or any securities convertible into, or
exchangeable for, Common Stock or any other capital stock of the Company,
on or before the 180th day after the date of this Agreement without your
prior written consent;
(i) The Company and each of the Selling Shareholders shall have
furnished or caused to be furnished to you at such Delivery Date
certificates of officers of the Company and each of
16
the Selling Shareholders reasonably satisfactory to you as to the
accuracy of the respective representations and warranties of the Company
and each of the Selling Shareholders herein at and as of such Delivery
Date, as to the performance by the Company and each of the Selling
Shareholders of all of its respective obligations hereunder to be
performed at or prior to such Delivery Date, as to the matters set forth
in subsections (a) and (e) of this Section and as to such other matters
as you may reasonably request.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and will promptly reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating, preparing to defend or defending, or
appearing as a third-party witness in connection with, any such action or
claim; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary
prospectus, the Registration Statement or Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Underwriters through you
expressly for use therein; provided, further, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Securities, or
any person controlling such Underwriter, if a copy of the Prospectus (as
then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf
of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
(b) Subject to subsection (f) of this Section, each of the
Selling Shareholders severally and not jointly will indemnify and hold
harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which the Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will promptly reimburse
each Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating, preparing to defend or
defending, or appearing as a third-party
17
witness in connection with, any such action or claim; provided, however,
that none of the Selling Shareholders shall be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any preliminary prospectus, 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 by the Underwriters through you expressly for
use therein; provided, further, that the foregoing indemnity agreement
with respect to any preliminary prospectus shall not inure to the benefit
of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf
of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities.
(c) Each Underwriter will indemnify and hold harmless the
Company and any Selling Shareholder against any losses, claims, damages
or liabilities to which the Company or any Selling Shareholder may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any preliminary
prospectus, 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 by such Underwriter through you
expressly for use therein; and will reimburse the Company and any Selling
Shareholder for any legal or other expenses reasonably incurred by the
Company and the Selling Shareholder in connection with investigating,
preparing to defend or defending, or appearing as a third-party witness
in connection with, any such action or claim. The Company and each of the
Selling Shareholders acknowledge that the statements set forth in the
last paragraph of the cover page, the [last two paragraphs] on the inside
front cover page and the [third, fifth and sixth] paragraphs under the
heading "Underwriting" in the preliminary prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of
the several Underwriters for inclusion in the preliminary prospectus or
the Prospectus, and you, as the Representatives, confirm that such
statements are correct.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the
18
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have been advised by
counsel that representation of such indemnified party and the
indemnifying party may be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests
between them, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such
indemnified party or parties. It is understood that the indemnifying
party shall, in connection with any such action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys
together with appropriate local counsel at any time for all indemnified
parties unless such firm of attorneys shall have reasonably concluded
that one or more indemnified parties has actual differing interests with
other indemnified parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to appoint counsel to
defend such action and approval by the indemnified party of such counsel,
the indemnifying party will not be liable for any settlement entered into
without its written consent and will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or
(iii). Notwithstanding the immediately preceding sentence and the first
sentence of this paragraph, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and each of the Selling
Shareholders on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection
(d) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in
19
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and each of the
Selling Shareholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company and each of the Selling
Shareholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (after deducting the total underwriting discount, but before
deducting expenses) received by the Company and each of the Selling
Shareholders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or any
Selling Shareholder on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company, each of the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this
subsection (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 which does not take into account the equitable
considerations referred to above in this subsection (e). The amount paid
or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this subsection (e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount
of damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations under this subsection (e) are several in
proportion to their respective underwriting obligations and not joint.
(f) The liability of each of the Selling Shareholders under this
Section 8 shall be limited to an amount equal to the initial public
offering price less the underwriting discount of the Securities sold by
such Selling Shareholder to the Underwriters.
(g) The obligations of the Company and each of the Selling
Shareholders under this Section 8 shall be in addition to any liability
which the Company and such Selling Shareholder may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any,
who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall be in addition
to any liability which the Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director
of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
20
9. Default of Underwriters.
(a) If any Underwriter shall default in its obligation to
purchase the Securities that it has agreed to purchase hereunder at a
Delivery Date, you may in your discretion arrange for you or another
party or other parties to purchase such Securities on the terms contained
herein. If within 36 hours after such default by any Underwriter you do
not arrange for the purchase of such Securities, then the Company and the
Selling Shareholders shall be entitled to a further period of 36 hours
within which to procure another party or other parties satisfactory to
you to purchase such Securities on such terms. In the event that, within
the respective prescribed periods, you notify the Company and the Selling
Shareholders that you have so arranged for the purchase of such
Securities, or the Company and the Selling Shareholders notify you that
they have so arranged for the purchase of such Securities, you or the
Company and the Selling Shareholders shall have the right to postpone
such Delivery Date for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements,
and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion, exercised
in consultation with Hunton & Xxxxxxxx, may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Shareholders as provided in subsection (a)
above, the aggregate number of such Securities that remains unpurchased
does not exceed one-eleventh of the aggregate number of all the
Securities to be purchased at such Delivery Date, then the Company and
the Selling Shareholders shall have the right to require each
non-defaulting Underwriter to purchase the number of Securities that such
Underwriter agreed to purchase hereunder at such Delivery Date and, in
addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the number of Securities that such Underwriter
agreed to purchase hereunder at such Delivery Date) of the share 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 Securities of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Shareholders as provided in subsection (a)
above, the aggregate number of such Securities that remains unpurchased
exceeds one-eleventh of the aggregate number of all the Securities to be
purchased at such Delivery Date, or if the Company and the Selling
Shareholders shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then this Agreement (or, with
respect to the Second Delivery Date, the obligation of the Underwriters
to purchase and of the Company to sell the Optional Securities) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriters or the Company and the Selling Shareholders, except for the
expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section
8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
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10. Representations and Indemnities to Survive.
The respective indemnities, agreements, representations,
warranties and other statements of the Company, each of the Selling
Shareholders and the several Underwriters, as set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation (or
any statement as to the results thereof) made by or on behalf of the
Underwriters or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company
or each of the Selling Shareholders, and shall survive delivery of and
payment for the Securities.
11. Termination and Payment of Expenses.
If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor any of the Selling Shareholders shall
then be under any liability to any Underwriter except as provided in
Section 6 and Section 8 hereof; but if for any other reason any
Securities are not delivered by or on behalf of the Company or any of the
Selling Shareholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Securities
not so delivered, but neither the Company nor any of the Selling
Shareholders shall then be under further liability to any Underwriter
except as provided in Section 6 and Section 8 hereof.
12. Notices.
In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you.
All statements, requests, notices and agreements hereunder shall
be in writing or by telegram if promptly confirmed in writing, and if to
the Underwriter shall be sufficient in all respects if delivered or sent
by reliable courier, first-class mail, telex or facsimile transmission to
Xxxxx & Xxxxxxxxxxxx, Inc., 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Finance Department; if to the Company shall
be sufficient in all respects if delivered or sent by reliable courier,
first-class mail, telex, or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Xxxxxxx
Xxxxxxx, with a copy (which shall not constitute notice) to Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx, LLP; provided, however, that any notice to any
Underwriter pursuant to Section 9 hereof shall be delivered or sent by
reliable courier, first-class mail, telex or facsimile transmission to
such Underwriter at its address set forth in the Underwriters'
Questionnaire, which address will be supplied to the Company or the
Selling Shareholder by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
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13. Successors.
This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, each of the Selling Shareholders and the
Company and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Company and each person who controls the
Company or the Underwriters, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time of the Essence.
Time shall be of the essence in this Agreement.
15. Business Day.
As used herein, the term "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
16. Applicable Law.
This Agreement shall be construed in accordance with the laws of
the State of New York.
17. Captions.
The captions included in this Agreement are included solely for
convenience of reference and shall not be deemed to be a part of this
Agreement.
18. Counterparts.
This Agreement may be executed by any one or more of the parties
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.
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If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof
by you, this letter and such acceptance hereof shall constitute a binding
agreement between the Underwriters, the Company and the Selling
Shareholders. It is understood that your acceptance of this Agreement on
behalf of each of the Underwriters is pursuant to the authority set forth
in a form of Agreement Among Underwriters, the form of which will be
submitted to the Company and each of the Selling Shareholders for
examination, upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
ARAMEX INTERNATIONAL LIMITED
By: ________________________________________
Name:
Title:
SELLING SHAREHOLDERS
By: _________________________________________
As Attorney-in-fact acting on behalf
of each of the Selling Shareholders
named in Schedule II to this
Agreement
Accepted as of the date hereof
at Richmond, Virginia
XXXXX & XXXXXXXXXXXX, INC.
Representative of the Underwriters
By: XXXXX & XXXXXXXXXXXX, INC.
By: _____________________________
Name:
Title:
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