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EXHIBIT 1.1
STAFF LEASING, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
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UNDERWRITING AGREEMENT
April __, 1998
Xxxxxxx, Xxxxx & Co.,
Xxxxxx Brothers Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Certain shareholders named in Schedule II hereto (the "Selling
Shareholders") of Staff Leasing, Inc., a Florida corporation (the "Company"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") (a) an aggregate of
2,922,291 shares (the "Firm Shares") of Common Stock, par value $.01 per share
("Stock"), of the Company and (b) an aggregate of 177,709 warrants to purchase
shares of Stock (the "Firm Warrants") and, at the election of the Underwriters,
up to (a) 440,877 additional shares (the "Optional Shares") and (b) 24,123
additional warrants to purchase shares of Stock (the "Optional Warrants"). The
Firm Warrants and the Optional Warrants that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "Warrants", and
the Firm Shares, the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof and the shares of Stock to be issued upon
redemption of the Warrants by the Company as hereinafter provided are herein
collectively called the "Shares".
1.(a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-49067) (the
"Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or (to the best of the
Company's knowledge) threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, 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) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective or such
part of the Rule 462(b)
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Registration Statement, if any, became or hereafter becomes effective, each as
amended at the time such part of the Initial Registration Statement became
effective, are hereinafter collectively called the "Registration Statement"; and
such final prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus";
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, 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 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, 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 an
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein or
by a Selling Shareholder expressly for use in the preparation of the
answers therein to Items 7 and 11(m) of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus 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 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 an Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein or by a Selling
Shareholder expressly for use in the preparation of the answers therein
to Items 7 and 11(m) of Form S-1;
(iv) Neither the Company, Staff Acquisition, Inc. ("Staff
Acquisition") nor any of the partnerships or the corporations
identified in Schedule III hereto (collectively, 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 capital stock (except
changes occurring by reason of the repurchase of shares of Stock under
the Company's Restricted Equity Plan or the issuance of shares of Stock
pursuant to the exercise of stock options and warrants) or long-term
debt of the Company, Staff Acquisition 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' or partners' equity or
results of operations of the Company, Staff Acquisition or any of the
Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(v) The Company, Staff Acquisition and the Subsidiaries have good
and marketable title to all personal property owned by them, in each
case 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, Staff Acquisition
and the Subsidiaries; and all material real property and buildings
held under lease by the Company, Staff Acquisition or any of the
Subsidiaries are held by them 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, Staff Acquisition and the Subsidiaries;
neither the Company, Staff Acquisition nor any of the Subsidiaries owns
any real property.
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(vi) Each of the Company, Staff Acquisition and each Subsidiary
has been duly incorporated or organized, as the case may be, and is
validly existing as a corporation or limited partnership, as the case
may be, in good standing under the laws of its jurisdiction of
incorporation or organization, as the case may be, with all power and
authority necessary to own or hold its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign corporation or limited partnership, as the case may be, 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, or is
subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; other than the
Subsidiaries, the Company has no "subsidiary," as such term is defined
in Rule 405 under the Act;
(vii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus; at each Time of Delivery (as defined in
Section 4 below), the Company will have the authorized capitalization
as set forth in the Prospectus, and at each Time of Delivery all of the
issued shares of capital stock of the Company will have been duly and
validly authorized and issued and will be fully paid and
non-assessable, will be free of preemptive and other preferential
rights to subscribe for or purchase shares of Stock granted by the
Company or pursuant to an agreement to which the Company is a party and
will conform to the description of the Stock contained in the
Prospectus; all of the issued equity interests or all of the issued
shares of capital stock, as the case may be, of each Subsidiary and
all of the issued shares of capital stock of Staff Acquisition have
been duly and validly authorized and issued and are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims (except
for the security interest of the lenders under the Company's Credit
Agreement (as defined in the Prospectus) in the equity of the Company's
subsidiaries, as set forth in the Prospectus);
(viii) The unissued shares of Stock issuable upon the redemption of
the Warrants have been duly and validly authorized and reserved for
issuance, and at the Time of Delivery with respect to such shares, such
shares will be delivered in accordance with the provisions of this
Agreement and will be duly and validly issued, fully paid and
non-assessable, will be free of preemptive and other preferential
rights to subscribe for or purchase shares of Stock granted by the
Company or pursuant to an agreement to which the Company is a party and
will conform to the description of the Stock contained in the
Prospectus;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company and each Subsidiary; the compliance by the
Company with all of the provisions 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, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company, Staff Acquisition or any of the Subsidiaries is a party or
by which the Company, Staff Acquisition or any of the Subsidiaries is
bound or to which any of the property or assets of the Company, Staff
Acquisition or any of the Subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter,
by-laws or governing instruments of the Company, Staff Acquisition or
any of the Subsidiaries or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company, Staff Acquisition or any of the Subsidiaries or any of
their properties or assets; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares;
(x) Neither the Company, Staff Acquisition nor any of the
Subsidiaries (i) is in violation of its charter, by-laws or governing
instruments, (ii) is in default, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any obligation, agreement, term,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject or
has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to
the ownership of its property or to the conduct of its business;
(xi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, are accurate, complete and fair;
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(xii) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company, Staff
Acquisition or any of the Subsidiaries is a party or of which any
property or assets of the Company, Staff Acquisition or any of the
Subsidiaries is the subject which, if determined adversely to the
Company, Staff Acquisition or any of the Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' or
partners' equity, results of operations, business or prospects of the
Company, Staff Acquisition or the Subsidiaries; and to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(xiii) Neither the Company, Staff Acquisition nor any Subsidiary is
and, after giving effect to the offering and sale of the Shares, will
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 "Investment Company Act");
(xiv) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly, in all material respects,
the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved;
(xv) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and the Subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xvi) The Company, Staff Acquisition and each of the Subsidiaries
carry, or are covered by, insurance in such amounts and covering such
risks as is adequate for the conduct of their respective businesses and
the value of their respective properties;
(xvii) Each of the Company, Staff Acquisition and each of the
Subsidiaries owns or possesses adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations. copyrights and
licenses necessary for the conduct of its businesses and have no reason
to believe that the conduct of its businesses will conflict with, and
have not received any notice of any claim of conflict with, any such
rights of others;
(xviii) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the rules and regulations of
the Commission thereunder which have not been described in the
Prospectus or filed as exhibits to the Registration Statement;
(xix) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
shareholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus which is not so
described;
(xx) No labor disturbance by the employees of the Company or any
of the Subsidiaries exists or, to the knowledge of the Company, is
imminent which might be expected to have a material adverse effect on
the consolidated financial position, stockholders' or partners' equity,
results of operations, business or prospects of the Company, Staff
Acquisition or the Subsidiaries;
(xxi) Each of the Company, Staff Acquisition and the Subsidiaries
is 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, Staff Acquisition or any of the Subsidiaries would
have any liability; neither the Company, Staff Acquisition nor any of
the Subsidiaries has incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and
each "pension
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plan" for which the Company, Staff Acquisition or any of the
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;
(xxii) Each of the Company, Staff Acquisition and the Subsidiaries
has filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes due
thereon, and no tax deficiency has been determined adversely to the
Company, Staff Acquisition or any of the Subsidiaries which has had
(nor does the Company have any knowledge of any tax deficiency which,
if determined adversely to the Company, Staff Acquisition or any of the
Subsidiaries, might have) a material adverse effect on the consolidated
financial position, stockholders' or partners' equity, results of
operations, business or prospects of the Company and the Subsidiaries;
(xxiii) Since the date as of which information is given in the
Prospectus through the date hereof, except as is otherwise disclosed in
the Prospectus, neither the Company nor any of the Subsidiaries has (i)
issued or granted any securities, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business,
(iii) entered into any material transaction not in the ordinary course
of business or (iv) declared or paid any dividend on its capital stock;
(xxiv) Each of the Company, Staff Acquisition and each of the
Subsidiaries (i) makes and keeps accurate books and records and (ii)
maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary
to permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals;
(xxv) Neither the Company, Staff Acquisition nor any of the
Subsidiaries, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Company, Staff
Acquisition or any of the Subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other unlawful
payment;
(xxvi) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company, Staff Acquisition or any of the Subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) at,
upon or from any of the property now or previously owned or leased by
the Company, Staff Acquisition or the Subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except
for any violation or remedial action which would not have, or could not
be reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions, a material adverse effect on the
general affairs, management, financial position, stockholders' or
partners' equity or results of operations of the Company, Staff
Acquisition or the Subsidiaries; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company, Staff
Acquisition or any of the Subsidiaries or with respect to which the
Company, Staff Acquisition or any of the Subsidiaries have knowledge,
except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in
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the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a material adverse effect
on the general affairs, management, financial position, stockholders'
or partners' equity or results of operations of the Company, Staff
Acquisition or the Subsidiaries; and the terms "hazardous wastes",
"toxic wastes", "hazardous substances" and "medical wastes" shall have
the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection;
and
(xxvii) The unissued shares of Stock issuable upon redemption of
the Warrants have been duly and validly authorized and reserved for
issuance, and at the Time of Delivery with respect to such shares, such
shares will be delivered in accordance with the provisions of this
Agreement and will be duly and validly issued, fully paid and
non-assessable, will be free of preemptive and other preferential
rights to subscribe for or purchase shares of Stock granted by the
Company or pursuant to an agreement to which the Company is a party and
will conform to the description of the Stock contained in the
Prospectus.
(b) Each of the Selling Shareholders severally represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Shareholder of this
Agreement and the Power of Attorney and the Custody Agreement
hereinafter referred to, and for the sale and delivery of the Shares or
Warrants to be sold by such Selling Shareholder hereunder, have been
obtained; and such Selling Shareholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement and to sell, assign, transfer and deliver the Shares
or Warrants to be sold by such Selling Shareholder hereunder;
(ii) The sale of the Shares or Warrants to be sold by such Selling
Shareholder hereunder and the compliance by such Selling Shareholder
with all of the provisions of this Agreement, the Power of Attorney and
the Custody Agreement and the consummation of the transactions herein
and therein 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, any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder is bound or
to which any of the property or assets of such Selling Shareholder is
subject, nor will such action result in any violation of the charter,
by-laws or governing instruments of such Selling Shareholder or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over such Selling Shareholder or the
property or assets of such Selling Shareholder;
(iii) Such Selling Shareholder has, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof) such Selling
Shareholder will have, good and valid title to the Shares or Warrants
to be sold by such Selling Shareholder hereunder, free and clear of all
liens, encumbrances, equities or claims; and upon delivery of such
Shares registered in the name of Cede & Co. or such other nominee
designated by the Depository Trust Company ("DTC"), payment therefor
pursuant hereto and the crediting of the Underwriters' accounts with
such Shares in the records of DTC, Cede & Co. or such other nominee
designated by DTC shall be a "protected purchaser" of such Shares
(within the meaning of Section 8-303 of the Uniform Commercial Code as
adopted in the State of New York (the "Code")), and the Underwriters
will acquire a valid "security entitlement" (within the meaning of
Section 8-501 of the Code) with respect to such Shares, and no action
based on an "adverse claim" (as defined in Section 8-102 of the Code)
may be asserted against the Underwriters with respect to such security
entitlement (assuming that the Underwriters are without notice of any
such adverse claim);
(iv) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell, grant any option to
sell, transfer, pledge or otherwise dispose of, directly or indirectly,
except as provided hereunder, or cause the Company to file
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a registration statement under the Act with respect to, any Stock or
any other securities of the Company that are substantially similar to
the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior
written consent;
(v) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which 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 Shares;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Shareholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and
any further amendments or supplements to the Registration Statement and
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and 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;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(viii) Certificates in negotiable form representing all of the
Shares and Warrants to be sold by such Selling Shareholder hereunder
have been placed in custody under a Custody Agreement, in the form
heretofore furnished to you (the "Custody Agreement"), duly executed
and delivered by such Selling Shareholder to The Bank of New York, as
custodian (the "Custodian"), and such Selling Shareholder has duly
executed and delivered a Power of Attorney, in the form heretofore
furnished to you (the "Power of Attorney"), appointing the persons
indicated in Schedule II hereto, and each of them, as such Selling
Shareholder's attorneys-in-fact (the "Attorneys-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 the Selling Shareholders as provided in Section 2
hereof, to authorize the delivery of the Shares and Warrants 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, the Power of Attorney and the Custody
Agreement;
(ix) The Shares or Warrants represented by the certificates held in
custody for such Selling Shareholder under the Custody Agreement are
subject to the interests of the Underwriters hereunder; the
arrangements made by such Selling Shareholder for such custody, and the
appointment by such Selling Shareholder of the Attorneys-in-Fact by the
Power of Attorney, are to that extent irrevocable;
the obligations of the Selling Shareholders hereunder shall not be
terminated by 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 or
corporation, by the dissolution of such partnership or corporation, or
by the occurrence of any other event; if any individual 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 or corporation should be dissolved, or if any
other such event
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should occur, before the delivery of the Shares or Warrants hereunder,
certificates representing the Shares or Warrants shall be delivered by
or on behalf of the Selling Shareholders in accordance with the terms
and conditions of this Agreement and of the Custody Agreements; and
actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or
not the Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution or
other event; and
(x) Each Selling Shareholder has no reason to believe that the
representations and warranties of the Company contained in Section 1(a)
hereof are not materially true and correct, is familiar with the
Registration Statement and the Prospectus (as amended or supplemented)
and has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement, as of the effective date, or
the Prospectus (or any amendment or supplement thereto), as of the
applicable filing date, which has adversely affected or may adversely
affect the business of the Company and is not prompted to sell shares
of Stock by any information concerning the Company which is not set
forth in the Registration Statement and the Prospectus and which is
required to be so set forth.
2. Subject to the terms and conditions herein set forth, (a) each of
the Selling Shareholders agrees, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Shareholders, at a purchase price
per share of $..........., the number of Firm Shares (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying the aggregate
number of Firm Shares to be sold by each of the Selling Shareholders as set
forth opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the aggregate number of Firm Shares to
be purchased by all of the Underwriters from all of the Selling Shareholders
hereunder, (b) certain Selling Shareholders agree, severally and not jointly, to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from such Selling Shareholders, at a purchase price
of $. . . . per Warrant, the number of Firm Warrants (to be adjusted by you so
as to eliminate the redemption of a Warrant for a fractional share) determined
by multiplying the aggregate number of Firm Warrants to be sold by such Selling
Shareholders as set forth opposite their respective names in Schedule II hereto
by a fraction, the numerator of which is the aggregate number of Firm Warrants
to be purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the aggregate
number of all Firm Warrants to be purchased by all the Underwriters from such
Selling Shareholders and (c) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares and
Optional Warrants as provided below, each of the Selling Shareholders agrees,
severally and not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from each of the
Selling Shareholders, at the purchase price per share set forth in clause (a) of
this Section 2 or at the purchase price per Warrant set forth in clause (b) of
this Section 2, as the case may be, that portion of the number of Optional
Shares and Optional Warrants as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares and the redemption
of a Warrant for a fractional share) determined (i) in the case of Optional
Shares, by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder and (ii) in the case of Optional Warrants, by multiplying such number
of Optional Warrants by a fraction the numerator of which is the maximum number
of Optional Warrants which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Warrants that all of the Underwriters
are entitled to purchase hereunder.
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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 465,000 Optional Shares and up to 24,123
Optional Warrants, as the case may be, at the purchase price per share or per
Warrant set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Shares (including for this purpose all
of the shares of Stock to be received upon redemption of the Firm Warrants). Any
such election to purchase Optional Shares shall be made in proportion to the
number of Optional Shares to be sold by each Selling Shareholder as set forth in
Schedule II hereto, it being understood that for the purpose of this calculation
the Optional Warrants shall be treated as if they had been redeemed for shares
of Stock and that the Optional Shares and the Optional Warrants shall be
purchased in the same proportion as the total number of Optional Shares bears to
the total number of shares of Stock to be received upon redemption of all the
Optional Warrants. Any such election to purchase Optional Shares and Optional
Warrants may be exercised only by written notice from you to the
Attorneys-in-Fact, given within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional Shares and
Optional Warrants to be purchased and the date on which such Optional Shares and
Optional Warrants are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless you and the Attorneys-in-Fact otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares
(including for this purpose all the shares of Stock to be received upon
redemption of the Firm Warrants), the several Underwriters propose to offer the
Firm Shares (including for this purpose all the shares of Stock to be received
upon redemption of the Firm Warrants) for sale upon the terms and conditions set
forth in the Prospectus.
4. (a) The Shares and Warrants to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as Xxxxxxx, Xxxxx & Co. may request upon at least
forty-eight hours' prior notice to the Selling Shareholders shall be delivered
by or on behalf of the Selling Shareholders to Xxxxxxx, Sachs & Co., through the
facilities of DTC, for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by each of the Selling
Shareholders to Xxxxxxx, Xxxxx & Co. at least forty-eight hours in advance. The
Company will cause the certificates representing the Shares to be made available
for checking and packaging at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office of DTC or its
designated custodian, as the case may be (the "Designated Office"). The time and
date of such delivery and payment shall be, with respect to the Firm Shares and
the Firm Warrants, 9:30 a.m., New York time, on ............., 1998 or such
other time and date as Xxxxxxx, Sachs & Co. and the Selling Shareholders may
agree upon in writing, and, with respect to the Optional Shares and the Optional
Warrants, 9:30 a.m., New York time, on the date specified by Xxxxxxx, Xxxxx &
Co. in the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters'
election to purchase such Optional Shares and the Optional Warrants, or such
other time and date as Xxxxxxx, Xxxxx & Co. and the Selling Shareholders may
agree upon in writing. Such time and date for delivery of the Firm Shares and
the Firm Warrants is herein called the "First Time of Delivery", such time and
date for delivery of the Optional Shares and the Optional Warrants, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(k) hereof, will be delivered at the offices of Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at .......p.m., New
York City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
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5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus 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 further amendment or any supplement to the Registration
Statement or Prospectus which shall be 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 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 prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or 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 prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares 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 Shares, 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) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any events 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 in order to comply with the Act, to
notify you and upon your request to prepare and furnish without charge
to each Underwriter 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, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not
to offer, sell, contract to sell, grant any option to sell, transfer,
pledge or otherwise dispose of, directly or indirectly, except as
provided hereunder, or file a registration statement under the Act with
respect to, any Stock or any other securities of the Company that are
substantially similar to the
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Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior
written consent;
(f) To furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent
public accountants) and, to furnish (or make generally available
electronically and furnish upon request), as soon as practicable after
the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of
the Registration Statement), consolidated summary financial information
of the Company and its subsidiaries for such quarter in reasonable
detail;
(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 to 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 (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its shareholders generally or to the Commission);
(h) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act; and
(i) On or prior to any Time of Delivery, to redeem each Warrant to
be sold to the Underwriters at such Time of Delivery for one share of
Stock, each share of Stock to be duly authorized, validly issued,
fully paid and non-assessable and free and clear of all liens,
encumbrances, equities or claims; and to deliver such shares of Stock
to the Underwriters as provided in Section 4 hereof.
6. The Company and each of the Selling Shareholders covenant and agree with
one another and with the several Underwriters that (a) 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
Shares 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
printing or producing any Agreement among Underwriters, this Agreement, the Blue
Sky Memorandum, each Custody Agreement, each Power of Attorney, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares and
Warrants; (iii) all expenses in connection with the qualification of the Shares
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) all fees and expenses in connection with including the Shares for quotation
in the NASDAQ National Market System; (v) the filing fees incident to[, and the
fees and disbursements of counsel for the Underwriters in connection with,]
securing any required review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Shares; (vi) the cost of
preparing stock certificates; (vii) the cost and charges of any transfer agent
or registrar and (viii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section 6; and (b) such Selling Shareholder
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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, including (i) any fees and expenses
of counsel for such Selling Shareholder, (ii) such Selling Shareholder's pro
rata share of the fees and expenses of the Attorneys-in-Fact and the Custodian
and (iii) all expenses and taxes incident to the sale and delivery of the Shares
and Warrants to be sold by such Selling Shareholder to the Underwriters
hereunder. In addition, each Selling Shareholder agrees to reimburse the Company
upon request for such Selling Shareholder's pro rata portion of the filing fee
paid by the Company to the Commission and to the NASD referred to in this
Section 6 in connection with the offering of the Shares. In connection with
clause (b) (iii) of the preceding sentence, Xxxxxxx, Xxxxx & Co. agrees to pay
New York State stock transfer tax, and the Selling Shareholder agrees to
reimburse Xxxxxxx, Sachs & Co. for associated carrying costs if such tax payment
is not rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that (except as specifically provided above)
the Company shall bear, and the Selling Shareholders shall not be required to
pay or to reimburse the Company for, the cost of any other matters not directly
relating to the sale and purchase of the Shares pursuant to this Agreement, and
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares and the
Warrants to be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and of the Selling Shareholders herein are, at and as
of such Time of Delivery, true and correct, the condition that the Company and
the Selling Shareholders shall have performed all of its and their 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) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof 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) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the matters covered in paragraph (i), with
respect to the Company, the first clause of paragraph (ii), paragraph
(v) and paragraph (ix), with respect to the statements set forth under
the captions "Description of Capital Stock" and "Underwriting", of
subsection (c) below as well as the Registration Statement and
Prospectus and such other related 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) Powell, Goldstein, Xxxxxx & Xxxxxx LLP, counsel for the
Company, shall have furnished to you their written opinion, dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) Each of the Company, Staff Acquisition and each of the
Subsidiaries has been duly incorporated or organized, as the case
may be, and is validly existing as a corporation or a limited
partnership, as the case may be, in good standing under the laws
of its jurisdiction of incorporation or organization, is duly
qualified to do business and is in good standing as a foreign
corporation or a limited partnership, as the case may be, in each
jurisdiction in which its ownership or lease of property or the
conduct of its businesses requires
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such qualification (or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction) and has all power and authority necessary to own or
hold its properties and conduct the businesses in which it is
engaged;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of
the Company (including the shares of Stock being delivered at such
Time of Delivery) have been duly and validly authorized and issued,
are fully paid and non-assessable and conform to the description
thereof contained in the Prospectus; all of the issued equity
interests or all of the issued shares of capital stock, as the case
may be, of each Subsidiary and all of the issued shares of capital
stock of Staff Acquisition have been duly and validly authorized
and issued and are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iii) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of,
any shares of Stock pursuant to the Company's charter or by-laws or
any agreement or other instrument known to such counsel (other than
the provisions of Section 607.0902 of the Florida Business
Corporation Act with respect to the voting of shares of Stock
under the circumstances specified in such Section);
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company, Staff Acquisition or any
of the Subsidiaries is a party or of which any property or assets
of the Company, Staff Acquisition or any of the Subsidiaries is the
subject which, if determined adversely to the Company, Staff
Acquisition or any of the Subsidiaries, would individually or in
the aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders' or partners'
equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
(vi) The sale of the Shares and the Warrants being delivered at
such Time of Delivery and the compliance by the Company with all of
the provisions 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, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Company, Staff Acquisition or any of the
Subsidiaries is a party or by which the Company, Staff Acquisition
or any of the Subsidiaries is bound or to which any of the property
or assets of the Company, Staff Acquisition or any of the
Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter, by-laws or governing
instruments of the Company, Staff Acquisition or any of the
Subsidiaries or any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or body having
jurisdiction over the Company, Staff Acquisition or any of the
Subsidiaries or any of their properties or assets;
(vii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency
or body is required for the sale of the Shares or the Warrants
or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under
the Act of the Shares;
(viii) Neither the Company, Staff Acquisition nor any of the
Subsidiaries (i) is in violation of its charter, by-laws or
governing instruments or (ii) is in default, and no event has
occurred which, with notice or lapse of time or both, would
constitute a default, in the due performance or observance of any
obligation, agreement, term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is subject
and which is known to such counsel;
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(ix) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, under the caption
"Underwriting", insofar as they purport to describe the provisions
of this Agreement and the laws discussed in the last paragraph of
text under such caption, and under the caption "Industry
Regulation", insofar as they concern legal matters, are accurate,
complete and fair;
(x) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined
in the Investment Company Act; and
(xi) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company
prior to such Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Act and the rules and regulations
thereunder; although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, except for those
referred to in the opinion in paragraph (x) of this subsection (c),
they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) 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 not
misleading or that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading or that, as of such Time of Delivery, either
the Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit
to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required;
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of America
and the laws of the State of Florida.
(d) The respective counsel for each of the Selling Shareholders, as
indicated in Schedule II hereto, each shall have furnished to you their
written opinion with respect to each of the Selling Shareholders for
whom they are acting as counsel, dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Shareholder and constitute
valid and binding agreements of such Selling Shareholder in
accordance with their terms;
(ii) This Agreement has been duly executed and delivered by or on
behalf of such Selling Shareholder; and the sale of the Shares or
Warrants to be sold by such Selling Shareholder hereunder and the
compliance by such Selling Shareholder with all of the provisions
of this
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Agreement, the Power-of-Attorney and the Custody Agreement and
the consummation 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, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which such Selling Shareholder is a party
or by which such Selling Shareholder is bound or to which any
of the property or assets of such Selling Shareholder is
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of
such Selling Shareholder if such Selling Shareholder is a
corporation, the Partnership Agreement of such Selling
Shareholder if such Selling Shareholder is a partnership or
any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over
such Selling Shareholder or the property of such Selling
Shareholder;
(iii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated by this Agreement in connection with
the Shares or Warrants to be sold by such Selling Shareholder
hereunder, except such as have been obtained under the Act;
(iv) Immediately prior to such Time of Delivery, such Selling
Shareholder had good and valid title to the Shares to be sold at
such Time of Delivery by such Selling Shareholder under this
Agreement, free and clear of all liens, encumbrances, equities or
claims, and full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Shareholder hereunder;
(v) Immediately prior to such Time of Delivery such Selling
Shareholder had good and valid title to the Warrants to be sold at
such Time of Delivery by such Selling Shareholder under this
Agreement, free and clear of all liens, encumbrances, equities and
claims, and full right, power and authority to sell, assign,
transfer and deliver the Warrants to be sold by such Selling
Shareholder hereunder; and
(vi) Cede & Co. or such other nominee designated by DTC is a
"protected purchaser" of the Shares (within the meaning of Section
8-303 of the Code) referred to in (iv) above and the Underwriters
have acquired a valid "security entitlement" (within the meaning of
Section 8-501 of the Code) with respect to such Shares, and no
action based on an "adverse claim" (as defined in Section 8-102 of
the Code) may be asserted against the Underwriters with respect to
such security entitlement (assuming that the Underwriters are
without notice of any such adverse claim).
In rendering the opinion in paragraph (iv), such counsel may rely upon
a certificate of such Selling Shareholder in respect of matters of fact as to
ownership of, and liens, encumbrances, equities or claims on, the Shares or
Warrants sold by such Selling Shareholder, provided that such counsel shall
state that they believe that both you and they are justified in relying upon
such certificate.
(e) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and also at each Time of
Delivery, Deloitte & Touche LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex II
hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex II(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex II(b) hereto);
(f)(i) Neither the Company, Staff Acquisition or 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 or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
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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 capital stock (except
changes occurring by reason of the repurchase of shares of Stock under
the Company's Restricted Equity Plan or the issuance of shares of Stock
pursuant to the exercise of stock options and warrants) or long-term
debt of the Company, Staff Acquisition 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, Staff
Acquisition 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 the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in 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 in
securities generally on the New York Stock Exchange or NASDAQ; (ii) a
suspension or material limitation in trading in the Company's
securities on NASDAQ; (iii) a general moratorium on commercial banking
activities declared by either Federal or New York State authorities; or
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this Clause (iv)
in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(h) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement;
(i) The Company and the Selling Shareholders shall have furnished
or caused to be furnished to you at such Time of Delivery certificates
of officers of the Company and of the Selling Shareholders,
respectively, satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Selling
Shareholders, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company and the Selling Shareholders of
all of their respective obligations hereunder to be performed at or
prior to such Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to
be furnished certificates as to the matters set forth in subsections
(a) and (f) of this Section; and
(j) The Company shall have complied with the provisions of Section
5(j) with respect to the redemption of the Warrants to be sold at such
Time of Delivery for shares of Stock.
8. (a) The Company and each of the Selling Shareholders identified with an
asterisk in Schedule II hereto, jointly and severally, 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
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out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and each such Selling Shareholder
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 the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein; provided, further, that the liability of a Selling
Shareholder pursuant to this subsection (a) shall not exceed the sum of (i) the
product of the number of Shares (excluding any shares of Stock underlying the
Warrants) sold by such Selling Shareholder, including any Optional Shares, and
the public offering price of the Shares as set forth in the Prospectus and (ii)
the product of the number of Warrants sold by such Selling Shareholder,
including any Optional Warrants, to the Underwriters and the purchase price per
Warrant set forth in Section 2(b); and provided, further, that the Company and
each Selling Shareholder identified with an asterisk in Schedule II hereto shall
not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any Preliminary Prospectus to the extent that any
such loss, claim, damage or liability of such Underwriter results from the fact
that such Underwriter sold Shares to a person as to whom it shall be established
that there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus or of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus which was identified in writing at such time to such
Underwriter and corrected in the Prospectus or in the Prospectus as then amended
or supplemented.
(b) Each of the Selling Shareholders not identified with an asterisk in
Schedule II hereto 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, 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 Selling
Shareholder expressly for use therein, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Shareholder against any losses, claims, damages or liabilities to
which the Company or such 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 Xxxxxxx, Sachs & Co.
expressly for use therein; and will reimburse the Company and each Selling
Shareholder for any legal or other expenses
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reasonably incurred by the Company or such Selling Shareholder in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(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 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 (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection 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. No indemnifying party shall, without the
written consent of the 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 the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions 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 in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other 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 subsection (d) above, then each 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 of the Company and 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 in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and 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 (before deducting
expenses) received by the Company and 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 the Selling Shareholders 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 account
of 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 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
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(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 which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section 8 shall be in addition to any liability which the Company and the
respective Selling Shareholders 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 respective
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 or any Selling Shareholder within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, 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 Selling Shareholders shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Shareholders
that you have so arranged for the purchase of such Shares, or the Selling
Shareholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Shareholders shall have the right to postpone a Time
of Delivery 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 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 Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Shareholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Selling Shareholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery 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 by you and the Selling
Shareholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares to be purchased at such Time of Delivery, or if the Selling
Shareholders shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Shareholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Shareholders, except for the expenses to be borne by the Company
and the Selling Shareholders 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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(d) For the purposes of clarity, all references in this Section 9 to
the Shares shall be deemed to refer to and include the shares of Stock
underlying any Warrants to be purchased.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, 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 investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Shareholder, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Shareholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares or Warrants are not delivered by or on behalf
of the Selling Shareholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares and Warrants not so delivered, but the Company, the Subsidiaries and the
Selling Shareholders shall then be under no further liability to any Underwriter
in respect of the Shares and Warrants not so delivered except as provided in
Sections 6 and 8 hereof.
12. 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 jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any 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.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to any Selling Shareholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Shareholder at its
address set forth in Schedule II hereto; and if to the Company or any Subsidiary
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company, the Subsidiaries or the Selling Shareholders by you on
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, the Subsidiaries and the Selling Shareholders
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and the Subsidiaries and each person who controls the
Company, any Subsidiary, any Selling Shareholder or any Underwriter, 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 Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
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16. 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.
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the
Company, each Subsidiary and each of the Selling Shareholders. It is understood
that your acceptance of this letter 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 shall be submitted to the Company and the Selling Shareholders
for examination, upon request, but without warranty on your part as to the
authority of the signers thereof.
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Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
STAFF LEASING, INC.
By:
---------------------------------
Name:
Title:
[NAMES OF SELLING SHAREHOLDERS]
By:
---------------------------------
Name:
Title:
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
New York, New York:
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:
------------------------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
Number of
---------
Total Number Number of Optional Warrants
------------ Optional Shares to -----------------
of Firm Total Number of be <85> to be Purchased if
------- --------------- Purchased if --
UNDERWRITER Shares to be Firm Warrants to <86> Maximum Maximum Option
------------ ---------------- Option <87) --------------
Purchased be Purchased Exercised Exercised
--------- ------------ --------- ---------
Xxxxxxx, Xxxxx & Co...................................
Xxxxxx Brothers Inc...................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated....
--------- ------- ------- ------
Total........................................ 2,922,291 177,709 440,877 24,123
========= ======= ======= ======
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SCHEDULE II
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
--------------- ------------------
The Selling Shareholder(s):
[NAME OF SELLING SHAREHOLDER](A)
[NAME OF SELLING SHAREHOLDER](B)
[NAME OF SELLING SHAREHOLDER](C)
[NAME OF SELLING SHAREHOLDER](D)
[NAME OF SELLING SHAREHOLDER](E)
Total.........................................................
(a) This Selling Shareholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Shareholder.
(b) This Selling Shareholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Shareholder.
(c) This Selling Shareholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Shareholder.
(d) This Selling Shareholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Shareholder.
(e) This Selling Shareholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Shareholder.
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SCHEDULE III
Staff Capital, L.P.
Staff Leasing, L.P.
Staff Leasing II, L.P.
Staff Leasing III, L.P.
Staff Leasing IV, L.P.
Staff Leasing V, L.P.
Staff Leasing of Georgia, L.P.
Staff Leasing of Xxxxxxx XX, L.P.
Staff Leasing of Texas, L.P.
Staff Leasing of Texas II, L.P.
Staff Insurance, L.P.
Staff Acquisition, Inc.
Staff Insurance, Inc.
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