[Draft--2/1/02]
Exhibit 1.1
ANTEON INTERNATIONAL CORPORATION
COMMON STOCK
------------
UNDERWRITING AGREEMENT
[ ], 2002
Xxxxxxx, Xxxxx & Co.,
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
As representatives (the "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:
Anteon International Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of . . . . . . . shares of common stock ("Stock")
of the Company and the stockholders named in Schedule II hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of . . . . . . . shares of common stock of
the Company that such Selling Stockholders hold or will receive pursuant to the
exercise of options to purchase shares of common stock of the Company or Anteon
Virginia (as defined below), the conversion of a note convertible into shares of
common stock of the Company and/or the terms of the merger agreement between the
Company and Anteon International Corporation, a Virginia corporation and a
subsidiary of the Company ("Anteon Virginia"), described below. In addition,
certain of the Selling Stockholders propose, subject to the terms and conditions
stated herein, to sell to the Underwriters, at the election of the Underwriters,
up to . . . . . . . additional shares of Stock that such Selling Stockholders
hold or will receive pursuant to the terms of the merger agreement. The
aggregate of . . . . . . . shares to be sold by the Company and the Selling
1
Stockholders is herein called the "Firm Shares" and the aggregate of . . . . . .
additional shares to be sold by certain of the Selling Stockholders is herein
called the "Optional Shares". The Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares".
Immediately prior to the initial sale of the Shares by the Company and
the Selling Stockholders to the Underwriters, Anteon Virginia will merge with
and into the Company (the "Merger"). The Company will be the surviving
corporation of the Merger.
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. 333-75884)
(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
knowledge of the Company 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, each as
amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration
2
Statement, if any, became or hereafter becomes 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 Stockholder 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; the Registration Statement does not and will not, as of the
applicable effective date and as of the date of any amendment 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; and the Prospectus does not and will
not, as of the applicable filing date and as of the date of 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, in light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the representation and warranty contained in this Section
1(a)(iii) 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 Stockholder expressly for use in the
preparation of the answers therein to Items 7 and 11(m) of Form S-1;
3
(iv) Neither the Company nor any of its 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, other than as set forth or contemplated in the Prospectus,
there has not been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any material adverse change,
or any development that could reasonably be expected to result in a
prospective material adverse change, in or affecting the business,
financial condition, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect");
(v) The Company and its subsidiaries have good and marketable
title to all real property and 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 as could not reasonably be
expected to have a Material Adverse Effect; and any real property and
buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such
exceptions as could not reasonably be expected to have a Material
Adverse Effect;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where failure to
so qualify as a foreign corporation or be in good standing could not
have a Material Adverse Effect; and each subsidiary of the Company that
is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation
S-X under the Act (collectively, the "Significant Subsidiaries") has
been duly incorporated or organized and is validly existing as a
corporation or other legal entity in good standing under the laws of
its jurisdiction of incorporation or organization;
4
(vii) After giving effect to the Merger, the Amended and
Restated Certificate of Incorporation of the Company, in substantially
the form filed as an exhibit to the Registration Statement (the
"Restated Certificate of Incorporation"), and the offering of the
Shares (excluding the Optional Shares) and without giving effect to
subsequent issuances, if any, pursuant to employee benefit plans
described in the Prospectus or upon exercise of outstanding options
described in the Prospectus, the authorized, issued and outstanding
capital stock of the Company will be as set forth in the Prospectus
immediately preceding the phrase "(as adjusted)" in the "Common stock"
row and under the "Pro Forma" column in the table under the caption
"Capitalization" and will conform in all material respects to the
description of the Stock contained in the Prospectus; the shares of
issued and outstanding common stock, par value $0.01 per share, of the
Company described in the Prospectus under the "Actual" column under the
caption "Capitalization" have been duly authorized and validly issued
and are fully paid and nonassessable; and all of the issued and
outstanding shares of capital stock of each Significant Subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and (except for directors' qualifying shares)
are owned directly or indirectly by the Company, and, except as set
forth in the Prospectus under the caption "Description of Indebtedness
- Credit Facility - Security and Guarantees", free and clear of all
liens, encumbrances, equities or claims;
(viii) Assuming the Merger has been consummated and the
Restated Certificate of Incorporation has become effective, the Shares
have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and validly
issued and fully paid and non-assessable and will conform in all
material respects to the description of the Stock contained in the
Prospectus;
(ix) The issuance and sale of the Shares to be sold by the
Company, the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated (including the Merger) 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 or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
5
assets of the Company or any of its subsidiaries is subject, other
than such conflicts, breaches, violations or defaults that, singly or
in the aggregate, could not have a Material Adverse Effect, nor will
such actions result in any violation of the provisions of the Restated
Certificate of Incorporation or the Amended and Restated By-laws of the
Company, in substantially the form filed as an exhibit to the
Registration Statement (the "Restated By-laws"), or, other than as
singly or in the aggregate could not have a Material Adverse Effect,
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issuance and 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 and such consents, approvals,
authorizations, registrations or qualifications as have already been
obtained or may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters;
(x) Neither the Company nor any of its Significant
Subsidiaries is (A) in violation of its Certificate of Incorporation or
By-laws or (B) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound, other than in the case of clause (B) such
defaults that, singly or in the aggregate, could not have a Material
Adverse Effect;
(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, and under the caption
"Certain U.S. Federal Tax Considerations for Non-U.S. Holders", insofar
as they constitute summaries of United States federal law or regulation
or legal conclusions, are accurate, complete and fair in all material
respects;
(xii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, could individually
or in the
6
aggregate reasonably be expected to have a Material Adverse Effect;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(xiii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company",
as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(xiv) KPMG LLP, who has certified certain financial statements
of the Company and its subsidiaries, and Xxxxxx Xxxxxx & Company, LLP
and Xxxxx and Company PA who have certified certain financial
statements of Sherikon, Inc. and the training division of SIGCOM, Inc.,
respectively, are each independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
(b) Each of the Selling Stockholders severally and not jointly
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 Stockholder of
this Agreement and the Power of Attorney and the Custody Agreement
hereinafter referred to, and for the sale and delivery of the Shares to
be sold by such Selling Stockholder hereunder, have been obtained or
will be obtained prior to or substantially simultaneously with the
First Time of Delivery (as defined in Section 4 hereof); and such
Selling Stockholder has all necessary 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 to be
sold by such Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder
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
Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the property or assets of such Selling Stockholder is
subject, other than
7
such breaches, violations or defaults that, singly or in the aggregate,
could not materially adversely affect such Selling Stockholder's
ability to consummate the transactions contemplated hereby, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of such Selling Stockholder if
such Selling Stockholder is a corporation, the Limited Liability
Company Agreement of such Selling Stockholder if such Selling
Stockholder is a limited liability company, the Partnership Agreement
of such Selling Stockholder if such Selling Stockholder is a
partnership or any statute or, other than as could not, singly or in
the aggregate, materially adversely affect such Selling Stockholder's
ability to consummate the transactions contemplated hereby, any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
(iii) Upon the consummation of the Merger, the exercise of
such Selling Shareholder's options to purchase stock in the Company or
Anteon Virginia and/or the conversion of a convertible note held by
such Selling Stockholder into shares of common stock of the Company, as
applicable, such Selling Stockholder will have the right to receive the
Shares to be sold by such Selling Shareholder hereunder and immediately
prior to each Time of Delivery (as defined in Section 4 hereof) such
Selling Stockholder will have, good and valid title to the Shares to be
sold by such Selling Stockholder hereunder, free and clear of all
liens, encumbrances, equities or claims; and, upon delivery of such
Shares and payment therefor pursuant hereto, good and valid title to
such Shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the several Underwriters;
(iv) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Shares, including but not limited to
any securities (whether issued by the Company or an affiliate of the
Company) that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than (A) as a BONA FIDE gift or gifts, provided that
the donee or donees thereof agree to be bound in writing by the
restrictions set forth in this Section 1(b)(iv), (B) as a result of
testate or intestate
8
succession, provided that such succession shall be subject to the
restrictions set forth in this Section 1(b)(iv), (C) to any trust for
the direct or indirect benefit of such Selling Stockholder or the
immediate family of such Selling Stockholder, provided that the trustee
of the trust agrees to be bound in writing by the restrictions set
forth in this Section 1(b)(iv), and provided further that any such
transfer shall not involve a disposition for value, (D) if such Selling
Stockholder is a corporation, partnership, limited liability company or
similar entity, transfers to any wholly-owned subsidiary of such
Selling Stockholder, provided that it shall be a condition to such
transfer that such wholly-owned subsidiary execute an agreement stating
that such wholly-owned subsidiary is receiving and holding the
securities subject to the provisions of this Section 1(b)(iv) and there
shall be no further transfer of such securities except in accordance
with this Section 1(b)(iv), and provided further that such transfer
shall not involve a disposition for value and (E) 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 Stockholder 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 or any amendment or supplement thereto are
made in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use
therein, the Registration Statement did, and any further amendments or
supplements to the Registration Statement, 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; and to the extent that any statements or
omissions made in 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 Stockholder expressly for use therein, such
9
Preliminary Prospectus did, and the Prospectus and any further
amendments or supplements thereto, when they are filed with the
Commission, 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, in the light of the circumstances under
which they were made, 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 Stockholder 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 (A) all of
the shares of Anteon Virginia, which will be exchanged by such Selling
Stockholder in the Merger for Shares to be sold by such Selling
Stockholder hereunder, (B) Shares to be sold by such Selling
Stockholder hereunder, (C) exercise notices under options to purchase
shares of common stock of the Company constituting the right to receive
Shares to be sold by such Selling Stockholder hereunder upon exercise
of such options and/or (D) convertible notes and conversion notices
constituting the right to receive Shares to be sold by such Selling
Stockholder hereunder upon conversion of such convertible notes (the
certificates described in the foregoing clauses (A) through (D) are
referred to herein as the "Certificates") 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
Stockholder to [Name of Custodian], as custodian (the "Custodian"), and
such Selling Stockholder 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 Stockholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this
Agreement on behalf of such Selling Stockholder, to determine the
purchase price to be paid by the Underwriters to the Selling
Stockholders as provided in Section 2 hereof, to authorize the exercise
of any rights of such Selling Stockholder to receive Shares under the
Certificates and to authorize the delivery of
10
the Shares to be sold by such Selling Stockholder hereunder and
otherwise to act on behalf of such Selling Stockholder in connection
with the transactions contemplated by this Agreement and the Custody
Agreement; and
(ix) The Shares or the rights to receive Shares represented by
the Certificates held in custody for such Selling Stockholder under the
Custody Agreement (and the Shares to be received upon realization or
exercise of such rights) are subject to the interests of the
Underwriters hereunder; the arrangements made by such Selling
Stockholder for such custody, and the appointment by such Selling
Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to
that extent irrevocable; the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the
death or incapacity of any individual Selling Stockholder 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 Stockholder 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 should occur, before the delivery
of the Shares hereunder, certificates representing the Shares shall be
delivered by or on behalf of the Selling Stockholders 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.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Stockholders 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 the Company and each of the Selling
Stockholders, 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 Shares to be sold by the
Company and each of the Selling Stockholders 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
11
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 the Company and all of the Selling Stockholders hereunder and
(b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, each applicable Selling
Stockholder 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 the applicable Selling Stockholders, at the purchase price per
share set forth above in clause (a) of this Section 2, that portion of the
number of Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares) determined 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.
The Selling Stockholders, 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 ................... Optional Shares, at the
purchase price per share set forth in the paragraph above, for the sole purpose
of covering sales of shares in excess of the number of Firm Shares. Any such
election to purchase Optional Shares shall be made in proportion to the number
of Optional Shares to be sold by each Selling Stockholder as set forth in
Schedule II hereto. Any such election to purchase Optional Shares 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 to be purchased and the date on which
such Optional Shares 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, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares 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 Company and
12
the Selling Stockholders shall be delivered by or on behalf of the Company and
the Selling Stockholders to Xxxxxxx, Sachs & Co., 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 the Company and the Custodian 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 Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Designated Office"). The time and date of such delivery and
payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time, on
............., 2002 or such other time and date as Xxxxxxx, Xxxxx & Co., the
Company and the Selling Stockholders may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of
the Underwriters' election to purchase such Optional Shares, or such other time
and date as Xxxxxxx, Sachs & Co., the Company and the Selling Stockholders may
agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the "First Time of Delivery", such time and date for delivery of
the Optional Shares, 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(l) hereof, will be delivered at the offices
of Cravath, Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at 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.
5. The Company agrees with each of the Underwriters:
13
(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 reasonably
disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish you with copies thereof; to 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 reasonable 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 written and electronic 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
14
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 written and electronic 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 written and
electronic 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 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any 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;
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of
the Company and its
15
consolidated subsidiaries certified by independent public accountants)
and, 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), to make
available to its stockholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail; provided that the Company shall be deemed to have
complied with this Section 5(f) during any period that the Company is
meeting its reporting obligations under the Exchange Act;
(g) During a period of three 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 stockholders,
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 stockholders generally or to the Commission);]
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(i) To use its reasonable best efforts to list, subject to
notice of issuance, the Shares on the New York Stock Exchange (the
"Exchange");
(j) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required by Rule 463 under the Act;
(k) 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
16
(l) Upon the reasonable request of any Underwriter, to
furnish, or cause to be furnished, to such Underwriter an electronic
version of the Company's trademarks, servicemarks and corporate logo
for use on the website, if any, operated by such Underwriter for the
purpose of facilitating the on-line offering of the Shares (the
"License"); PROVIDED, HOWEVER, that the License shall be used solely
for the purpose described above, is granted without any fee and may not
be assigned or transferred.
6. The Company and each of the Selling Stockholders 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, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (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 reasonable 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 listing the
Shares on the New York Stock Exchange; (v) the filing fees incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with, securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Shares; (vi) the cost of preparing
share certificates; (vii) the cost and charges of any transfer agent or
registrar and (viii) all other costs and expenses incident to the performance of
the Company's and the Selling Shareholders' obligations hereunder which are not
otherwise specifically provided for in this Section; and (b) such Selling
Stockholder will pay or cause to be paid all costs and expenses incident to the
performance of such Selling Stockholder's obligations hereunder which are not
otherwise specifically provided for in this Section, including (i) any fees and
expenses of counsel for such Selling Stockholder, (ii) such Selling
Stockholder'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 to be sold by such Selling Stockholder to the
Underwriters hereunder. In connection with
17
clause (b) (iii) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to pay
New York State stock transfer tax, and the Selling Stockholder agrees to
reimburse Xxxxxxx, Xxxxx & 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 the Company shall bear, and the Selling
Stockholders 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 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 Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders 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) Cravath, Swaine & Xxxxx, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions (a draft
of each such opinion is attached as Annex II(a) hereto), dated such
Time of Delivery, with respect to the matters covered in paragraphs
(i), (vii), (xi) and (xiii) of subsection (c) below as well as 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;
18
(c) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel for the
Company, shall have furnished to you their written opinion, dated such
Time of Delivery, in form and substance reasonably satisfactory to you,
to the effect that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware. The Company has all necessary corporate
power and authority to hold its properties and conduct its
business as described in the Registration Statement.
(ii) The Company has an authorized capitalization as
set forth in the Prospectus under the "As Adjusted" column
under the caption "Capitalization". The Shares have been duly
authorized by all necessary corporate action on the part of
the Company and, when issued and delivered to and paid for by
the Underwriters at such Time of Delivery in accordance with
the terms hereof, will be validly issued, fully paid and
non-assessable.
(iii) All of the issued and outstanding shares of the
Common Stock of the Company are validly issued and
outstanding, fully paid and non- assessable.
(iv) The Common Stock of the Company conforms in all
material respects to the description contained in the
Prospectus under the caption "Description of Common Stock."
(v) This Agreement has been duly authorized, executed
and delivered by the Company.
(vi) The statements 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 in all material respects. The statements in the
Prospectus under the caption "Certain United States Federal
Income Tax Considerations," to the extent that they constitute
summaries of United States federal law or regulation or legal
conclusions, have been reviewed by such counsel and fairly
summarize the matters described under that caption in all
material respects.
19
(vii) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
company prior to such Time of Delivery, as of their respective
effective or issue times, appear on their face to be
appropriately responsive in all material respects to the
requirements of the Act and the rules and regulations of the
Commission under the Act (the "Rules and Regulations"), except
for the financial statements, financial statement schedules
and other financial data included or incorporated by reference
in or omitted from either of them, as to which such counsel
express no opinion.
(viii) Such counsel do not know of any contract or
other document which is required to be filed as an exhibit to
the Registration Statement by the Act or the Rules and
Regulations which has not been so filed as an exhibit to the
Registration Statement as permitted by the Rules and
Regulations.
(ix) The issuance and sale of the Shares by the
Company, the compliance by the Company with all of the
provisions hereof and the performance by the Company of its
obligations hereunder will not (i) result in a violation of
the Restated Certificate of Incorporation or Restated By-laws
of the Company, (ii) breach or result in a default under any
agreement, indenture or instrument listed as an Exhibit to the
Registration Statement or otherwise referred to in the
Registration Statement to which the Company or any of its
subsidiaries is a party or is bound or to which any of the
properties or assets of the Company or any subsidiary is
subject or (iii) violate the Delaware General Corporation Law
or those laws, rules and regulations of the United States of
America, which in such counsel's experience are normally
applicable to the transactions of the type contemplated by
this Agreement ("Applicable Law") or any order of any court
known to such counsel, except in the case of clause (ii) or
(iii) where the breach or violation could not have a Material
Adverse Effect on the Company.
(x) No consent, approval, authorization or order of
any executive, legislative, judicial, administrative or
regulatory body of the State of Delaware or the United States
of America ("Governmental Authority"), which has not been
obtained, taken or made (other than as required by any state
securities laws, as to which such counsel
20
express no opinion) is required under any Applicable Law for
the issuance or sale of the Shares or the performance by the
Company of its obligations under this Agreement.
(xi) The Company is not required to be, and after the
issuance and sale of the Shares contemplated hereby, will not
be required to be, registered as an investment company under
the Investment Company Act of 1940, as amended.
(xii) Such counsel have participated in the
preparation of the Registration Statement and the Prospectus
and, although the limitations inherent in the independent
verification of factual matters and in the role of outside
counsel are such that such counsel have not undertaken to
investigate or verify independently, and do not assume
responsibility for, the accuracy, completeness or fairness of
the statements contained in either of them (other than as
explicitly stated in paragraphs (iv) and (vi) above), based
upon such participation, no facts have come to such counsel's
attention that led them to believe that (a) the Registration
Statement or any amendment (except for the financial
statements, financial statement schedules and other financial
data included in or omitted from those documents, as to which
such counsel express no such belief), at the time it became
effective, 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
(b) the Prospectus or any amendment or supplement (except for
the financial statements, financial statement schedules and
other financial data included in or omitted from those
documents, as to which such counsel express no such belief),
at the time the Prospectus was issued or on the date of the
opinion, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) Xxxxxx X. Xxxxxx, Esq., general counsel for the Company,
shall have furnished to you his written opinion, dated such Time of
Delivery, in form and substance reasonably satisfactory to you, to the
effect that:
21
(i) The Company is duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns
or leases properties or conducts any business so as to require
such qualification, except where failure to be so qualified
and in good standing could not have a Material Adverse Effect.
(ii) Each Significant Subsidiary is duly incorporated
and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all
of the issued and outstanding shares of capital stock of each
Significant Subsidiary are validly issued and outstanding and
fully paid and non-assessable, and (except for directors'
qualifying shares) are owned of record, and to such counsel's
knowledge beneficially, directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims
except for those described in the Prospectus.
(iii) To 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 or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which could
reasonably be expected, either individually or in the
aggregate, to have a Material Adverse Effect; and, to such
counsel's knowledge, no such proceedings are threatened by
governmental authorities or others.
(iv) Neither the Company nor any of its Significant
Subsidiaries is in violation of its Certificate of
Incorporation or By-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement, or lease or agreement or other instrument to which
it is a party or by which it or any of its properties may be
bound, other than such violations or defaults as could not
reasonably be expected to have a Material Adverse Effect.
(e) The respective counsel for each of the Selling
Stockholders, as indicated in Schedule II hereto, each shall have
furnished to you their written opinion with respect to each of the
Selling Stockholders for whom they are acting as
22
counsel, dated such Time of Delivery, in form and substance reasonably
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 Stockholder
and constitute valid and binding agreements of such Selling
Stockholder in accordance with their terms;
(ii) This Agreement has been duly executed and
delivered by or on behalf of such Selling Stockholder; and the
sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder 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, breach or violate any terms or provisions of, or
constitute a default under, any statute, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
actually known to such counsel to which such Selling
Stockholder is a party or by which such Selling Stockholder is
bound or to which any of the property or assets of such
Selling Stockholder is subject, other than any conflicts,
breaches, violations or defaults that could not reasonably be
expected to materially adversely affect such Selling
Stockholder's ability to consummate the transactions
contemplated hereby, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation or By-laws of such Selling Stockholder if such
Selling Stockholder is a corporation, the Limited Liability
Company Agreement of such Selling Stockholder if such Selling
Stockholder is a limited liability company, the Partnership
Agreement of such Selling Stockholder if such Selling
Stockholder is a partnership or any applicable law, order,
rule or regulation actually known to such counsel of any court
or governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling
Stockholder, other than any violation that could not
reasonably be expected to materially adversely affect such
Selling Stockholder's ability to consummate the transactions
contemplated hereby;
(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
23
Shares to be sold by such Selling Stockholder hereunder,
except as have been duly obtained and are in full force and
effect (other than as required by any state securities laws,
as to which such counsel express no opinion);
(iv) Such Selling Stockholder is the record owner of
the shares to be sold by such Selling Stockholder;
(v) Delivery of the Shares to be sold by such Selling
Stockholder, upon payment therefor pursuant to this Agreement,
will transfer title to such Shares free and clear of any
adverse claim, to any Underwriter who takes such Shares in
good faith without notice of an adverse claim within the
meaning of the Uniform Commercial Code.
In rendering the opinion in paragraph (iv), without any independent
inquiry such counsel may rely solely upon a certificate of such Selling
Stockholder in respect of matters of fact as to ownership of the Shares sold by
such Selling Stockholder;
(f) 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, KPMG LLP, Xxxxxx Xxxxxx & Company, LLP and Xxxxx
and Company PA 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 I hereto (the
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(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 I(b) hereto);
(g)(i) Neither the Company nor any of its 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 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 or long-term debt of the Company
or any of its subsidiaries or any change, or any
24
development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its 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;
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(i) 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 Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war or (v) the occurrence of
any other calamity or crisis or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of
any such event specified in clause (iv) or (v) 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;
(j) The Shares at such Time of Delivery shall have been duly
listed, subject to notice of issuance, on the Exchange;
(k) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of Georgica (Azimuth
Technologies), Inc., [Xxx Xxxxxx,] Xxxxxxx Xxxxx, Xxxxx Xxxxx, Xxx
Xxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx
25
Xxxxxxxxx, Xxxxxx Xxxxxx and [new independent directors], substantially
to the effect set forth in Subsection 1(b)(iv) hereof in form and
substance satisfactory to you;
(l) 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;
(m) The Company and the Selling Stockholders 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
Stockholders, respectively, satisfactory to you as to the accuracy of
the representations and warranties of the Company and the Selling
Stockholders, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company and the Selling Stockholders 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
(n) The Merger shall have been consummated as described in the
Prospectus.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will 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 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
26
to the Company by any Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein.
(b) Each of the Selling Stockholders, will severally and not jointly
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 the information described
in Schedule III; 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 that the liability of a Selling Stockholder pursuant to this
subsection (b) shall not exceed the product of the number of Shares sold by such
Selling Stockholder including Optional Shares and the initial public offering
price of the Shares as set forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon 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, Xxxxx & Co.
expressly for use therein; and will reimburse the Company and each Selling
27
Stockholder for any legal or other expenses reasonably incurred by the Company
or such Selling Stockholder 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, it being understood, however, that the indemnifying party shall not be
liable for the reasonable expenses of more than one separate counsel (in
addition to local counsel), approved by the indemnifying party, representing the
indemnified parties who are parties to such action), 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. The indemnifying party shall indemnify and hold harmless the indemnified
party from and against any losses, claims, damages, liabilities and judgments by
reason of any settlement of any proceeding (i) effected with the indemnifying
party's written consent or (ii) effected without the indemnifying party's
written consent if the settlement is entered into more than [thirty] days
28
after the indemnifying party shall have received a written request from the
indemnified party for reimbursement of fees and expenses of counsel (in any case
where such fees and expenses are at the expense of the indemnifying party) and,
prior to the date of such settlement, the indemnifying party shall have failed
to comply with such reimbursement request.
(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 Stockholders 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 Stockholders 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 Stockholders 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 Stockholders 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 Stockholders 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 Stockholders 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
29
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 (e), (i) 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 and (ii) no Selling Stockholder shall be required
to contribute any amount in excess of the amount by which (A) the product of the
number of Shares sold by such Selling Stockholder including any Optional Shares
and the initial public offering price of the Shares as set forth in the
Prospectus exceeds (B) the amount of any damages which such Selling Shareholder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 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 [or any Selling
Stockholder] and to each person, if any, who controls the Company or any Selling
Stockholder 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,
30
then the Company and the Selling Stockholders 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 Company and the
Selling Stockholders that you have so arranged for the purchase of such Shares,
or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders 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 Company and
the Selling Stockholders 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 Company and the Selling Stockholders 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 Company and
the Selling Stockholders 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 Company and the Selling Stockholders 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
31
and of the Company and the Selling Stockholders to sell the Optional Shares)
shall thereupon terminate, without liability on the part of any non- defaulting
Underwriter or the Company or the Selling Stockholders, except for the expenses
to be borne by the Company and the Selling Stockholders 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.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders 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 Stockholders, or any officer
or director or controlling person of the Company, or any [officer or director
or] controlling person of any Selling Stockholder, 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 Stockholders 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 are not delivered by or on behalf of the
Company and the Selling Stockholders as provided herein, the Company and each of
the Selling Stockholders pro rata (based on the number of Shares to be sold by
the Company and such Selling Stockholder hereunder) [, with the number of Shares
to be sold by ............... and ................ to be included, for purposes
of this Section, in the number of Shares to be sold by 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 not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares 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, Sachs & Co. on behalf of you as the
representatives; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement,
32
request, notice or agreement on behalf of such Selling Stockholder made or given
by any or all of the Attorneys-in-Fact for such Selling Stockholder.
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, Xxxxx &
Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in Schedule II hereto; and if to the Company 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(d) 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
or the Selling Stockholders 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 and the Selling Stockholders and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and [the Selling Stockholder] each person who controls the Company,
any Selling Stockholder 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.
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.
33
17. The Company and the Selling Stockholders are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, without the Underwriters imposing
any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign
and return to us [ ] 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
and each of the Selling Stockholders. 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 Stockholders for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly appointed
as Attorney- in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power-of-Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
ANTEON INTERNATIONAL CORPORATION
By:
------------------------------------
Name:
Title:
[Names of Selling Stockholders]
By:
------------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of
each of the Selling Stockholders named
in Schedule II to this Agreement.
34
Accepted as of the date hereof at
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
XXXXXXX, XXXXX & CO.
[Name(s) of Co-Representatives]
...................................................
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
35
SCHEDULE I
Number of
Optional Shares to
be Purchased
if Maximum
Total Number of Option
Firm Shares ------
Underwriter to be Purchased Exercised
----------- --------------- ---------
Xxxxxxx, Xxxxx & Co..............................
Bear, Xxxxxxx & Co. Inc..........................
Credit Suisse First Boston Corporation...........
Xxxxxx Brothers Inc..............................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.....................................
[Names of other Underwriters]....................
Total......................................... ---------- ----------
========== ==========
36
SCHEDULE II
Number of
Optional Shares
to be Sold
if Maximum
Total Number Option
of Firm ------
Shares to be Sold Exercised
----------------- ---------
The Company.................................................
The Selling Stockholder(s):...........................
Azimuth Technologies, L.P..........................
Azimuth Tech, II LLC...............................
Xxxxxxxxx X. Xxxxxx................................
Xxxxxxx X. Xxxxxx..................................
Xx. Xxxx Xxxxxxxx..................................
Xxxxxx X. Xxxxx....................................
Xxxxxxx X. Xxxxxxxx................................
Xxxxxxx X. Xxxxxxxxx...............................
Xxxxxx X. Xxxxxxx..................................
Xxxx X. Xxxxxxx....................................
Xxxxxx Xxxxxxxx....................................
Xxxxxx Xxxxxxxxxxx.................................
Xxxxxx Xxxxxx......................................
Xxxxx Xxxxxx.......................................
Xxxxxx Xxxxxx......................................
Total..............................................
============ ============ (7)]
----------
(a) This Selling Stockholder 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 Stockholder.
(b) This Selling Stockholder 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 Stockholder.
(c) This Selling Stockholder is represented by [Name and Address of Counsel] and
has appointed [Names of Attorneys-in-Fact (not less
37
than two)], and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
(d) This Selling Stockholder 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 Stockholder.
(e) This Selling Stockholder 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 Stockholder.
38
SCHEDULE III
[To be provided]
39
ANNEX I
Pursuant to Section 7(d) of the
Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and any
supplementary financial information and schedules and consolidated pro forma
financial information examined by them and included in the Prospectus or the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published rules
and regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of Certified
Public Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited consolidated
financial statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been separately
furnished to the representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus on the basis of
specified procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations, nothing came to their attention that caused them to believe that
the unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus agrees with the
corresponding amounts in the audited consolidated financial statements for such
five fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited consolidated financial statements and other
information referred to below, a reading of the latest available consolidated
interim financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited consolidated financial statements included in the Prospectus,
inquiries of officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that caused them to
believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included in the Prospectus;
2
(C) the unaudited consolidated financial statements which were
not included in the Prospectus but from which were derived any
unaudited condensed consolidated financial statements referred to in
clause (A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B) were not
determined on a basis substantially consistent with the basis for the
audited consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest consolidated
financial statements included in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(F) for the period from the date of the latest consolidated
financial statements included in the Prospectus to the specified date
referred to in clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for decreases or
3
increases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and (vi)
above, they have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified by
the Representatives, which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus, or in Part II
of, or in exhibits and schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
4
