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EXHIBIT 1.1
_______________ SHARES
XXXX ELECTRONICS CORP.
COMMON STOCK
UNDERWRITING AGREEMENT
November ___, 1997
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
As representatives of the several U.S. Underwriters named
in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXXXX, LUFKIN & XXXXXXXX INTERNATIONAL
BEAR, XXXXXXX INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
As representatives of the several International Managers named
in Schedule II hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx International
00 Xxxxxxxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Dear Sirs:
The stockholders listed on Schedule III hereto (the "Selling
Stockholders") propose to sell to the several Underwriters (as defined below)
___________ shares (the "Firm Shares") of common stock, $0.01 par value per
share (the "Common Stock"), of Xxxx Electronics Corp., a Delaware corporation
(the "Company"). It is understood that, subject to the conditions hereinafter
stated, _________ Firm Shares (the "U.S. Firm Shares") will be sold to the
several U.S. Underwriters
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named in Schedule I hereto (the "U.S. Underwriters") in connection with the
offering and sale of such U.S. Firm Shares in the United States and Canada to
United States and Canadian Persons (as such terms are defined in the Agreement
Between U.S. Underwriters and International Managers of even date herewith),
and ________ Firm Shares (the "International Shares") will be sold to the
several International Managers named in Schedule II hereto (the "International
Managers") in connection with the offering and sale of such International
Shares outside the United States and Canada to persons other than United States
and Canadian Persons. Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
Bear, Xxxxxxx & Co., Inc., Credit Suisse First Boston Corporation, Xxxxxxx
Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx
Xxxxxxx & Co. Incorporated shall act as representatives (the "U.S.
Representatives") of the several U.S. Underwriters, and Xxxxxxxxx, Lufkin &
Xxxxxxxx International, Bear, Xxxxxxx International Limited, Credit Suisse
First Boston (Europe) Limited, Xxxxxxx Xxxxx International and Xxxxxx Xxxxxxx &
Co. International Limited shall act as representatives (the "International
Representatives") of the several International Managers. The U.S. Underwriters
and the International Managers are hereinafter collectively referred to as the
"Underwriters."
Additionally, the Company proposes to sell to the several U.S.
Underwriters not more than an additional __________ shares of Common Stock (the
"Additional Shares"), if requested by the U.S. Underwriters as provided in
Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares."
SECTION 1. Registration Statement and Prospectus. The Company
has prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 including a
prospectus relating to the Shares, which from time to time may be amended. The
registration statement contains two prospectuses to be used in connection with
the offering and sale of the Shares: the U.S. prospectus, to be used in
connection with the offering and sale of Shares in the United States and Canada
to United States and Canadian Persons, and the international prospectus, to be
used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons
(including, in the case of all references to the Registration Statement or the
Prospectus, documents incorporated therein by reference). The international
prospectus is identical to the U.S. prospectus except for the outside front and
back cover pages. The registration statement as amended at the time when it
becomes effective, including any registration statement increasing the size of
the offering filed pursuant to Rule 462(b) under the Act or, if a post-
effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness and including the
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A or Rule 434 under the Act, is
hereinafter referred to as the "Registration Statement"; and the U.S.
prospectus and the international prospectus (including any prospectus subject
to completion meeting the requirements of Rule 434(b) under the Act provided by
the Company with any term sheet meeting the requirements of Rule 434(b) as the
prospectus provided to meet the requirements of Section 10(a) of the Act) in
the respective forms first used to confirm sales of Shares are hereinafter
referred to as the "Prospectus." The terms "supplement" and "amendment" or
"amend" as used in this Agreement
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with respect to the Registration Statement or the Prospectus shall include all
documents subsequently filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") that are deemed to
be incorporated by reference in the Prospectus.
SECTION 2. Agreements to Sell and Purchase and Lock-Up
Agreements. On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, each Selling
Stockholder agrees, severally and not jointly, to sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Selling Stockholders at
a price per Share of $_________ (the "Purchase Price"), the number of Firm
Shares opposite the name of such Underwriter in Schedules I and II hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the U.S. Underwriters shall have the right
to purchase, severally and not jointly, any or all of the Additional Shares
from the Company at the Purchase Price. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The U.S. Underwriters may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. The U.S. Representatives shall give any such notice on behalf of
the U.S. Underwriters and such notice shall specify the aggregate number of
Additional Shares to be purchased pursuant to such exercise and the date for
payment and delivery thereof which date shall be a business day (i) no earlier
than the Closing Date (as hereinafter defined), (ii) no later than ten business
days after such notice has been given and (iii) no earlier than two business
days after such notice has been given. If any Additional Shares are to be
purchased, each U.S. Underwriter, severally and not jointly, agrees to purchase
from the Company the number of Additional Shares (subject to such adjustments
to eliminate fractional shares as the U.S. Representatives may determine) which
bears the same proportion to the total number of Additional Shares to be
purchased from the Company as the number of U.S. Firm Shares set forth opposite
the name of such U.S. Underwriter in Schedule I bears to the total number of
U.S. Firm Shares.
The Company and the Selling Stockholders hereby agree, and the Company
shall, concurrently with the execution of this Agreement, deliver an agreement
executed by (i) each of the directors and executive officers of the Company and
(ii) each additional stockholder listed on Annex I hereto, pursuant to which
each such person agrees, not to offer, sell, contract to sell, grant any option
to purchase or otherwise dispose of any Common Stock or any securities
convertible into or exercisable or exchangeable for shares of such Common Stock
or in any other manner transfer all or a portion of the economic consequences
associated with the ownership of any shares of Common Stock, for a period of 90
days after the date of the Prospectus without the prior written consent of
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. You hereby agree that you
shall waive compliance with the restrictions contained in such agreements in
the event any of the foregoing persons (i) makes a bona fide gift or gifts of
shares of Common Stock or securities convertible into or exercisable or
exchangeable for such Common Stock, provided that the recipient of any such
shares or other securities granted or issued pursuant to this clause (i) agrees
in writing to be bound
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by the foregoing restrictions for the remainder of such 90-day period, or (ii)
makes a distribution of such shares of Common Stock or securities convertible
into or exercisable or exchangeable for such Common Stock to limited partners,
beneficiaries or shareholders of such person, provided that the recipient of
any such shares or other securities distributed or issued pursuant to this
clause (ii) agrees in writing to be bound by the foregoing restrictions for the
remainder of such 90-day period. Notwithstanding the foregoing, during such
period, the Company (i) may grant stock options pursuant to the Company's
existing stock option plan, (ii) may issue shares of Common Stock upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and (iii) may issue shares of Common Stock or securities
convertible into or exercisable or exchangeable for shares of Common Stock in
connection with an acquisition or business combination; provided that the
recipient of any such shares or other securities issued pursuant to this clause
(iii) agrees in writing to be bound by the foregoing restrictions for the
remainder of such 90-day period.
SECTION 3. Terms of Public Offering. The Company and the
Selling Stockholders are advised by you that the Underwriters propose (i) to
make a public offering of their respective portions of the Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Shares upon the terms set forth in
the Prospectus.
Each U.S. Underwriter hereby makes to, with and for the benefit of,
each of the Company and the Selling Stockholders the representations and
agreements of such U.S. Underwriter contained in the fifth paragraph of Section
4 of the Agreement Between U.S. Underwriters and International Managers (the
"Intersyndicate Agreement") of even date herewith. Each International Manager
hereby makes to, with and for the benefit of, each of the Company and the
Selling Stockholders the representations and agreements of such International
Manager contained in the second, third, fourth, fifth and tenth paragraphs of
Section 5 of the Intersyndicate Agreement.
SECTION 4. Delivery and Payment. Delivery to the Underwriters
of and payment for the Firm Shares shall be made at 10:00 A.M., New York City
time, on November ___, 1997 (the "Closing Date"), at such place as you shall
designate. The Closing Date and the location of delivery of and the form of
payment for the Firm Shares may be varied by agreement between you and the
Company.
Delivery to the U.S. Underwriters of and payment for any Additional
Shares to be purchased by the U.S. Underwriters shall be made at such place as
the U.S. Representatives shall designate at 10:00 A.M., New York City time, on
the date specified in the applicable exercise notice given by the U.S.
Representatives pursuant to Section 2 (an "Option Closing Date"). Any such
Option Closing Date and the location of delivery of and the form of payment for
such Additional Shares may be varied by agreement between the U.S.
Representatives and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day prior to the
Closing
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Date or the applicable Option Closing Date, as the case may be. Certificates
in definitive form evidencing the Shares shall be delivered to you on the
Closing Date or the applicable Option Closing Date, as the case may be, with
any transfer taxes on the Firm Shares duly paid by the Selling Stockholders and
any transfer taxes on the Additional Shares, if applicable, duly paid by the
Company, for the respective accounts of the several Underwriters, against
payment to the Selling Stockholders or the Company, as the case may be, of the
Purchase Price therefor by wire transfer of Federal or other funds immediately
available to an account designated by the Selling Stockholders or the Company,
as the case may be.
SECTION 5. Agreements of the Company. The Company agrees with
you:
(a) To use its best efforts to cause the Registration
Statement to become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment to it becomes effective, (ii)
of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, and (iv) of the happening of
any event during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) To furnish you, without charge, six signed copies of
the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits and documents incorporated therein by
reference, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of
each amendment to it, without exhibits but including documents incorporated
therein by reference, as you may reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or to make any amendment or supplement to the Prospectus (including
the issuance or filing of any term sheet within the meaning of Rule 434) of
which you shall not previously have been advised or to which you shall
reasonably object; and to prepare and file with the Commission, promptly upon
your reasonable request, any amendment to the Registration Statement or
supplement to the Prospectus (including the issuance or filing of any term
sheet within the meaning of Rule 434) which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its best
efforts to cause the same to become promptly effective.
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(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the opinion
of counsel for the Underwriters a prospectus is required by law to be delivered
in connection with sales by an Underwriter or a dealer, to furnish to each
Underwriter and dealer as many copies of the Prospectus (and of any amendment
or supplement to the Prospectus) and any documents incorporated therein by
reference as such Underwriter or dealer may reasonably request.
(f) If during the period specified in paragraph (e) any
event shall occur as a result of which, in the reasonable opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with any
law, forthwith to prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply with law,
and to furnish to each Underwriter and to such dealers as you shall specify,
such number of copies thereof as such Underwriter or dealers may reasonably
request.
(g) Prior to any public offering of the Shares, to
cooperate with you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the several
Underwriters and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be reasonably necessary in order
to effect such registration or qualification.
(h) To mail and make generally available to the Company's
stockholders as soon as reasonably practicable an earnings statement covering a
twelve month period ending December 31, 1998 which shall satisfy the provisions
of Section 11(a) of the Act.
(i) During the period of three years after the date of
this Agreement, (i) to mail as soon as reasonably practicable after the end of
each fiscal year to the record holders of its Common Stock a financial report
of the Company and its subsidiaries on a consolidated basis (and a similar
financial report of all unconsolidated subsidiaries, if any), all such
financial reports to include a consolidated balance sheet, a consolidated
statement of operations, a consolidated statement of cash flows and a
consolidated statement of shareholders' equity as of the end of and for such
fiscal year, together with comparable information as of the end of and for the
preceding year, certified by independent certified public accountants, and (ii)
to mail and make generally available as soon as practicable after the end of
each quarterly period (except for the last quarterly period of each fiscal
year) to such holders, a consolidated balance sheet, a consolidated statement
of operations and a consolidated statement of cash flows (and similar financial
reports of all unconsolidated subsidiaries, if any) as of the end of and for
such period, and for the period from the beginning of such year to the close of
such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
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(j) During the period referred to in paragraph (i), to
furnish to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the holders of Common Stock or
filed with the Commission and such other publicly available information
concerning the Company and its subsidiaries as you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), each
preliminary prospectus and all amendments and supplements to any of them prior
to or during the period specified in paragraph (e), (ii) the printing and
delivery of the Prospectus and all amendments or supplements to it during the
period specified in paragraph (e), (iii) the printing and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky memoranda and all other
agreements, memoranda, correspondence and other documents printed and delivered
in connection with the offering of the Shares, (iv) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states (including in each case the reasonable fees and
disbursements of counsel for the Underwriters relating to such registration or
qualification and memoranda relating thereto), (v) filing fees in connection
with clearance with the National Association of Securities Dealers, Inc. of the
offering, (vi) the listing of the Additional Shares on the New York Stock
Exchange (the "NYSE"), (vii) furnishing such copies of the Registration
Statement, the Prospectus and all amendments and supplements thereto as may be
requested for use in connection with the offering or sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold and (viii) the
performance by the Company and the Selling Stockholders of their other
obligations under this Agreement.
(l) To use its best efforts to list the Additional Shares
on the NYSE and to maintain the listing of the Common Stock on the NYSE for a
period of three years after the effective date of the Registration Statement.
(m) To use the net proceeds of the sale of the Additional
Shares in substantially the manner set forth in the Prospectus.
(n) To use its commercially reasonable efforts to do and
perform all things required or necessary to be done to satisfy all conditions
precedent to the delivery of the Additional Shares.
SECTION 6. Representations and Warranties of the Company and
Xxxx. The Company and Xxxx Electronics Group, Inc., a Delaware corporation
("Xxxx"), jointly and severally represent and warrant to each Underwriter that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to the
Company's knowledge, threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material
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respects with the Exchange Act, (ii) each part of the Registration Statement,
when such part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act and (iv) the
Prospectus does not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (b) do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(c) Any term sheet and prospectus subject to completion
provided by the Company to the Underwriters for use in connection with the
offering and sale of the Shares pursuant to Rule 434 under the Act together are
not materially different from the prospectus included in the Registration
Statement (exclusive of any information deemed a part thereof pursuant to Rule
434(d)).
(d) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Act, and each registration statement
filed pursuant to Rule 462(b) under the Act, if any, complied when so filed in
all material respects with the Act, 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.
(e) Each of the Company and its Significant Subsidiaries
(as defined in Rule 405 under the Act) has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its jurisdiction
of incorporation and has the corporate power and authority to carry on its
business as it is currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(f) Except as otherwise disclosed in the Registration
Statement, there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued
by the Company or any of its subsidiaries relating to or entitling any person
to purchase or otherwise to acquire any shares of the capital stock of the
Company or any of its subsidiaries.
(g) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and,
except as otherwise set forth in the Prospectus and except as provided pursuant
to that certain Amended and Restated Credit Agreement, dated as of August 7,
1997,
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among the Company, Xxxx, The Chase Manhattan Bank, as Agent, and certain
lenders named therein, all of the outstanding capital stock of each Significant
Subsidiary (other than a subsidiary organized under the laws of the People's
Republic of China) are owned, directly or indirectly, by the Company, free and
clear of any security interest, claim, lien, encumbrance or adverse interest of
any nature.
(h) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid, non-
assessable and not subject to any preemptive or similar rights; and the
Additional Shares have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor as provided by this Agreement, will
be validly issued, fully paid and non-assessable, and the issuance of such
Additional Shares will not be subject to any preemptive or similar rights.
(i) The authorized capital stock of the Company,
including the Common Stock, conforms in all material respects as to legal
matters to the description thereof contained in the Prospectus.
(j) Neither the Company nor any of its Significant
Subsidiaries is in violation of its respective charter or by-laws or in default
in the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any other
agreement, indenture, mortgage, lease or instrument material to the conduct of
the business of the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, except where any such
violation or default would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(k) The execution, delivery and performance of this
Agreement, compliance by the Company and Xxxx with all the provisions hereof
and the consummation of the transactions contemplated hereby will not require
any consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except such as may be
required under the securities or Blue Sky laws of the various states) and will
not conflict with or constitute a breach of any of the terms or provisions of,
or a default under the charter or by-laws of the Company or any of its
subsidiaries or, except where a conflict or breach would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole, any
agreement, indenture or other instrument to which it or any of its subsidiaries
is a party or by which it or any of its subsidiaries or their respective
property is bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any of its
subsidiaries or their respective property.
(l) Except as otherwise set forth in the Prospectus,
there are no material legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any of their
respective property is the subject, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated. No contract or
document of a character
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required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement is not so described or
filed as required.
(m) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), nor
any federal or state law relating to discrimination in the hiring, promotion or
pay of employees nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the rules and regulations promulgated thereunder, which
in each case could reasonably be expected to result in any material adverse
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole.
(n) Each of the Company and its subsidiaries has such
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its respective
properties and to conduct its business except for such permits the absence of
which could not reasonably be expected to result in a material adverse effect
on the business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole; each of the Company and its
subsidiaries has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit;
and, except as described in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company or any of its
subsidiaries.
(o) Except as otherwise set forth in the Prospectus or
such as are not material to the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a whole,
each of the Company and its subsidiaries has good and indefeasible title to all
property and assets described in the Registration Statement as being owned by
it, free and clear of all liens, claims, encumbrances and restrictions except
liens for taxes not yet due and payable. All material leases to which the
Company or any of its subsidiaries is a party are valid and binding and no
default has occurred or is continuing thereunder which could reasonably be
expected to result in any material adverse change in the business, prospects,
financial condition or results of operation of the Company and its subsidiaries
taken as a whole, and the Company and its subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of them is a party as
lessee with such exceptions as do not materially interfere with the use made by
the Company or such subsidiary.
(p) Each of the Company and its subsidiaries maintains
reasonably adequate insurance.
(q) Xxxxxx Xxxxxxxx LLP is an independent public
accountant with respect to the Company and its subsidiaries as required by the
Act.
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(r) The financial statements, together with related
schedules and notes, forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly in all
material respects the consolidated financial position, results of operations
and cash flows of the Company and its subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) is, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the internal
records of the Company and its subsidiaries.
(s) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(t) No holder of any security of the Company has any
right to require registration of shares of Common Stock or any other security
of the Company other than rights which have been exercised or effectively
waived in connection with the offering of the Shares pursuant to this
Agreement.
(u) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
SECTION 7. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder represents and warrants to each
Underwriter that:
(a) Subject to the distribution by each of HM/Xxxx
Partners, L.P., HM/Connectors, L.P., HM/Xxxx/DB Partners, L.P., HM/Xxxx/TCL
Partners, L.P. and HM/Xxxx/FC Partners, L.P. of all of the shares of Common
Stock owned of record by each such entity prior to the Closing, such Selling
Stockholder shall be the lawful owner of the Firm Shares to be sold by such
Selling Stockholder pursuant to this Agreement, and on the Closing Date will
have good and clear title to all Firm Shares to be sold on any such date, free
of all restrictions on transfer, liens, encumbrances, security interests and
claims whatsoever.
(b) Upon delivery of and payment for such Firm Shares
pursuant to this Agreement, good and clear title to such Firm Shares will pass
to the Underwriters, free of all restrictions on transfer, liens, encumbrances,
security interests and claims whatsoever.
(c) Such Selling Stockholder has, and on the Closing Date
will have, full legal right, power and authority to enter into this Agreement
and to sell, assign, transfer and deliver the Firm Shares in the manner
provided herein. This Agreement has been duly authorized, executed and
delivered by such Selling Stockholder and is a valid and binding agreement of
such Selling Stockholder enforceable in accordance with its terms, except as
rights to indemnity and contribution
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hereunder may be limited by federal or state securities laws and except as the
enforceability hereof may be limited by bankruptcy, rehabilitation, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and by general principles of equity.
(d) Such Selling Stockholder has not taken, and will not
take, directly or indirectly, any action designed to, 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 Firm
Shares pursuant to the distribution contemplated by this Agreement, and other
than as permitted by the Act, such Selling Stockholder has not distributed and
will not distribute any prospectus or other offering material in connection
with the offering and sale of the Shares.
(e) The execution, delivery and performance of this
Agreement by such Selling Stockholder, compliance by such Selling Stockholder
with all the provisions hereof and the consummation of the transactions
contemplated hereby will not require any consent, approval, authorization or
other order of any court, regulatory body, administrative agency or other
governmental body (except such as may be required under the Act, state
securities laws or Blue Sky laws) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under, any
organizational documents of such Selling Stockholder, if applicable, or any
material agreement, indenture or other instrument to which any Selling
Stockholder is a party or by which such Selling Stockholder or property of such
Selling Stockholder is bound, or violate or conflict with any laws,
administrative regulation or ruling or court decree applicable to such Selling
Stockholder or property of such Selling Stockholder other than such violations
or conflicts which would not, individually or in the aggregate, have an adverse
effect on the transactions contemplated by this Agreement.
(f) The information in the Registration Statement under
the caption "Principal and Selling Stockholders," which specifically relates to
such Selling Stockholder does not, and will not on the Closing Date, 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
light of the circumstances under which they were made, not misleading.
(g) At any time during the period described in Section
5(e) hereof, if there is any change in the information referred to in Section
7(f) above, such Selling Stockholder will immediately notify you of such
change.
SECTION 8. Indemnification.
(a) The Company and Xxxx jointly and severally agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material
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fact required to be stated therein or necessary to make the statements therein
not misleading; provided that the Company and Xxxx shall not be liable in any
such case to the extent that any such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter
furnished in writing to the Company or Xxxx by or on behalf of any Underwriter
through you expressly for use therein; provided further that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter or any person controlling such Underwriter
from which the person asserting any such loss, claim, damage or liability
purchased Shares if a copy of the Prospectus (as amended or supplemented if the
Company or Xxxx shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of
such Shares to such person and the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities. The Company acknowledges and agrees that the only information
furnished by the Underwriters to the Company for inclusion in the Registration
Statement or the Prospectus consists of the information set forth in the last
paragraph of the front cover page of the Prospectus (insofar as such
information relates to the Underwriters), legends required by Item 502(d) of
Regulation S-K under the Act and the information in the third and fourteenth
paragraphs under the caption "Underwriting" in the Prospectus.
(b) Each Selling Stockholder agrees, severally and not
jointly, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such persons but only with reference to information
included in, or omissions from, the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus made in reliance upon and in conformity with written
information furnished to the Company or any Underwriter by such Selling
Stockholder, directly or through such Selling Stockholder's representatives.
Notwithstanding the foregoing, the aggregate liability of any Selling
Stockholder pursuant to this Section 8(b) shall be limited to an amount equal
to the total proceeds (before deducting expenses) received by such Selling
Stockholder from the Underwriters from the sale of the Firm Shares sold by such
Selling Stockholder hereunder.
(c) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, the Selling Stockholders, Xxxx,
their respective directors, the Company's officers who sign the Registration
Statement and any person controlling the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company, Xxxx and the Selling Stockholders to each
Underwriter but only with reference to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any preliminary
prospectus.
(d) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to this Section 8
(the "indemnified party"), the indemnified
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party shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses.
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the employment of such counsel shall have been specifically authorized in
writing by the indemnifying party, (ii) the indemnifying party shall have
failed to assume the defense and employ counsel or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnified party and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified
party). In any such case, the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for (i) the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all such
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, (ii)
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and all persons, if any, who control the Company within
the meaning of either such Section and (iii) the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and all such reasonable
fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation. In the case of any such separate firm for the
Company, Xxxx and their respective directors, officers and control persons,
such firm shall be designated in writing by the Company. In the case of any
such separate firm for the Selling Stockholders and such control persons of any
Selling Stockholders, such firm shall be designated in writing by their
attorney-in-fact named on the signature page of this Agreement. No
indemnifying party shall be liable for any settlement of any such action
effected without the written consent of the indemnifying party, but if settled
with the written consent of the indemnifying party, each indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement. Notwithstanding the
immediately preceding sentence, if in any case where the fees and expenses of
counsel are at the expense of the indemnifying party and an indemnified party
shall have requested the indemnifying party to reimburse the indemnified party
for such fees and expenses of counsel as incurred, such indemnifying party
agrees that it shall be liable for any settlement of any action effected
without its written consent if (i) such settlement is entered into more than 20
business days after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to reimburse the
indemnified party in accordance with such request for reimbursement (other than
the payment of amounts being disputed in good faith) prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or
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could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding and does not contain a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(e) In order to provide for just and equitable
contribution in circumstances in which the indemnity provided for in this
Section 8 is for any reason held to be wholly or partially unenforceable by an
indemnified party although applicable in accordance with its terms, each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments subject to
indemnification pursuant hereto (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Selling Stockholders
or Xxxx on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, the Selling Stockholders, Xxxx and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the Selling Stockholders, Xxxx and the Underwriters 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 and
the total underwriting discounts and commissions received by the Underwriters,
bear to the total price to the public of the Shares, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company, the Selling Stockholders, Xxxx and the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders, Xxxx
or the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders, Xxxx and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, 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 Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The
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Underwriters' obligations to contribute pursuant to this Section 8(e) are
several in proportion to the respective number of Shares purchased by each of
the Underwriters hereunder and not joint.
(f) Each Selling Stockholder hereby designates the
Company, 000 Xxxxx Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, as its authorized
agent, upon which process may be served in any action which may be instituted
in any state or federal court in the State of New York by any Underwriter, any
director or officer of any Underwriter or any person controlling any
Underwriter asserting a claim for indemnification or contribution under or
pursuant to this Section 8, and each Selling Stockholder will accept the
jurisdiction of such court in such action, and waives, to the fullest extent
permitted by applicable law, any defense based upon lack of personal
jurisdiction or venue. A copy of any such process shall be sent or given to
such Selling Stockholder, at the address for notices specified in Section 12
hereof.
SECTION 9. Conditions of the Underwriters' Obligations. The
several obligations of the Underwriters to purchase the Firm Shares and the
Additional Shares, if any, under this Agreement are subject to the satisfaction
or waiver of each of the following conditions:
(a) All the representations and warranties of the
Company, the Selling Stockholders and Xxxx contained in this Agreement shall be
true and correct on the Closing Date or the applicable Option Closing Date, as
the case may be, with the same force and effect as if made on and as of the
Closing Date or the applicable Option Closing Date, as the case may be.
(b) The Registration Statement shall have become
effective not later than 5:00 P.M. (and in the case of any registration
statement filed pursuant to Rule 462(b) under the Act, not later than 10:00
P.M.), New York City time, on the date of this Agreement or at such later date
and time as you may approve in writing, and at the Closing Date or the
applicable Option Closing Date, as the case may be, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet
included in the Registration Statement and the Prospectus, there shall not have
been any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in the
earnings, affairs or business prospects, whether or not arising in the ordinary
course of business, of the Company, (ii) since the date of the latest balance
sheet included in the Registration Statement and the Prospectus there shall not
have been any change, or any development involving a prospective material
adverse change, in the capital stock or in the long-term debt of the Company
from that set forth in the Registration Statement and Prospectus, (iii) the
Company and its subsidiaries shall have no liability or obligation, direct or
contingent, which is material to the Company and its subsidiaries, taken as a
whole, other than those reflected in the Registration Statement and the
Prospectus, (iv) on the Closing Date or the applicable Option Closing Date, as
the case may be, you shall have received a certificate dated the Closing Date,
signed by Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx, in their respective
capacities as the President and Chief Operating Officer and Senior Vice
President and Chief Financial Officer of the Company, confirming the
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matters set forth in paragraphs (a), (b) and (c) of this Section 9 and (v) on
the Closing Date, you shall have received a certificate dated the Closing Date
signed by the Company as the attorney-in-fact for the Selling Stockholders (the
"Attorney-in-Fact") in its capacity as such Attorney-in-Fact, confirming that
the representations and warranties of the Selling Stockholders contained in
this Agreement are true and correct as if made on and as of the Closing Date.
(d) You shall have received on the Closing Date or the
applicable Option Closing Date, as the case may be, an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date or the applicable
Option Closing Date, as the case may be, of Weil, Gotshal & Xxxxxx LLP, counsel
for the Company and the Selling Stockholders, in the form attached hereto as
Annex II.
(e) You shall have received on the Closing Date or the
applicable Option Closing Date, as the case may be, an opinion (satisfactory to
you and counsel for the Underwriters), dated the Closing Date, of W. Xxxxxx
XxXxxx, Esq., Secretary and General Counsel of the Company, in the form
attached hereto as Annex III.
The opinions of Weil, Gotshal & Xxxxxx LLP and W. Xxxxxx XxXxxx, Esq.
that are described in Annexes II and III shall be rendered to you at the
request of the Company, the Selling Stockholders and Xxxx, and shall so state
therein.
(f) You shall have received on the Closing Date or the
applicable Option Closing Date an opinion, dated the Closing Date or the
applicable Option Closing Date, as the case may be, of Xxxxxx & Xxxxxx L.L.P.,
counsel for the Underwriters, as to the matters referred to in clauses (3)
(except with respect to preemptive rights), (4) and (11) (but only with respect
to the statements under the caption "Description of Capital Stock") of Annex
II. Such counsel shall further state that no facts have come to the attention
of such counsel which lead such counsel to believe that the Registration
Statement, on the effective date thereof, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, on the date thereof or on the date of such opinion, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that such counsel shall express no view with respect to the
financial statements and related notes, the financial statement schedules and
the other financial and accounting data included in the Registration Statement
or Prospectus). In making such statement, such counsel may state that their
beliefs are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified.
(g) You shall have received a letter on and as of the
Closing Date or the applicable Option Closing Date, as the case may be, in form
and substance satisfactory to you, from Xxxxxx Xxxxxxxx LLP, independent public
accountants, with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
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Statement and the Prospectus and substantially in the form and substance of the
letter delivered to you by Xxxxxx Xxxxxxxx LLP on the date of this Agreement.
(h) The Company shall have delivered to you the
agreements specified in the last paragraph of Section 2 hereof.
(i) The Company, Xxxx and the Selling Stockholders, as
applicable, shall not have failed at or prior to the Closing Date or the
applicable Option Closing Date, as the case may be, to perform or comply with
any of the agreements herein contained and required to be performed or complied
with by the Company or the Selling Stockholders at or prior to the Closing
Date.
The several obligations of the U.S. Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to the U.S. Representatives on the
applicable Option Closing Date of such additional documents as you may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of such Additional Shares and other matters related
to the issuance of such Additional Shares.
SECTION 10. Effective Date of Agreement and Termination. This
Agreement shall become effective upon the later of (i) execution of this
Agreement and (ii) when oral notification of the effectiveness of the
Registration Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or
development involving a prospective material adverse change in the condition,
financial or otherwise, of the Company or any of its subsidiaries or the
earnings, affairs, or business prospects of the Company or any of its
subsidiaries, whether or not arising in the ordinary course of business, which
would, in your judgment, make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and adverse and would,
in your judgment, make it impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ Stock Market or limitation on prices for
securities on any such exchange or National Market System, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects, or will materially and adversely
affect, the business or operations of the Company and its subsidiaries, taken
as a whole, (v) the declaration of a banking moratorium by either federal or
New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal
affairs which in your opinion has a material adverse effect on the financial
markets in the United States.
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If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares or Additional Shares, as the case may be, which any Underwriter has
agreed to purchase pursuant to Section 2 hereof be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If on the Closing Date or on an Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares, or Additional Shares, as the case may be, and the aggregate number of
Firm Shares or Additional Shares, as the case may be, with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date by all Underwriters and arrangements satisfactory to
you and the Company and the Selling Stockholders for purchase of such Shares
are not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders. In any such case which does not result in
termination of this Agreement, any of you, the Company or the Selling
Stockholders shall have the right to postpone the Closing Date or the
applicable Option Closing Date, as the case may be, but in no event for longer
than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
SECTION 11. Agreements of the Selling Stockholders. Each Selling
Stockholder, severally but not jointly, agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes with
respect to the Firm Shares to be sold by such Selling Stockholder;
(b) To use their commercially reasonable efforts to do
and perform all things required or necessary to be done to satisfy all
conditions precedent to the delivery of the Firm Shares; and
(c) That the Attorney-in-Fact may make any and all
amendments to this Agreement as the Attorney-in-Fact deems necessary or
advisable.
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SECTION 12. Miscellaneous. Notices given pursuant to any
provision of this Agreement shall be addressed as follows: (a) if to the
Company or the Selling Stockholders, to Xxxx Electronics Corp., 000 Xxxxx
Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx and (b)
if to any Underwriter or to you, to you c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders, Xxxx,
any of their respective officers and directors, and of the several Underwriters
set forth in or made pursuant to this Agreement shall remain operative and in
full force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or by or on behalf of the Company or
the Selling Stockholders, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Shares and payment
for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company, the Selling Stockholders or
Xxxx to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company agrees to reimburse the several Underwriters for all
out-of-pocket expenses (including the fees and disbursements of counsel)
reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, Xxxx, the Underwriters, any controlling persons referred to
herein and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Shares from any of the several
Underwriters merely because of such purchase.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company, Xxxx, the Selling Stockholders and the Underwriters.
Very truly yours,
XXXX ELECTRONICS CORP.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
XXXX ELECTRONICS GROUP, INC.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
THE SELLING STOCKHOLDERS NAMED IN SCHEDULE III
HERETO, ACTING SEVERALLY
By: XXXX ELECTRONICS CORP., Acting as
Attorney-in-fact for such Selling
Stockholders
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
22
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
Acting severally on behalf of themselves
and the several U.S. Underwriters named
in Schedule I hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
XXXXXXXXX, LUFKIN & XXXXXXXX INTERNATIONAL
BEAR, XXXXXXX INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
Acting severally on behalf of themselves and
the several International Managers named
in Schedule II hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX INTERNATIONAL
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
23
SCHEDULE I
NUMBER OF SHARES
TO BE PURCHASED
---------------------------
U.S. UNDERWRITERS
-----------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation . . . . . . . . . . . . .
Bear, Xxxxxxx & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . .
Credit Suisse First Boston Corporation . . . . . . . . . . . . . . . . . . .
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated . . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
=============
24
SCHEDULE II
Number of Shares
to be Purchased
---------------------------
INTERNATIONAL MANAGERS
----------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx International . . . . . . . . . . . . . . . . .
Bear, Xxxxxxx International Limited . . . . . . . . . . . . . . . . . . . . .
Credit Suisse First Boston (Europe) Limited . . . . . . . . . . . . . . . . .
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx International . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. International Limited . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
=============
25
SCHEDULE III
Number of Shares
to be Sold
---------------------------
SELLING STOCKHOLDERS
--------------------
Xxxxx X. Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx X. Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CES Management Group, Inc. . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx and Xxxx Xxxxxxxxxxx Family Foundation . . . . . . . . . . . . . . .
CIGNA Property & Casualty Insurance Co. . . . . . . . . . . . . . . . . . . .
Electronic Data Systems Corp. . . . . . . . . . . . . . . . . . . . . . . . .
X.X. Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxxxx X. Xxxx Xx. Trust Estate . . . . . . . . . . . . . . . . . . . . .
Xxxxxxxx Xxxx Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx Xxxx Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxx Xxxx -- Xxxxxxxx Trusts (Xx X. Xxxx, Xx.) . . . . . . . . . . . . . . .
Xxxxx Xxxx Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lone Star Liquidating Trust . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxx Xxxx -- Xxxxx Trusts . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxx Financial Group, LLC . . . . . . . . . . . . . . . . . . . . . . . . . .
Insurance Company of North America . . . . . . . . . . . . . . . . . . . . .
Lily Holding Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx Venture Partners II, L.P. . . . . . . . . . . . . . . . . . . . . . .
National Fidelity Life Insurance Company . . . . . . . . . . . . . . . . . .
Schusterman/HM Investments . . . . . . . . . . . . . . . . . . . . . . . . .
SGW Investments (U.S.A.), Inc. . . . . . . . . . . . . . . . . . . . . . . .
Swiss American Corporation . . . . . . . . . . . . . . . . . . . . . . . . .
The Combined Master Retirement Trust . . . . . . . . . . . . . . . . . . . .
The Long-Term Credit Bank of Japan, Ltd. . . . . . . . . . . . . . . . . . .
The Ohio National Life Insurance Co. . . . . . . . . . . . . . . . . . . . .
The Prudential Insurance Company of America . . . . . . . . . . . . . . . . .
Transpac Ventures 1, Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . .
Wand/HMC Investments L.P. . . . . . . . . . . . . . . . . . . . . . . . . . .
Wabash Life Insurance Company . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx Xxxxxxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
ANNEX I
REQUIRED STOCKHOLDER LOCK-UPS
American Airlines Fixed Benefit Plans
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
General Electric Capital Corporation
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
XX/Xxxx/DB Partners, L.P.
HM/Xxxx/FC Partners, L.P.
HM/Connectors, L.P.
HM/Xxxx/TCL Partners, L.P.
HM/Xxxx Partners, L.P.
W. Xxxxxx XxXxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxx
Xxxxxxx X. Xxxx
The Xxxxxxx X. Xxxx 1992 Trust
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
27
ANNEX II
OPINION OF WEIL, GOTSHAL & XXXXXX LLP
[TO BE ATTACHED.]
II-1
28
ANNEX III
OPINION OF W. XXXXXX XXXXXX
[TO BE ATTACHED.]
III-1
