EXHIBIT 1.1
5,000,000 Shares of Common Stock
ASSET ACCEPTANCE CAPITAL CORP.
UNDERWRITING AGREEMENT
-, 2005
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & COMPANY, L.L.C.
CIBC WORLD MARKETS CORP.
SUNTRUST CAPITAL MARKETS, INC.
As Representatives of the
several Underwriters named in
Schedule II attached hereto (the "Representatives")
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
The persons named in Schedule I hereto (the "Selling
Stockholders"), propose, subject to the terms and conditions stated herein, to
sell to the several underwriters named in Schedule II hereto (the
"Underwriters"), 5,000,000 shares of Common Stock, par value $0.01 per share
("Common Stock") (the "Firm Shares") of Asset Acceptance Capital Corp., a
corporation organized and existing under the laws of Delaware (the "Company")
and, for the sole purpose of covering over-allotments in connection with the
sale of the Firm Shares, at the option of the Underwriters, those Selling
Stockholders identified on Schedule I hereto as having an obligation to sell
Additional Shares propose to sell up to an additional 750,000 shares of Common
Stock (the "Additional Shares"). The Firm Shares and any Additional Shares
purchased by the Underwriters are referred to herein as the "Shares". The Shares
are more fully described in the Registration Statement and Prospectus referred
to below. Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") is acting as lead manager
(the "Lead Manager") in connection with the offering and sale of the Shares
contemplated herein (the "Offering"). Reference is hereby made to that certain
Amended and Restated Registration Rights Agreement (filed as Exhibit 10.3 to the
Company's Registration Statement on Form S-1 (File no. 333-109987) declared
effective February 4, 2004, the "Registration Rights Agreement"), which
obligates the Company to file the Registration Statement (as hereinafter
defined) covering the sale of the shares and which sets forth additional rights
and obligations between and among the Company and the Selling Stockholders.
1. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with, each
of the Underwriters as of the date hereof, the Closing Date and any Additional
Closing Date, that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-1
(Registration No. 333-123178), and amendments thereto, and related preliminary
prospectuses for the registration under the Securities Act of 1933, as amended
(the "Securities Act"), of the Shares, which registration statement, as so
amended, has been declared effective by the Commission and copies of which have
heretofore been delivered to the Underwriters. The registration statement, as
amended at the time it became effective, including the prospectus, financial
statements, schedules, exhibits and other information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule 430A
or 434(d) under the Securities Act, is hereinafter referred to as the
"Registration Statement." If the Company has filed or is required pursuant to
the terms hereof to file a registration statement pursuant to Rule 462(b) under
the Securities Act registering additional shares of Common Stock (a "Rule 462(b)
Registration Statement"), then, unless otherwise specified, any reference herein
to the term "Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement, which,
if filed, becomes effective upon filing, no other document with respect to the
Registration Statement has heretofore been filed with the Commission. All of the
Shares have been registered under the Securities Act pursuant to the
Registration Statement or, if any Rule 462(b) Registration Statement is filed,
will be duly registered under the Securities Act with the filing of such Rule
462(b) Registration Statement. No stop order suspending the effectiveness of
either the Registration Statement or the Rule 462(b) Registration Statement, if
any, has been issued, and the Company is not aware of the initiation of any
proceeding for that purpose, or to the Company's knowledge no proceeding for
that purpose is threatened by the Commission. The Company, if required by the
Securities Act and the rules and regulations of the Commission (the "Rules and
Regulations"), proposes to file the Prospectus with the Commission pursuant to
Rule 424(b) under the Securities Act ("Rule 424(b)"). The prospectus, in the
form in which it is to be filed with the Commission pursuant to Rule 424(b), or,
if the prospectus is not to be filed with the Commission pursuant to Rule
424(b), the prospectus in the form included as part of the Registration
Statement at the time the Registration Statement became effective, is
hereinafter referred to as the "Prospectus," except that if any revised
prospectus or prospectus supplement shall be provided to the Underwriters by the
Company for use in connection with the Offering which differs from the
Prospectus (whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b)), the term
"Prospectus" shall also refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided to
the Underwriters for such use. Any preliminary prospectus or prospectus subject
to completion included in the Registration Statement or filed with the
Commission pursuant to Rule 424 under the Securities Act is hereafter called a
"Preliminary Prospectus." All references in this Agreement to the Registration
Statement, the Rule 462(b) Registration Statement, a Preliminary Prospectus and
the Prospectus, or any amendments or supplements to any of the foregoing shall
be deemed to include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
(b) At the time of the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement or the
effectiveness of any post-effective amendment to the Registration Statement,
when the Prospectus is first filed with the Commission pursuant to Rule 424(b)
or Rule 434 under the Securities Act ("Rule 434"), when any supplement to or
amendment of the Prospectus is filed with the Commission and at the Closing Date
and the Additional Closing Date, if any (as hereinafter respectively defined),
the Registration Statement
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and the Prospectus and any amendments thereof and supplements thereto complied
or will comply in all material respects with the applicable provisions of the
Securities Act and the Rules and Regulations and did not and will not contain an
untrue statement of a material fact and did not and will not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein (i) in the case of the Registration Statement, not misleading
and (ii) in the case of the Prospectus or any related Preliminary Prospectus in
light of the circumstances under which they were made, not misleading. When any
Preliminary Prospectus was first filed with the Commission (whether filed as
part of the registration statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) under the Securities Act) and when
any amendment thereof or supplement thereto was first filed with the Commission,
such Preliminary Prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the
Securities Act and the Rules and Regulations and did not contain an untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related Preliminary Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Lead Manager specifically for use therein. The
parties acknowledge and agree that such information provided by or on behalf of
any Underwriter consists solely of the material included in the table under the
first paragraph under the caption "Underwriting" in the Prospectus, the first
paragraph under the subcaption "Commissions and Discounts" and the table under
the second paragraph under that subcaption, the first two paragraphs under the
subcaption "Price Stabilization, Short Positions," and the first paragraph under
the subcaption "Passive Market Making."
(c) Ernst & Young LLP, who have certified the
financial statements and supporting schedules and information of the Company and
its subsidiaries that are included in the Registration Statement, is an
independent registered public accounting firm as required by the Securities Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
Rules and Regulations.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
disclosed in the Registration Statement and the Prospectus, the Company has not
declared, paid or made any dividends or other distributions of any kind on or in
respect of its capital stock and there has been no material adverse change or
any development which would have a prospective material adverse change, whether
or not arising from transactions in the ordinary course of business, in or
affecting (i) the business, condition (financial or otherwise), results of
operations, stockholders' equity or properties of the Company and each
subsidiary of the Company listed on Exhibit A hereto (the "Subsidiaries"),
individually or taken as a whole; (ii) the long-term debt or capital stock of
the Company or any of its Subsidiaries; or (iii) the Offering or consummation of
any of the other transactions contemplated by this Agreement, the Registration
Statement or the Prospectus (a "Material Adverse Change"). Since the date of the
latest balance sheet presented in the Registration Statement and the Prospectus,
neither the Company nor any Subsidiary has incurred or undertaken any
liabilities or obligations, whether direct or indirect, liquidated or
contingent, matured or unmatured, or entered into any transactions, including
any acquisition or disposition
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of any business or asset, which are material to the Company and the Subsidiaries
individually or taken as a whole, except for liabilities, obligations and
transactions which are disclosed in the Registration Statement and the
Prospectus.
(e) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus in the column headed
"Actual" under the caption "Capitalization" and, after giving effect to the
Offering, and the other transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, will be as set forth in the column
headed "As Adjusted" under the caption "Capitalization". All of the issued and
outstanding shares of capital stock of the Company, including the Shares, are
fully paid and non-assessable and have been duly and validly authorized and
issued, in compliance with all applicable state, federal and foreign securities
laws and not in violation of or subject to any preemptive or similar right that
does or will entitle any person, upon the issuance or sale of any security, to
acquire from the Company or any Subsidiary any Common Stock or other security of
the Company or any Subsidiary or any security convertible into, or exercisable
or exchangeable for, Common Stock or any other such security (any "Relevant
Security"), except for such rights as may have been fully satisfied or waived
prior to the effectiveness of the Registration Statement or except as described
in the Registration Statement and the Prospectus.
(f) The Common Stock and the Shares conform to the
descriptions thereof contained in the Registration Statement and the Prospectus.
Except as disclosed in the Registration Statement and the Prospectus, no
options, warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company are
outstanding.
(g) The Subsidiaries are the only subsidiaries of the
Company within the meaning of Rule 405 under the Securities Act. Except for the
Subsidiaries, the Company holds no ownership or other interest, nominal or
beneficial, direct or indirect, in any corporation, partnership, joint venture
or other business entity. All of the issued shares of capital stock of or other
ownership interests in each Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable and are owned directly or
indirectly by the Company free and clear of any lien, charge, mortgage, pledge,
security interest, claim, equity, trust or other encumbrance, preferential
arrangement, defect or restriction of any kind whatsoever (any "Lien"), other
than Liens in connection with the Company's line of credit as described in the
Prospectus.
(h) Each of the Company and the Subsidiaries has been
duly organized and validly exists as a corporation, partnership or limited
liability company in good standing under the laws of its jurisdiction of
organization. Each of the Company and the Subsidiaries has all requisite power
and authority to carry on its business as it is currently being conducted and as
described in the Prospectus, and to own, lease and operate its respective
properties. Each of the Company and the Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation, partnership or
limited liability company in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which (individually and in the aggregate)
would not have a material adverse effect on (i) the business, condition
(financial or otherwise), results of operations, stockholders' equity,
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properties or prospects of the Company and the Subsidiaries, individually or
taken as a whole; (ii) the long-term debt or capital stock of the Company or any
Subsidiary; or (iii) the Offering or consummation of any of the other
transactions contemplated by this Agreement, the Registration Statement or the
Prospectus (any such effect being a "Material Adverse Effect").
(i) Each of the Company and the Subsidiaries has all
necessary consents, approvals, authorizations, orders, registrations,
qualifications, licenses, filings and permits of, with and from all judicial,
regulatory and other legal or governmental agencies and bodies and all third
parties, foreign and domestic (collectively, the "Consents"), to own, lease and
operate its properties and conduct its business as it is now being conducted and
as disclosed in the Registration Statement and the Prospectus, and each such
Consent is valid and in full force and effect, and neither the Company nor any
Subsidiary has received notice of any investigation or proceedings which results
in or, if decided adversely to the Company or any Subsidiary, would result in,
the revocation of, or imposition of a materially burdensome restriction on, any
Consent. Each of the Company and the Subsidiaries is in compliance with all
applicable laws, rules, regulations, ordinances, directives, judgments, decrees
and orders, foreign and domestic, except where failure to be in compliance would
not have a Material Adverse Effect.
(j) The Company has full right, power and authority
to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus. This Agreement and the transactions contemplated
by this Agreement, the Registration Statement and the Prospectus, have been duly
and validly authorized by the Company. This Agreement has been duly and validly
executed and delivered by the Company.
(k) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus do not and will not (i)
conflict with, require consent under or result in a breach of any of the terms
and provisions of, or constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) under, or result in the
creation or imposition of any Lien upon any property or assets of the Company or
any Subsidiary pursuant to any indenture, mortgage, deed of trust, loan
agreement or other agreement, instrument, franchise, license or permit to which
the Company or any Subsidiary is a party or by which the Company or any
Subsidiary or their respective properties, operations or assets may be bound,
(ii) violate or conflict with any provision of the certificate or articles of
incorporation, by-laws, certificate of formation, limited liability company
agreement, partnership agreement or other organizational documents of the
Company or any Subsidiary, or (iii) violate or conflict with any law, rule,
regulation, ordinance, directive, judgment, decree or order of any judicial,
regulatory or other legal or governmental agency or body, domestic or foreign,
except (in the case of clauses (i) and (iii) above) as would not have a Material
Adverse Effect.
(l) No Consent of, with or from any judicial,
regulatory or other legal or governmental agency or body or any third party,
foreign or domestic, is required for the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated by this
Agreement, the Registration Statement, and the Prospectus, including the
issuance, sale and delivery of the Shares to be issued, sold and delivered
hereunder, except the registration under the Securities Act of the Shares, which
has become effective, and such Consents as may be required under state
securities or blue sky laws or the by-laws and rules of
5
the National Association of Securities Dealers, Inc. (the "NASD") or NASD
Regulation, Inc. ("NASDR") in connection with the purchase and distribution of
the Shares by the Underwriters, each of which has been obtained and is in full
force and effect.
(m) The Company and its Subsidiaries are in
compliance in all material respects with all applicable federal, state and local
laws and regulations applicable to them, including, without limitation, the Fair
Debt Collection Practices Act, the Truth-In-Lending Act, the Fair Credit Billing
Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the
Electronic Funds Transfer Act, the Xxxxx-Xxxxx-Xxxxxx Act, and comparable
statutes in states where debtors reside, and the respective rules and
regulations thereunder, the failure to comply with which would have a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to
any agreement or memorandum of understanding with, or a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by, or
is a recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions at the request of any regulatory authority which restricts
materially the conduct of its business, nor has the Company or any of its
Subsidiaries been advised by any of the regulatory authorities that it is
contemplating issuing or requesting (or considering the appropriateness of
issuing or requesting) any of the foregoing.
(n) Except as disclosed in the Registration Statement
and the Prospectus, there is no judicial, regulatory, arbitral or other legal or
governmental proceeding or other litigation or arbitration, domestic or foreign,
pending to which the Company or any Subsidiary is a party or of which any
property, operations or assets of the Company or any Subsidiary is the subject
which, individually or in the aggregate, if determined adversely to the Company
or any Subsidiary, would have a Material Adverse Effect. To the Company's
knowledge, no such proceeding, litigation or arbitration is threatened or
contemplated.
(o) The financial statements and pro forma data,
including the notes thereto, and the supporting schedules included in the
Registration Statement and the Prospectus present fairly in all material
respects the financial position as of the dates indicated and the cash flows and
results of operations for the periods specified of the Company and its
consolidated subsidiaries. Except as otherwise stated in the Registration
Statement and the Prospectus, said financial statements have been prepared in
conformity with United States generally accepted accounting principles applied
on a consistent basis throughout the periods involved. The supporting schedules
included in the Registration Statement and the Prospectus present fairly in all
material respects the information required to be stated therein. No other
financial statements or supporting schedules are required to be included in the
Registration Statement pursuant to the Securities Act and the Rules and
Regulations. The other financial and statistical information included in the
Registration Statement and the Prospectus present fairly the information
included therein and have been prepared on a basis consistent with that of the
financial statements that are included in the Registration Statement and the
Prospectus and the books and records of the respective entities presented
therein.
(p) There are no pro forma or as adjusted financial
statements which are required to be included in the Registration Statement and
the Prospectus in accordance with Regulation S-X which have not been included as
so required. The pro forma financial information included in the Registration
Statement and the Prospectus has been properly compiled and prepared in
accordance with the applicable requirements of the Securities Act and
6
the Rules and Regulations and includes all adjustments and reconciliations
necessary to present fairly in accordance with United States generally accepted
accounting principles the pro forma and as adjusted financial position of the
respective entity or entities presented therein at the respective dates
indicated and their cash flows and the results of operations for the respective
periods specified.
(q) The assumptions used in preparing the pro forma
financial information included in the Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein. The related
adjustments made in the preparation of such pro forma financial information give
appropriate effect to those assumptions. Such pro forma financial information
reflect the proper application of those adjustments to the corresponding
historical financial statement amounts.
(r) The statistical, industry-related and
market-related data included in the Registration Statement and the Prospectus
are based on or derived from sources which the Company reasonably and in good
faith believes are reliable and accurate, and such data agree with the sources
from which they are derived.
(s) The Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act and files reports with
the Commission on the XXXXX System. The Common Stock is registered pursuant to
Section 12(g) of the Exchange Act and the outstanding shares of Common Stock
(including the Shares) have been approved for quotation on the Nasdaq (as
defined herein). The Company has taken no action designed to terminate, or
likely to have the effect of terminating, the quotation of the Shares on Nasdaq,
nor has the Company received any notification that the Nasdaq is contemplating
terminating such quotation.
(t) The Company and the Subsidiaries maintain a
system of internal accounting and other controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
United States generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accounting for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(u) Neither the Company nor any of its affiliates
(within the meaning of Rule 144 under the Securities Act) has taken, directly or
indirectly, any action which constitutes or is designed to cause or result in,
or which would constitute, cause or result in, the stabilization or manipulation
of the price of any security to facilitate the sale or resale of the Shares.
(v) Neither Company nor any of its affiliates has,
prior to the date hereof, made any offer or sale of any securities, which could
be "integrated" for purposes of the Securities Act or the Rules and Regulations
with the offer and sale of the Shares pursuant to the Registration Statement.
Except as disclosed in the Registration Statement and the Prospectus, neither
Company nor any of its affiliates has sold or issued any Relevant Security
during the six-month period preceding the date of the Prospectus, including but
not limited to any sales
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pursuant to Rule 144A or Regulation D or S under the Securities Act, other than
shares of Common Stock issued pursuant to employee benefit plans, qualified
stock option or incentive plans or the employee compensation plans, pursuant to
outstanding options, rights or warrants as described in the Registration
Statement and the Prospectus or pursuant to currently existing 10b5-1 trading
plans as described in the Registration Statement and the Prospectus.
(w) Except as disclosed in the Registration Statement
and the Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise in
connection with, the offer and sale of the Shares contemplated hereby, and any
such rights so disclosed have either been fully complied with by the Company or
effectively waived by the holders thereof, and any such waivers remain in full
force and effect.
(x) The Company and each of the Subsidiaries is not
and, at all times up to and including consummation of the transactions
contemplated by this Agreement, the Registration Statement and the Prospectus,
and after giving effect to application of the net proceeds of the Offering, will
not be, subject to registration as an "investment company" under the Investment
Company Act of 1940, as amended, and is not and will not be an entity
"controlled" by an "investment company" within the meaning of such act.
(y) There are no contracts or other documents
(including, without limitation, any voting agreement), which are required to be
described in the Registration Statement and the Prospectus or filed as exhibits
to the Registration Statement by the Securities Act or the Rules and Regulations
and which have not been so described or filed.
(z) No relationship, direct or indirect, exists
between or among any of the Company or any affiliate of the Company, on the one
hand, and any director, officer, stockholder, customer or supplier of the
Company or any affiliate of the Company, on the other hand, which is required by
the Securities Act or the Rules and Regulations to be described in the
Registration Statement or the Prospectus which is not so described and described
as required. There are no outstanding loans, advances (except normal advances
for business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the officers or
directors of the Company or any of their respective family members, except as
disclosed in the Registration Statement and the Prospectus. The Company has not,
in violation of the Xxxxxxxx-Xxxxx Act (the "S-O Act"), directly or indirectly,
including through a Subsidiary, extended or maintained credit, arranged for the
extension of credit, or renewed an extension of credit, in the form of a
personal loan to or for any director or executive officer of the Company.
(aa) The Company and the Subsidiaries are in
compliance with all the applicable provisions of the S-O Act that are currently
in effect and require compliance on or before the date hereof. On the Closing
Date and any Additional Closing Date, as applicable, the Company and the
Subsidiaries will be in compliance with all applicable provisions of the S-O Act
that require compliance on or before such date. The Company and the Subsidiaries
are taking active steps to ensure that they will be in compliance with all
applicable provisions of the S-O Act that are not currently in effect upon and
at all times after the required compliance dates set forth in any such
provisions.
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(bb) Except for this Agreement and except as
disclosed in the Registration Statement and the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company, any Subsidiary, the
Selling Stockholder or any Underwriter for a brokerage commission, finder's fee
or other like payment in connection with the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus or, to the Company's
knowledge, any arrangements, agreements, understandings, payments or issuance
with respect to the Company or any of its officers, directors, shareholders,
partners, employees, Subsidiaries or affiliates that may affect the
Underwriters' compensation as determined by the NASD.
(cc) The Company and each Subsidiary own or lease all
such properties as are necessary to the conduct of its business as presently
operated and as proposed to be operated as described in the Registration
Statement and the Prospectus. The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of all
Liens except such as are described in the Registration Statement and the
Prospectus or such as do not (individually or in the aggregate) materially
affect the value of such property or interfere with the use made or proposed to
be made of such property by the Company and the Subsidiaries. Any real property
and buildings held under lease or sublease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material to, and do not interfere with, the use made and
proposed to be made of such property and buildings by the Company and the
Subsidiaries. Neither the Company nor any Subsidiary has received any written
notice of any claim adverse to its ownership of any real or personal property or
of any claim against the continued possession of any real property, whether
owned or held under lease or sublease by the Company or any Subsidiary.
(dd) The Company and each Subsidiary (i) to the best
of the Company's knowledge, own or possess adequate right to use all patents,
patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses, formulae,
customer lists, and know-how and other intellectual property (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures, "Intellectual Property") necessary for the
conduct of their respective businesses as being conducted and as described in
the Registration Statement and Prospectus, and (ii) have no reason to believe
that the conduct of their respective businesses does or will conflict with, and
have not received any written notice of any claim of conflict with, any such
right of others. Neither the Company nor any Subsidiary has granted or assigned
to any other person or entity any right to manufacture, have manufactured,
assemble or sell the current products and services of the Company and its
Subsidiaries or those products and services described in the Registration
Statement and Prospectus. To the Company's knowledge, there is no infringement
by third parties of any such Intellectual Property, and the Company is unaware
of any facts which would form a reasonable basis for any such claim. There is no
pending or, to the Company's knowledge, threatened action, suit, proceeding or
claim by others challenging the Company's or any Subsidiary's rights in or to
any such Intellectual Property. There is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others that the
Company or any Subsidiary infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others.
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(ee) The Company and the Subsidiaries maintain
insurance in such amounts and covering such risks as the Company reasonably
considers adequate for the conduct of its business and the value of its
properties and as is customary for companies engaged in similar businesses in
similar industries, all of which insurance is in full force and effect, except
where the failure to maintain such insurance would not have a Material Adverse
Effect. There are no material claims by the Company or any Subsidiary under any
such policy or instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause. The Company reasonably
believes that it will be able to renew its existing insurance as and when such
coverage expires or will be able to obtain replacement insurance adequate for
the conduct of the business and the value of its properties at a cost that would
not have a Material Adverse Effect.
(ff) The Company has in effect insurance covering the
Company and its directors and officers for liabilities or losses arising in
connection with this Offering, including, without limitation, liabilities or
losses arising under the Securities Act, the Exchange Act, the Rules and
Regulations and applicable foreign securities laws.
(gg) Each of the Company and the Subsidiaries has
accurately prepared and timely filed all federal, state, foreign and other tax
returns that are required to be filed by it and has paid or made provision for
the payment of all taxes, assessments, governmental or other similar charges,
including without limitation, all sales and use taxes and all taxes which the
Company or any Subsidiary is obligated to withhold from amounts owing to
employees, creditors and third parties, with respect to the periods covered by
such tax returns (whether or not such amounts are shown as due on any tax
return). No deficiency assessment with respect to a proposed adjustment of the
Company's or any Subsidiary' federal, state, local or foreign taxes is pending
or, to the Company's knowledge, threatened. The accruals and reserves on the
books and records of the Company and the Subsidiaries in respect of tax
liabilities for any taxable period not finally determined are adequate to meet
any assessments and related liabilities for any such period and, since December
31, 2003, the Company and the Subsidiaries have not incurred any liability for
taxes other than in the ordinary course of its business except as described in
the Registration Statement and the Prospectus. There is no tax lien, whether
imposed by any federal, state, foreign or other taxing authority, outstanding
against the assets, properties or business of the Company or any Subsidiary,
except for liens for taxes which are not yet due and payable.
(hh) No labor disturbance by the employees of the
Company or any Subsidiary exists or, to the Company's knowledge, is imminent and
the Company is not aware of any existing or imminent labor disturbances by the
employees of any of its or any Subsidiary's principal suppliers, manufacturers',
customers or contractors, which, in the case of any of the foregoing
(individually or in the aggregate), would have a Material Adverse Effect.
(ii) No "prohibited transaction" (as defined in
either Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder
("ERISA") or Section 4975 of the Internal Revenue Code of 1986, as amended from
time to time (the "Code")), "accumulated funding deficiency" (as defined in
Section 302 of ERISA) or other event of the kind described in Section 4043(b) of
ERISA (other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to any
employee benefit plan for
10
which the Company or any Subsidiary would have any liability. Each employee
benefit plan for which the Company or any Subsidiary would have any liability is
in compliance in all material respects with applicable law, including (without
limitation) ERISA and the Code; the Company has not incurred and does not expect
to incur liability under Title IV of ERISA with respect to the termination of,
or withdrawal from any "pension plan." Each plan for which the Company would
have any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such qualification.
(jj) There has been no storage, generation,
transportation, handling, treatment, disposal, discharge, emission or other
release of any kind of toxic or other wastes or other hazardous substances by,
due to, or caused by the Company or any Subsidiary (or, to the Company's
knowledge, any other entity for whose acts or omissions the Company is or may be
liable) upon any other property now or previously owned or leased by the Company
or any Subsidiary, or upon any other property, which would be a violation of or
give rise to any liability under any applicable law, rule, regulation, order,
judgment, decree or permit relating to pollution or protection of human health
and the environment ("Environmental Law"). To the Company's knowledge, there has
been no disposal discharge, emission or other release of any kind onto such
property or into the environment surrounding such property of any toxic or other
wastes or other hazardous substances other than in compliance with applicable
laws and regulations, other than with respect to the Company's facility at 00000
Xxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx, for which the Company is indemnified by the
landlord of such facility from any and all claims, causes of action,
liabilities, damages, costs and expenses arising from the location of any
environmental contamination to or from the leased premises or the violation of
any environmental laws existing prior to the commencement of the lease for such
facility. Neither the Company nor any Subsidiary has agreed to assume, undertake
or provide indemnification for any liability of any other person under any
Environmental Law, including any obligation for cleanup or remedial action.
There is no pending or, to the Company's knowledge, threatened administrative,
regulatory or judicial action, claim or notice of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any Subsidiary.
(kk) Neither the Company, any Subsidiary nor, to the
Company's knowledge, any of its employees or agents has at any time during the
last five years (i) made any unlawful contribution to any candidate for foreign
office, or failed to disclose fully any contribution in violation of law, or
(ii) made any payment to any federal or state governmental officer or official,
or other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States of any
jurisdiction thereof.
(ll) Neither the Company nor any Subsidiary (i) is in
violation of its certificate or articles of incorporation, by-laws, certificate
of formation, limited liability company agreement, partnership agreement or
other organizational documents, (ii) is in default under, and no event has
occurred which, with notice or lapse of time or both, would constitute a default
under or result in the creation or imposition of any Lien upon any of its
property or assets pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it
is bound or to which any of its property or assets is subject, or (iii) is in
violation in any respect of any law, rule, regulation, ordinance, directive,
judgment, decree or order of any judicial, regulatory or other legal or
governmental agency or body, foreign or domestic, except (in the case clauses
(ii) and (iii) above) violations or defaults that would not (individually or in
the aggregate) have a Material Adverse Effect and except (in
11
the case of clause (ii) alone) for any Lien disclosed in the Registration
Statement and the Prospectus.
(mm) Except as disclosed in the Registration and the
Prospectus, there are no outstanding guarantees or other contingent obligations
of the Company or any Subsidiary that would have a Material Adverse Effect.
(nn) Neither the Company nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company is
currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department ("OFAC"); and the Company will
not directly or indirectly use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
Any certificate signed by or on behalf of the Company and
delivered to the Representatives or to counsel for the Underwriters pursuant to
this Agreement shall be deemed to be a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
2. Representations and Warranties of Selling Stockholders.
Each Selling Stockholder, severally and not jointly,
represents and warrants to, and agrees with each of the Underwriters as of the
date hereof, the Closing Date and any Additional Closing Date that:
(a) This Agreement has been duly and validly
authorized, executed and delivered by or on behalf of each Selling Stockholder.
(b) Each of the Custody Agreement and Powers of
Attorney, attached as Exhibit B hereto, ("Custody Agreement and Power of
Attorney") signed by (i) such Selling Stockholder, (ii) LaSalle Bank National
Association as custodian (in such capacity, the "Custodian"), and (iii) Xxxx X.
Xxxxx (with respect to AAC Quad-C, Investors LLC) and Xxxxxx Xxxx (with respect
to all other Selling Stockholders), as such Selling Stockholder's
attorney-in-fact (in such capacity, the "Attorney-in-Fact"), has been duly and
validly authorized, executed and delivered by the Selling Stockholder and is a
valid and binding agreement of such Selling Stockholder, enforceable against him
or it in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(c) Each Selling Stockholder agrees that the Firm
Shares and Additional Shares, if any, to be sold by such Selling Stockholder on
deposit with the Custodian are subject to the interests of the Underwriters,
that the arrangements made for such custody are to that extent irrevocable, and
that the obligations of the Selling Stockholder hereunder shall not be
terminated, except as provided in this Agreement or in the Custody Agreement and
Power of Attorney, by any act of the Selling Stockholder, by operation of law or
by the occurrence of any other event. If the Attorney-in-Fact should die or
become incapacitated, or if any other event
12
should occur, before the delivery of the Firm Shares or Additional Shares, if
any, to be sold by such Selling Stockholder hereunder, the documents evidencing
such Shares then on deposit with the Custodian shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death, incapacity or other event had not occurred, regardless of whether or
not the Custodian shall have received notice thereof.
(d) Each Selling Stockholder is the lawful owner of
the Firm Shares and the Additional Shares, if any, to be sold by such Selling
Stockholder hereunder, and upon sale and delivery of, and payment for, such Firm
Shares and Additional Shares, if any, as provided herein, such Selling
Stockholder will convey to the Underwriters good and marketable title to the
Firm Shares and Additional Shares, if applicable, free and clear of all Liens.
Certificates for all of the Shares to be sold by the Selling Stockholder
hereunder, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with irrevocable
conditional instructions to deliver such Shares to the Underwriters pursuant to
this Agreement.
(e) Each Selling Stockholder has good and valid title
to all of the Firm Shares and Additional Shares, if any, to be sold by such
Selling Stockholder hereunder and has the legal right and power and capacity,
and all authorizations and approvals required by law to enter into this
Agreement and the applicable Custody Agreement and Power of Attorney, to sell,
transfer and deliver all of the Firm Shares and Additional Shares, if
applicable, and to comply with his or its other obligations hereunder and
thereunder. The Shares to be sold by each Selling Stockholder pursuant to this
Agreement are certificated securities in registered form and are not held by or
through any securities intermediary within the meaning of the Uniform Commercial
Code as in effect in the State of New York (the "NYUCC"). Upon delivery to the
Lead Manager of the certificates evidencing such Shares indorsed to the Lead
Manager or indorsed in blank by an effective indorsement, the Lead Manager, on
behalf of itself and the other Underwriters, will become a "protected purchaser"
of the Shares (as defined in Section 8-303 of the NYUCC) and acquire such
certificate (and the shares represented thereby) free of any adverse claims (as
defined in Section 8-102(a)(1) of the NYUCC), assuming that neither the Lead
Manager nor any other Underwriter has notice of any adverse claim.
(f) No consent, approval, authorization or order of
any court or governmental agency or body is required for the execution, delivery
and performance by such Selling Stockholder of this Agreement and the
consummation by such Selling Stockholder of the transactions contemplated
herein, except (i) such as may have been obtained under the Securities Act, (ii)
such as may be required under the state securities laws or the blue sky laws or
any jurisdiction in connection with the purchase and distribution of the Shares
by the Underwriters and (iii) such other approvals as have been obtained.
(g) There are no contracts, agreements or
understandings between such Selling Shareholder and any person that would give
rise to a valid claim against such Selling Shareholder, the Company, any
Subsidiary or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this Offering.
(h) The execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by such Selling
Stockholder and the
13
consummation by such Selling Stockholder of the transactions contemplated hereby
and thereby or the fulfillment of the terms hereof by such Selling Stockholder
will not conflict with, result in a breach or violation of, or constitute a
default under any law or the terms of any indenture or other agreement or
instrument to which such Selling Stockholder is party or bound, or to which any
of the property or assets of such Selling Stockholder is subject, nor will such
actions result in any violation of the provisions of the charter or bylaws or
certificate of formation or partnership agreement or the articles of partnership
or trust agreement, as applicable, of such Selling Stockholder or, any judgment,
order or decree applicable to such Selling Stockholder or any court or
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over such Selling Stockholder.
(i) Such Selling Stockholder does not have any
registration or other similar rights to have any equity or debt securities
registered for sale by the Company under the Registration Statement or included
in the offering of the Shares, except for such rights as have been waived or
which are described in the Registration Statement and the Prospectus.
(j) Such Selling Stockholder does not have, or has
waived prior to the date hereof, any preemptive right, co-sale right or right of
first refusal or other similar right to purchase any of the Shares, if any, that
are to be sold to the Underwriters pursuant to this Agreement; and none of the
Selling Stockholders owns any warrants, options or similar rights to acquire,
and does not have any right or arrangement to acquire, any capital stock, right,
warrants, options or other securities from the Company, other than those
described in the Registration Statement and the Prospectus.
(k) All information furnished by or on behalf of such
Selling Stockholder in writing for use in the Registration Statement and
Prospectus, and all information contained in the Registration Statement and
Prospectus with respect to such Selling Stockholder, is true, correct, and
complete in all material respects and does not and will not contain any untrue
statement of a material fact.
(l) Such Selling Stockholder has no reason to believe
that the representations and warranties of the Company contained in Section 1
hereof are not true and correct, is familiar with the Registration Statement and
Prospectus and has no knowledge of any material fact, condition or information
not disclosed in the Registration Statement or Prospectus which has had or would
have a Material Adverse Effect on the Company and its Subsidiaries, individually
or taken as a whole, and is not prompted to sell any of the Shares by any
information concerning the Company which is not set forth in the Registration
Statement and the Prospectus.
(m) 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 would cause or result in the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares.
(n) Such Selling Stockholder has not distributed and
will not distribute, prior to the later of the Additional Closing Date, if any,
and the completion of the Underwriters' distribution of the Shares, any offering
material in connection with the offering
14
and sale of the Shares by such Selling Stockholder other than a Preliminary
Prospectus, the Prospectus or the Registration Statement.
(o) Such Selling Stockholder does not have any
knowledge that the Registration Statement or Prospectus (or any amendment of
supplement thereto) contains any untrue statement of material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(p) If such Selling Stockholder is a director or
executive officer of the Company, such Such Selling Stockholder does not have
any reason to believe that the Registration Statement or Prospectus (or any
amendment of supplement thereto) contains any untrue statement of material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(q) Such Selling Stockholder nor any of its
affiliates directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section 1(m) of the By-laws
of the National Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
(r) The representations and warranties of such
Selling Stockholder in such Selling Stockholder's Custody Agreement and Power of
Attorney are and will be true and correct.
Any certificate signed by any officer or other representative
of any Selling Stockholder and delivered to the Underwriters or to counsel for
the Underwriters pursuant to this Agreement shall be deemed to be a
representation and warranty by such Selling Stockholder to the Underwriters as
to the matters covered thereby.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, each Selling Stockholder agrees to sell to the
Underwriters, severally and not jointly, that number of Firm Shares set forth on
Schedule I opposite the name of such Selling Stockholder and the Underwriters,
severally and not jointly, agree to purchase from each Selling Stockholder, that
number of Firm Shares set forth on Schedule II opposite the name of such
Underwriter at a purchase price per share of $[ ] together with any additional
number of Firm Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for, and delivery
of certificates representing, the Firm Shares shall be made at the office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP ("Underwriters' Counsel"), or at such
other place as shall be agreed upon by the Lead Manager and the Company, at
10:00 A.M., New York City time, on the third or (as permitted under Rule 15c6-1
under the Exchange Act) fourth business day (unless postponed in accordance with
the provisions of Section 10 hereof) following the date of the effectiveness of
the Registration Statement or, if the Company has elected to rely upon Rule 430A
under the Securities Act, the third or (as permitted under Rule 15c6-1 under the
Exchange Act) fourth
15
business day after the determination of the public offering price of the Shares,
or such other time not later than ten business days after such date as shall be
agreed upon by the Lead Manager and the Company (such time and date of payment
and delivery being herein called the "Closing Date").
Payment for the Firm Shares shall be made to or upon the order
of the Selling Stockholder by wire transfer in Federal (same day) funds to each
Selling Stockholder upon delivery of certificates for the Firm Shares to you
through the facilities of The Depository Trust Company for the respective
accounts of the several Underwriters against receipt therefor signed by you.
Certificates for the Firm Shares shall be registered in such name or names and
shall be in such denominations as the Lead Manager may request at least two
business days before the Closing Date. The Custodian is authorized to deduct the
amount payable by each Selling Stockholder under Section 5(b)(iv) hereof from
the proceeds to such Selling Stockholder hereunder and to hold such amount for
the account of such Selling Stockholder with the Custodian under the Custody
Agreement and Power of Attorney. The Company will permit the Lead Manager to
examine and package such certificates for delivery at least one full business
day prior to the Closing Date.
(c) In addition, on the basis of the representations,
warranties, covenants and agreements herein contained, but subject to the terms
and conditions herein set forth, each Selling Stockholder hereby grants to the
Underwriters, acting severally and not jointly, the option to purchase up to
750,000 Additional Shares at the same purchase price per share to be paid by the
Underwriters for the Firm Shares as set forth in Section 3(a) above, for the
sole purpose of covering over-allotments in the sale of Firm Shares by the
Underwriters. This option may be exercised at any time and from time to time, in
whole or in part on one or more occasions, on or before the thirtieth day
following the date of the Prospectus, by written notice from the Lead Manager to
the Company and the Selling Stockholder. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised
and the date and time, as reasonably determined by Bear Xxxxxxx, when the
Additional Shares are to be delivered (any such date and time being herein
sometimes referred to as the "Additional Closing Date"); provided, however, that
no Additional Closing Date shall occur earlier than the Closing Date or earlier
than the second full business day after the date on which the option shall have
been exercised nor later than the eighth full business day after the date on
which the option shall have been exercised (unless such time and date are
postponed in accordance with the provisions of Section 10 hereof). Upon any
exercise of the option as to all or any portion of the Additional Shares, each
Underwriter, acting severally and not jointly, agrees to purchase from the
Selling Stockholders the number of Additional Shares that bears the same
proportion of the total number of Additional Shares then being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule II hereto (or such number increased as set forth in Section 10 hereof)
bears to the total number of Firm Shares that the Underwriters have agreed to
purchased hereunder, subject, however, to such adjustments to eliminate
fractional shares as Bear Xxxxxxx in its sole discretion shall make. If the
Underwriters exercise their option under this Section 3(c) to purchase less than
all of the Additional Shares, then the number of Additional Shares to be sold to
the Underwriters by each of the Selling Stockholders shall be the number which
bears the same ratio to the aggregate number of Additional Shares being
purchased as the number of Additional Shares set forth opposite the name of such
Selling stockholder in Schedule I bears to the total number of Additional
Shares, subject however, to
16
such adjustments to eliminate any fractional shares as Bear Xxxxxxx in its sole
discretion shall make.
(d) Payment of the purchase price for, and delivery
of certificates representing, the Additional Shares shall be made at the office
of Underwriters' Counsel, or at such other place as shall be agreed upon by the
Lead Manager and the Company, at 10:00 A.M., New York City time, on the
Additional Closing Date (unless postponed in accordance with the provisions of
Section 10 hereof), or such other time as shall be agreed upon by Bear Xxxxxxx
and the Company.
Payment for the Additional Shares shall be made to or upon the
order of the Selling Stockholder by wire transfer in Federal (same day) funds to
each Selling Stockholder upon delivery of certificates for the Shares to you
through the facilities of The Depository Trust Company for the respective
accounts of the several Underwriters. Certificates for the Additional Shares
shall be registered in such name or names and shall be in such denominations as
the Lead Manager may request at least two business days before the Additional
Closing Date. The Custodian is authorized to deduct the amount payable by each
Selling Stockholder under Section 5(b)(iv) hereof from the proceeds to such
Selling Stockholder hereunder and to hold such amounts for the account of such
Selling Stockholder with the Custodian under the Custody Agreement and Power of
Attorney. The Company will permit the Lead Manager to examine and package such
certificates for delivery at least one full business day prior to the Additional
Closing Date.
4. Offering.
Upon authorization of the release of the Firm Shares by the
Lead Manager, the Underwriters propose to offer the Shares for sale to the
public upon the terms and conditions set forth in the Prospectus.
5. Covenants of the Company and Selling Stockholders.
(a) The Company covenants and agrees with the
Underwriters that:
(i) The Registration Statement and any
amendments thereto have been declared effective, and if Rule 430A is used or the
filing of the Prospectus is otherwise required under Rule 424(b) or Rule 434,
the Company will file the Prospectus (properly completed if Rule 430A has been
used) pursuant to Rule 424(b) within the prescribed time period and will provide
evidence satisfactory to the Lead Manager of such timely filing. If the Company
elects to rely on Rule 434, the Company will prepare and file a term sheet that
complies with the requirements of Rule 434, and the Prospectus shall not be
"materially different" (as such term is used in Rule 434) from the Prospectus
included in the Registration Statement at the time it became effective.
The Company will notify you immediately (and, if requested by
the Lead Manager, will confirm such notice in writing) (i) when the Registration
Statement and any amendments thereto become effective, (ii) of any request by
the Commission for any amendment of or supplement to the Registration Statement
or the Prospectus or for any additional information, (iii) of the Company's
intention to file or prepare any supplement or amendment to
17
the Registration Statement or the Prospectus, (iv) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, including but not limited to Rule
462(b) under the Securities Act, (v) after the Company receives notice of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, it being understood
that the Company shall make every effort to avoid the issuance of any such stop
order, (vi) of the receipt of any comments from the Commission, and (vii) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose. If the Commission shall propose
or enter a stop order at any time, the Company will make every reasonable effort
to prevent the issuance of any such stop order and, if issued, to obtain the
lifting of such order as soon as possible. The Company will not file any
amendment to the Registration Statement or any amendment of or supplement to the
Prospectus (including the prospectus required to be filed pursuant to Rule
424(b) or Rule 434) that differs from the prospectus on file at the time of the
effectiveness of the Registration Statement to which the Lead Manager shall
reasonably object in writing after being timely furnished in advance a copy
thereof. The Company will provide the Lead Manager with copies of all such
amendments, filings and other documents a sufficient time prior to any filing or
other publication thereof to permit the Lead Manager a reasonable opportunity to
review and comment thereon.
(ii) The Company shall comply with the
Securities Act to permit completion of the distribution as contemplated in this
Agreement, the Registration Statement and the Prospectus. If at any time when a
prospectus relating to the Shares is required to be delivered under the
Securities Act in connection with the sales of Shares, any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would, in the judgment of the Underwriters or the Company, include an 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 existing at the time of delivery to the purchaser, not misleading,
or if to comply with the Securities Act or the Rules and Regulations it shall be
necessary at any time to amend or supplement the Prospectus or Registration
Statement the Company will notify you promptly and prepare and file with the
Commission, subject to Section 5(a) hereof, an appropriate amendment or
supplement (in form and substance reasonably satisfactory to the Lead Manager)
which will correct such statement or omission and will use its commercially
reasonable efforts to have any amendment to the Registration Statement declared
effective as soon as possible.
(iii) The Company will promptly deliver to
each of you and Underwriters' Counsel a signed copy of the Registration
Statement, as initially filed and all amendments thereto, including all consents
and exhibits filed therewith, and will maintain in the Company's files manually
signed copies of such documents for at least five years after the date of
filing. The Company will promptly deliver to each of the Underwriters such
number of copies of any Preliminary Prospectus, the Prospectus, the Registration
Statement and all amendments of and supplements to such documents, if any as you
may reasonably request. Prior to 10:00 A.M., New York time, on the business day
next succeeding the date of this Agreement and from time to time thereafter, the
Company will furnish the Underwriters with copies of the Prospectus in New York
City in such quantities as you may reasonably request.
18
(iv) The Company consents to the use and
delivery of the Preliminary Prospectus by the Underwriters in accordance with
Rule 430 and Section 5(b) of the Securities Act.
(v) The Company will use its commercially
reasonable efforts, in cooperation with the Lead Manager, at or prior to the
time of effectiveness of the Registration Statement, to qualify the Shares for
offering and sale under the securities laws relating to the offering or sale of
the Shares of such jurisdictions, domestic or foreign, as the Lead Manager may
designate and to maintain such qualification in effect for so long as required
for the distribution thereof; except that in no event shall the Company be
obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process.
(vi) The Company will make generally
available to its security holders and to the Underwriters as soon as
practicable, but in any event not later than twelve months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the
Securities Act), an earnings statement of the Company and the Subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities Act
and the Rules and Regulations (including, at the option of the Company, Rule
158).
(vii) During the period beginning on the
date of the Prospectus and ending 90 days after the date of the Prospectus,
without the prior written consent of the Lead Manager, the Company (i) except
pursuant to employee stock option, incentive or SAR plans in effect on the date
hereof, or other options granted to the Company's directors, will not, directly
or indirectly, issue, offer, sell, agree to issue, offer or sell, solicit offers
to purchase, grant any call option, warrant or other right to purchase, purchase
any put option or other right to sell, pledge, borrow or otherwise dispose of
any Relevant Security, or make any announcement of any of the foregoing, (ii)
will not establish or increase any "put equivalent position" or liquidate or
decrease any "call equivalent position" (in each case within the meaning of
Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder) with respect to any Relevant Security, and (iii) will not otherwise
enter into any swap, derivative or other transaction or arrangement that
transfers to another, in whole or in part, any economic consequence of ownership
of a Relevant Security, whether or not such transaction is to be settled by
delivery of Relevant Securities, other securities, cash or other consideration.
The Company will obtain an undertaking in substantially the form of Annex IV
hereto of each of its directors and the officers listed on Schedule III attached
hereto and the Selling Stockholders listed on Schedule III attached hereto not
to engage in any of the aforementioned transactions on its own behalf, other
than the sale of Shares as contemplated by this Agreement and the Company's
issuance of Common Stock upon (i) the conversion or exchange of convertible or
exchangeable securities outstanding on the date hereof, (ii) the exercise of
currently outstanding options, (iii) the grant and exercise of options under, or
the issuance and sale of shares pursuant to, employee stock option or incentive
plans in effect on the date hereof, each as described in the Registration
Statement and the Prospectus, and (iv) sales pursuant to currently existing
10b5-1 trading plans. During the period beginning on the date of the Prospectus
and ending 90 days after the date of the Prospectus, the Company will not file a
registration statement under the Securities Act in connection with any
transaction by the Company or any security holder of the Company, except for
registration statements on Form S-8 relating to employee benefit plans or stock
incentive plans described in the Registration Statement and Prospectus.
Notwithstanding anything to the
19
contrary contained in this Section 5(viii), the Selling Stockholders are
permitted to sell Additional Shares to the Underwriters in accordance with this
Agreement.
(viii) During the period beginning on the
effective date of the Registration Statement and ending on the fourth
anniversary of such date, the Company will furnish to you copies of all reports
or other communications (financial or other) furnished to security holders or
from time to time published or publicly disseminated by the Company, and will
deliver to you (i) as soon as they are available, copies of any reports,
financial statements and proxy or information 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 information to be on a
consolidated basis to the extent the accounts of the Company and the
Subsidiaries are consolidated in reports furnished to its security holders
generally or to the Commission).
(ix) If all or any portion of the Shares are
not already listed for quotation on the Nasdaq, the Company will use its
commercially reasonable efforts to list the Shares for quotation on the Nasdaq
and maintain the listing of the shares on the Nasdaq or the NYSE.
(x) The Company, during the period when the
Prospectus is required to be delivered under the Securities Act, will file all
documents required to be filed with the Commission pursuant to the Securities
Act and the Rules and Regulations within the time periods required thereby.
(xi) The Company will use its commercially
reasonable efforts to do and perform all things required to be done or performed
under this Agreement by the Company prior to the Closing Date or the Additional
Date, as the case may be, and to satisfy all conditions precedent to the
delivery of the Firm Shares and the Additional Shares.
(xii) The Company will not take, and will
cause its affiliates (within the meaning of Rule 144 under the Securities Act)
not to take, directly or indirectly, any action which constitutes or is designed
to cause or result in, or which would constitute, cause or result in, the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Shares.
(b) Each Selling Stockholder covenants and agrees
with each Underwriter to:
(i) Deliver to the Representatives prior to
the Closing Date, a properly completed and executed United States Treasury
Department Form W-8 (if such Selling Stockholder is a non-United States Person)
or Form W-9 (if such Selling Stockholder is a United States Person);
(ii) Promptly notify the Company and the
Lead Manager if, at any time prior to the date on which the distribution of the
Shares as contemplated herein and in the Prospectus has been completed, as
determined by the Lead Manager, such Selling Stockholder has knowledge of the
occurrence of any event as a result of which the Prospectus or
20
the Registration Statement, in each case as then amended or supplemented, would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(iii) Cooperate to the extent reasonably
necessary to cause the Registration Statement or any post-effective amendment
thereto to become effective at the earliest possible time and to do and perform
all things to be done and performed under this Agreement prior to the Closing
Date and to satisfy all conditions precedent to the delivery of the Shares
pursuant to this Agreement;
(iv) Pay or cause to be paid all transfer
taxes, stamp duties and other similar taxes with respect to the Shares, if any,
to be sold by such Selling Stockholder; and
(v) Deliver to Lead Manager on or prior to
the date of this Agreement the lock-up agreement referenced in Section 7(e)
hereof, is applicable.
6. Payment of Expense.
Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company and, only to the
extent expressly set forth below, the Selling Stockholders hereby agree, except
as otherwise provided in this Section 6, to pay all costs and expenses incident
to the performance of their respective obligations hereunder, including the
following: (i) all expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and any and all amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Securities Act and the
Offering; (iii) the cost of producing this Agreement and any agreement among
Underwriters, blue sky survey, closing documents and other instruments,
agreements or documents (including any compilations thereof) in connection with
the Offering; (iv) all expenses in connection with the qualification of the
Shares for offering and sale under state or foreign securities or blue sky laws
as provided in Section 5(a)(v) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification or offering
and in connection with any blue sky survey (which fees and disbursements shall
not exceed $15,000); (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the NASD of the terms of the Offering (which fees and
disbursements shall not exceed $20,000); (vi) all fees and expenses, if any, in
connection with listing the Shares on the Nasdaq; (vii) all travel expenses of
the Company's officers and employees and any other expense of the Company
incurred in connection with attending meetings with prospective purchasers of
the Shares and (viii) the fees of the Custodian and other fees and expenses
related to the offering of Shares by the Selling Stockholders. The Company also
will pay or cause to be paid: (i) the cost of preparing stock certificates for
the Shares; (ii) the cost and charges of any transfer agent or registrar for the
Shares; and (iii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section 6. It is understood, however, that except as provided in this
Section 6, and Sections 8, 9 and 12 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.
21
Notwithstanding anything to the contrary in this Section 6, in the event that
this Agreement is terminated pursuant to Section 7 or 12(b) hereof, or
subsequent to a Material Adverse Change, the Company will pay all out-of-pocket
expenses of the Underwriters incurred in connection herewith. Each Selling
Stockholder shall pay all of its own fees and expenses related to the offering
of the Shares, including (i) the fees and disbursements of his or its counsel,
if any, and (ii) any applicable stock transfer or other taxes related to the
offering of his or its Shares. Notwithstanding the foregoing, nothing herein
shall affect any agreement that the Company and the Selling Stockholders may
make for the sharing or allocation of such costs and expenses.
7. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for
the Firm Shares and the Additional Shares, as provided herein, shall be subject
to the accuracy of the representations and warranties of the Company and the
Selling Stockholders herein contained, as of the date hereof and as of the
Closing Date (for purposes of this Section 7 "Closing Date" shall refer to the
Closing Date for the Firm Shares and any Additional Closing Date, if different,
for the Additional Shares), to the absence from any certificates, opinions,
written statements or letters furnished to you or to Underwriters' Counsel
pursuant to this Section 7 of any misstatement or omission, to the performance
by the Company or the Selling Stockholder of their respective obligations
hereunder, and to each of the following additional conditions:
(a) The Registration Statement shall have become
effective and all necessary regulatory or stock exchange approvals shall have
been received not later than 5:30 P.M., New York time, on the date of this
Agreement, or at such later time and date as shall have been consented to in
writing by the Lead Manager; if the Company shall have elected to rely upon Rule
430A or Rule 434 under the Securities Act, the Prospectus shall have been filed
with the Commission in a timely fashion in accordance with Section 5(a) hereof
and a form of the Prospectus containing information relating to the description
of the Shares and the method of distribution and similar matters shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period; and, at or prior to the Closing Date no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof shall have been issued and no proceedings therefor shall have been
initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the
written opinion of Xxxxxx Xxxxxxx PLLC, counsel for the Company, dated the
Closing Date addressed to the Underwriters in the form attached hereto as Annex
I.
(c) At the Closing Date you shall have received the
written opinions of McGuireWoods LLP, counsel for the Selling Stockholders,
dated the Closing Date addressed to the Underwriters in the forms attached
hereto as Annex II.
(d) At the Closing Date you shall have received the
written opinion of Xxxxxx Xxxx, General Counsel of the Company, on behalf of the
Company, dated the Closing Date addressed to the Underwriters in the form
attached hereto as Annex III.
(e) All proceedings taken in connection with the sale
of the Firm Shares and the Additional Shares as herein contemplated shall be
reasonably satisfactory in form
22
and substance to the Lead Manager and to Underwriters' Counsel, and the
Underwriters shall have received from Underwriters' Counsel a favorable written
opinion, dated as of the Closing Date, with respect to the issuance and sale of
the Shares, the Registration Statement and the Prospectus and such other related
matters as the Lead Manager may reasonably require, and the Company shall have
furnished to Underwriters' Counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(f) The Company shall have received a duly executed
lock-up agreement from each person listed on Schedule III hereto substantially
in the form attached hereto as Annex IV.
(g) At the Closing Date you shall have received a
certificate of the Chief Executive Officer and Chief Financial Officer of the
Company, dated the Closing Date to the effect that (i) the condition set forth
in subsection (a) of this Section 7 has been satisfied, (ii) as of the date
hereof and as of the Closing Date, the representations and warranties of the
Company set forth in Section 1 hereof are accurate, (iii) as of the Closing Date
all agreements, conditions and obligations of the Company to be performed or
complied with hereunder on or prior thereto have been duly performed or complied
with, (iv) the Company and the Subsidiaries have not sustained any loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding which would have
a Material Adverse Effect, (v) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof has been issued
and no proceedings therefor have been initiated or to the best knowledge of the
Company, threatened by the Commission, (vi) there are no pro forma or as
adjusted financial statements that are required to be included in the
Registration Statement and the Prospectus pursuant to the Rules and Regulations
that have not been included as required, and (vii) subsequent to the respective
dates as of which information is given in the Registration Statement and the
Prospectus there has not been any material adverse change or any development
involving a prospective Material Adverse Change, whether or not arising from
transactions in the ordinary course of business, in or affecting (x) the
business, condition (financial or otherwise), results of operations,
stockholders' equity, properties or prospects of the Company and the
Subsidiaries, individually or taken as a whole, (y) the long-term debt or
capital stock of the Company or any of its Subsidiaries, or (z) the Offering or
consummation of any of the other transactions contemplated by this Agreement,
the Registration Statement and the Prospectus.
(h) At the time this Agreement is executed and at the
Closing Date, you shall have received a comfort letter, from Ernst & Young LLP,
independent registered public accounting firm for the Company, dated,
respectively, as of the date of this Agreement and as of the Closing Date
addressed to the Underwriters and in form and substance reasonably satisfactory
to the Underwriters and Underwriters' Counsel.
(i) At the time this Agreement is executed and at the
Closing Date, you shall have received a letter, from Ernst & Young LLP, dated,
respectively, as of the date of this Agreement and as of the Closing Date
addressed to the Underwriters and in form and substance reasonably satisfactory
to the Underwriters and Underwriters' Counsel, stating that nothing caused them
to believe that the audited pro forma information of the Company included in the
Registration Statement does not comply as to form with the applicable accounting
23
requirements of Rule 11-02 of Regulation S-X promulgated under the Securities
Act or that the pro forma adjustments have not been applied properly to the
historical amounts in the compilation of such statements.
(j) You shall have received from Ernst & Young LLP, a
letter stating that the Company's system of internal accounting controls taken
as a whole is sufficient to meet the broad objectives of internal accounting
control insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation to the
financial statements of the Company and its subsidiaries.
(k) Subsequent to the execution and delivery of this
Agreement or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto), there shall not have been any change in
the capital stock or long-term debt of the Company or any Subsidiary or any
change or development involving a change, whether or not arising from
transactions in the ordinary course of business, in the business, condition
(financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company and the Subsidiaries, individually or
taken as a whole, including but not limited to the occurrence of any fire,
flood, storm, explosion, accident or other calamity at any of the properties
owned or leased by the Company or any of its Subsidiaries, the effect of which,
in any such case described above, is, in the judgment of the Lead Manager, so
material and adverse as to make it impracticable or inadvisable to proceed with
the Offering on the terms and in the manner contemplated in the Prospectus
(exclusive of any supplement).
(l) No downgrading shall have occurred in the
Company's corporate credit rating or the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act)
and 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, it being understood that, as of the date of
this Agreement and the Closing Date, that the Company has no such rating.
(m) At the Closing Date, the Shares shall have been
approved for quotation on the Nasdaq.
(n) At the Closing Date, the NASD shall have
confirmed that it has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(o) At the Closing Date, you shall have received a
certificate of each Selling Stockholder or an authorized representative thereof,
dated the Closing Date, to the effect that the representations and warranties of
the Selling Stockholders set forth in Section 2 hereof are accurate and that
such Selling Shareholder has complied with all agreements and satisfied all
conditions on his or its part to be performed or satisfied hereunder at or prior
to the Closing Date.
(p) No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that would, as of
the Closing Date, prevent the issuance or sale of the
24
Shares; and no injunction or order of any federal, state or foreign court shall
have been issued that would, as of the Closing Date, prevent the issuance or
sale of the Shares.
(q) On or prior to the Closing Date, the Company
shall have received 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) from each Selling Stockholder.
(r) At the time this Agreement is executed and at the
Closing Date, you shall have received from the Chief Financial Officer of the
Company a certificate in form and substance reasonably satisfactory to the Lead
Manager and Underwriters' Counsel as to the accuracies of certain numbers
contained in the Registration Statement.
(s) The Company and each Selling Stockholder shall
have furnished the Underwriters and Underwriters' Counsel with such other
certificates, opinions or other documents as they may have reasonably requested.
If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 7 shall not be reasonably
satisfactory in form and substance to the Lead Manager and to Underwriters'
Counsel, all obligations of the Underwriters hereunder may be cancelled by the
Lead Manager at, or at any time prior to, the Closing Date and the obligations
of the Underwriters to purchase the Additional Shares may be cancelled by the
Lead Manager at, or at any time prior to, the Additional Closing Date. Notice of
such cancellation shall be given to the Company in writing, or by telephone. Any
such telephone notice shall be confirmed promptly thereafter in writing.
8. Indemnification.
(a) The Company shall indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to reasonable attorneys' fees
and any and all expenses incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in (A) the Registration Statement, as originally filed or any
amendment thereof, or any related Preliminary Prospectus or the Prospectus, or
in any supplement thereto or amendment thereof, or (B) in any materials or
information provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Shares, including any road
show or investor presentations made to investors by the Company (whether in
person or electronically) ("Marketing Materials") or (ii) any omission or
alleged omission to state in the Registration Statement, as originally filed or
any amendment thereof, or any related Preliminary Prospectus or the Prospectus,
or in any supplement thereto or amendment thereof, a material fact required to
be stated therein or necessary to make the statements therein (x) in the case of
the Registration
25
Statement, not misleading, and (y) in the case of the Prospectus or any
Preliminary Prospectus in light of the circumstances under which they were made,
not misleading; provided, however, that (i) the Company will not be liable in
any such case to the extent but only to the extent that any such loss,
liability, claim, damage or expense arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, as originally filed or any amendment thereof, or any
related Preliminary Prospectus or the Prospectus, or in any supplement thereto
or amendment thereof, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Lead Manager expressly for use therein, and (ii) with respect to any untrue
statement or omission of material fact made in any Preliminary Prospectus, the
indemnity agreement contained in this section shall not inure to the benefit of
any Underwriter from whom the person asserting any such loss, claim, damage,
liability or action purchased the securities concerned, to the extent that any
such loss, claim, damage, liability or action of such Underwriter occurs under
the circumstance where it shall have been determined by a court of competent
jurisdiction in a decision not subject to further appeal that (A) the Company
had furnished copies of the Prospectus, as amended or supplemented, to the Lead
Manager in the requisite quantity and on a timely basis to permit proper
delivery on or prior to the time at which written confirmation of the sale of
such securities was delivered by the Underwriter, (B) delivery of the
Prospectus, as amended or supplemented, was required by the Securities Act to be
made to such person at such time, (C) the untrue statement or omission of a
material fact contained in the Preliminary Prospectus was corrected in the
Prospectus as amended or supplemented, and (D) the Underwriter did not send or
give to such person, at or prior to the written confirmation of the sale of such
securities to such person, a copy of the Prospectus as amended or supplemented.
The parties agree that such information provided by or on behalf of any
Underwriter through the Lead Manager consists solely of the material referred to
in the last sentence of Section 1(b) hereof. This indemnity agreement will be in
addition to any liability which the Company may otherwise have, including but
not limited to other liability under this Agreement.
(b) Each Selling Stockholder shall, severally and not
jointly, indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not limited
to reasonable attorneys' fees and any and all expenses incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact in respect of such Selling Stockholder (A)
contained in the Registration Statement, as originally filed or any amendment
thereof, or any related Preliminary Prospectus or the Prospectus, or in any
supplement thereto or amendment thereof, or (B) in any Marketing Materials, or
are based upon the omission or alleged omission to state in the Registration
Statement, as originally filed or any amendment thereof, or any related
Preliminary Prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, a material fact in respect of such Selling Stockholder
required to be stated therein or necessary to make the statements relating to
such Selling Stockholder therein (x) in the case of the Registration Statement,
not misleading, and (y) in the case of the Prospectus or any Preliminary
Prospectus in light of the circumstances under which they were made, not
misleading; provided,
26
however, that (i) such Selling Stockholder will be liable in any such case to
the extent but only to the extent that any such loss, liability, claim, damage
or expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement, as
originally filed or any amendment thereof, or any related Preliminary Prospectus
or the Prospectus, or in any supplement thereto or amendment thereof, made in
reliance upon and in conformity with written information furnished to the
Company expressly for use therein, it being agreed that the only such
information is that which is included under the caption "Principal and Selling
Stockholders" which relates to such Selling Stockholder (the "Selling
Shareholder Information"), (ii) with respect to any untrue statement or omission
of material fact made in any Preliminary Prospectus made in reliance upon and in
conformity with the Selling Shareholder Information, the indemnity agreement
contained in this section shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, claim, damage, liability or action
purchased the securities concerned, to the extent that any such loss, claim,
damage, liability or action of such Underwriter occurs under the circumstance
where it shall have been determined by a court of competent jurisdiction in a
decision not subject to further appeal that (A) the Company had furnished copies
of the Prospectus, as amended or supplemented, to the Lead Manager in the
requisite quantity and on a timely basis to permit proper delivery on or prior
to the time at which written confirmation of the sale of such securities was
delivered by the Underwriter, (B) delivery of the Prospectus, as amended or
supplemented, was required by the Securities Act to be made to such person at
such time, (C) the untrue statement or omission of a material fact contained in
the Preliminary Prospectus was corrected in the Prospectus as amended or
supplemented, and (D) the Underwriter did not send or give to such person, at or
prior to the written confirmation of the sale of such securities to such person,
a copy of the Prospectus as amended or supplemented, and (iii) in no such case
shall such Selling Stockholder be liable or responsible for any amount in excess
of the proceeds (net of the underwriting discount) applicable to the Shares sold
by such Selling Stockholder pursuant to the transactions contemplated hereby.
This indemnity agreement will be in addition to any liability which any Selling
Stockholder may otherwise have, including but not limited to other liability
under this Agreement.
(c) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless each Selling Stockholder, the Company, each of
the directors of the Company, each of the officers of the Company who shall have
signed the Registration Statement, and each other person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or
any amendment thereof, or any related Preliminary Prospectus or the Prospectus,
or in any amendment thereof 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 any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made
27
therein in reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the Lead Manager
specifically for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares to be purchased by such
Underwriter hereunder. The parties agree that such information provided by or on
behalf of any Underwriter through the Lead Manager consists solely of the
material referred to in the last sentence of Section 1(b) hereof. This indemnity
will be in addition to any liability which any Underwriter may otherwise have,
including but not limited to other liability under this Agreement.
(d) Promptly after receipt by an indemnified party
under subsection (a), (b) or (c) above of notice of any claims or 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,
promptly notify each party against whom indemnification is to be sought in
writing of the claim or the commencement thereof (but the failure so to notify
an indemnifying party shall not relieve the indemnifying party from any
liability which it may have under this Section 8 to the extent that is it not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability that such indemnifying party may have otherwise than on
account of the indemnity agreement hereunder). In case any such claim or action
is brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate, at its own expense in the defense of such action, and to the extent
it may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party; provided,
however, that counsel to the indemnifying party shall not (except with the
written consent of the indemnified party) also be counsel to the indemnified
party. Notwithstanding the foregoing, the indemnified party or parties shall
have the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have been authorized
in writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, (iii) the indemnifying party does not diligently
defend the action after assumption of the defense, or (iv) such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. If the
indemnifying party shall have assumed the defense of any action brought pursuant
to this Section 8, the indemnified party may not effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened claim, investigation, action or proceeding in respect of which
indemnity or contribution may be or could have been sought, without the prior
written consent of the indemnifying party. No indemnifying party shall, without
the prior written consent of the indemnified parties, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened claim, investigation, action or proceeding in respect of which
indemnity or contribution may be or could have been sought by an indemnified
party under this Section 8 or Section 9 hereof (whether or not the indemnified
party is an actual or potential party thereto), unless (x) such settlement,
compromise or judgment (i) includes an unconditional release of the
28
indemnified party from all liability arising out of such claim, investigation,
action or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or any failure to act, by or on behalf of the indemnified
party, and (y) the indemnifying party confirms in writing its indemnification
obligations hereunder with respect to such settlement, compromise or judgment.
9. Contribution.
(a) In order to provide for contribution in
circumstances in which the indemnification provided for in Section 8 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company, each
Selling Stockholder and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company and each Selling Stockholder, any contribution received by the Company
and/or each Selling Stockholder from persons, other than the Underwriters, who
may also be liable for contribution, including persons who control the Company
and/or the Selling Stockholder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, officers of the Company who
signed the Registration Statement and directors of the Company) as incurred to
which the Company, each Selling Stockholder and one or more of the Underwriters
may be subject, in such proportions as is appropriate to reflect the relative
benefits received by the Company, each Selling Stockholder and the Underwriters
from the Offering or, if such allocation is not permitted by applicable law, in
such proportions as are appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company, each Selling
Stockholder and the Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations.
(b) The relative benefits received by the Company,
each Selling Stockholder and the Underwriters shall be deemed to be in the same
proportion as (i) the total proceeds from the Offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and each Selling Stockholder bear to (ii) the underwriting discount or
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus.
(c) The relative fault of each of the Company, any
Selling Stockholder and of 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 or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholder or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(d) The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 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
29
considerations referred to above in this Section. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 9 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any judicial, regulatory or other legal or
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
(e) Notwithstanding the provisions of this Section 9,
(i) no Underwriter shall be required to contribute any amount in excess of the
amount by which the discounts and commissions applicable to the Shares
underwritten by it and distributed 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 person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 9, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company and any Selling Stockholder, as
applicable, subject in each case to clauses (i) and (ii) of the immediately
preceding sentence. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties, notify each party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 9 or otherwise to the extent that it is not
materially prejudiced as a result thereof. The obligations of the Underwriters
to contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares to be purchased by each of the Underwriters
hereunder and not joint.
10. Underwriter Default.
(a) If any Underwriter or Underwriters shall default
in its or their obligation to purchase Firm Shares or Additional Shares
hereunder, and if the Firm Shares or Additional Shares with respect to which
such default relates (the "Default Shares") do not (after giving effect to
arrangements, if any, made by the Lead Manager pursuant to subsection (b) below)
exceed in the aggregate 10% of the number of Firm Shares or Additional Shares,
each non-defaulting Underwriter, acting severally and not jointly, agrees to
purchase from the Selling Stockholders that number of Default Shares that bears
the same proportion of the total number of Default Shares then being purchased
as the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule II hereto bears to the aggregate number of Firm Shares set forth
opposite the names of the non-defaulting Underwriters, subject, however, to such
adjustments to eliminate fractional shares as the Lead Manager in its sole
discretion shall make.
(b) In the event that the aggregate number of Default
Shares exceeds 10% of the number of Firm Shares or Additional Shares, as the
case may be, the Lead Manager
30
may in its discretion arrange for itself or for another party or parties
(including any non-defaulting Underwriter or Underwriters who so agree) to
purchase the Default Shares on the terms contained herein. In the event that
within five calendar days after such a default the Lead Manager does not arrange
for the purchase of the Default Shares as provided in this Section 10, this
Agreement or, in the case of a default with respect to the Additional Shares,
the obligations of the Underwriters to purchase and of the Selling Stockholders
to sell the Additional Shares shall thereupon terminate, without liability on
the part of the Company with respect thereto (except in each case as provided in
Sections 6, 8, 9, 11 and 12) or the Underwriters, but nothing in this Agreement
shall relieve a defaulting Underwriter or Underwriters of its or their
liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that any Default Shares are to be
purchased by the non-defaulting Underwriters, or are to be purchased by another
party or parties as aforesaid, the Lead Manager or the Company shall have the
right to postpone the Closing Date or Additional Closing Date, as the case may
be for a period, not exceeding five business days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus or in any other documents and arrangements, and the Company agrees to
file promptly any amendment or supplement to the Registration Statement or the
Prospectus which, in the opinion of Underwriters' Counsel, may thereby be made
necessary or advisable. The term "Underwriter" as used in this Agreement shall
include any party substituted under this Section 10 with like effect as if it
had originally been a party to this Agreement with respect to such Firm Shares
and Additional Shares.
11. Survival of Representations and Agreements.
All representations and warranties, covenants and agreements
of the Underwriters, the Company and the Selling Stockholders contained in this
Agreement or in certificates of officers of any Selling Stockholder, the Company
or any Subsidiary submitted pursuant hereto, including the agreements contained
in Section 6, the indemnity agreements contained in Section 8 and the
contribution agreements contained in Section 9, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof or by or on behalf of the
Company or any Selling Stockholder, any of its officers and directors or any
controlling person thereof, and shall survive delivery of and payment for the
Shares to and by the Underwriters. The representations contained in Sections 1
and 2 and the agreements contained in Sections 6, 8, 9, 11 and 12 hereof shall
survive any termination of this Agreement, including termination pursuant to
Section 10 or 12 hereof.
12. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the
execution and delivery of this Agreement. Notwithstanding any termination of
this Agreement, the provisions of this Section 12 and of Sections 1, 2, 6, 8, 9,
11 and 13 through 18, inclusive, shall remain in full force and effect at all
times after the execution hereof.
(b) The Lead Manager shall have the right to
terminate this Agreement at any time prior to the Closing Date or to terminate
the obligations of the Underwriters to
31
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (i) any domestic or international event or act or
occurrence has materially disrupted, or in the opinion of the Lead Manager will
in the immediate future materially disrupt, the market for the Company's
securities or securities in general; or (ii) trading on The New York Stock
Exchange ("the NYSE") or The Nasdaq National Market (the "Nasdaq") shall have
been suspended or been made subject to material limitations, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, on the NYSE or the Nasdaq or by order
of the Commission or any other governmental authority having jurisdiction; or
(iii) a banking moratorium has been declared by any state or federal authority
or if any material disruption in commercial banking or securities settlement or
clearance services shall have occurred; or (iv) (A) there shall have occurred
any outbreak or escalation of hostilities or acts of terrorism involving the
United States or there is a declaration of a national emergency or war by the
United States or (B) there shall have been any other calamity or crisis or any
change in political, financial or economic conditions if the effect of any such
event in (A) or (B), in the judgment of the Lead Manager, makes it impracticable
or inadvisable to proceed with the offering, sale and delivery of the Firm
Shares or the Additional Shares, as the case may be, on the terms and in the
manner contemplated by the Prospectus.
(c) Any notice of termination pursuant to this
Section 12 shall be in writing.
(d) If this Agreement shall be terminated pursuant to
any of the provisions hereof (other than pursuant to (i) notification by the
Lead Manager as provided in Section 10(b) hereof), or if the sale of the Shares
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth herein is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by the
Lead Manager, reimburse the Underwriters for all out-of-pocket expenses
(including the reasonable fees and expenses of their counsel), incurred by the
Underwriters in connection herewith.
13. Notices.
All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed,
delivered, or faxed and confirmed in writing, to such Underwriter c/o Bear,
Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Parish, Senior Managing Director, Equity Capital Markets, with a copy to
Underwriter's Counsel at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Xxxx X. Xxxxx, III.
(b) if sent to a Selling Stockholder, shall be
mailed, delivered or faxed and confirmed in writing to such Selling Stockholder
at the address set forth next to such Selling Stockholder's name on Schedule I,
with copies to Xxxxxx Xxxxxxx PLLC, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: J. Xxxxxxx Xxxxxxx and McGuireWoods LLP, One Xxxxx Center, 000
Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxxx;
32
(c) if sent to the Company, shall be mailed,
delivered, or faxed and confirmed in writing to the Company at the addresses set
forth in the Registration Statement, Attention: Xxxxxxxxx X. Xxxxxxx XX, with a
copy to Xxxxxx Xxxxxxx PLLC, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: J. Xxxxxxx Xxxxxxx;
provided, however, that any notice to an Underwriter pursuant to Section 8 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to Bear Xxxxxxx, which address
will be supplied to any other party hereto by Bear Xxxxxxx upon request. Any
such notices and other communications shall take effect at the time of receipt
thereof.
14. Parties.
This Agreement shall inure solely to the benefit of, and shall
be binding upon, the Underwriters, the Selling Stockholders and the Company and
the controlling persons, directors, officers, employees and agents referred to
in Sections 8 and 9 hereof, and their respective successors and assigns, and no
other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and said controlling persons and their respective successors, officers,
directors, heirs and legal representatives, and it is not for the benefit of any
other person, firm or corporation. The term "successors and assigns" shall not
include a purchaser, in its capacity as such, of Shares from any of the
Underwriters.
15. Governing Law and Jurisdiction; Waiver of Jury Trial.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company and each Selling
Stockholder irrevocably (a) submits to the jurisdiction of any court of the
State of New York or the United State District Court for the Southern District
of the State of New York for the purpose of any suit, action, or other
proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus (each, a "Proceeding"), (b) agrees that all claims in respect of any
Proceeding may be heard and determined in any such court, (c) waives, to the
fullest extent permitted by law, any immunity from jurisdiction of any such
court or from any legal process therein, (d) agrees not to commence any
Proceeding other than in such courts, and (e) waives, to the fullest extent
permitted by law, any claim that such Proceeding is brought in an inconvenient
forum. THE COMPANY AND EACH SELLING STOCKHOLDER (ON BEHALF OF THEMSELVES AND, TO
THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF THEIR RESPECTIVE EQUITY
HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION
STATEMENT AND THE PROSPECTUS.
33
16. Counterparts.
This Agreement may be executed 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. Delivery of a signed
counterpart of this Agreement by facsimile transmission shall constitute valid
and sufficient delivery thereof.
17. Headings.
The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
18. Time is of the Essence.
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.
19. Continuation of Registration Rights Agreement.
Nothing in this Agreement shall be deemed to terminate any of
the rights or responsibilities of the parties to the Registration Rights
Agreement. The rights and responsibilities of the Company and the Selling
Stockholders hereunder are in addition to, and not in substitution for, the
rights and responsibilities of the Company and the Selling Stockholders under
the Registration Rights Agreement.
[signature page follows]
34
If the foregoing correctly sets forth your understanding,
please so indicate in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement among us.
Very truly yours,
ASSET ACCEPTANCE CAPITAL CORP.
By: _______________________________________
Name:
Title:
AAC Quad-C, Investors LLC
By: _______________________________________
Name:
Title:
The Selling Shareholders named in Schedule
I hereto (other than AAC Quad-C, Investors
LLC), acting severally
By: _______________________________________
Name:
Title: Power of Attorney
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & COMPANY, L.L.C.
CIBC WORLD MARKETS CORP.
SUNTRUST CAPITAL MARKETS, INC.
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
C/O BEAR, XXXXXXX & CO., INC.
By: BEAR, XXXXXXX & CO. INC.
By: ___________________________________
Name:
Title:
On behalf of itself and the other Underwriters named in Schedule II hereto.
SCHEDULE I
Number of Maximum Number
Name Firm Shares of Additional Shares Address
-------------------------------------- ----------- -------------------- -------------------------
AAC Quad-C Investors LLC 3,162,541 485,000 000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx
Xxxxx X. Xxxxxxx, Xx. Trust 620,000 95,000 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxxx Revocable Living Trust 680,000 105,000 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxx Revocable Living 435,000 0 00000 Xxx Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxx V Trust 0 30,000 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxxxx Trust 0 30,000 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx Irrevocable Trust 0 5,000 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxx Revocable Living Trust 40,000 0 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx 7,500 0 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxx X'Xxxxx 6,210 0 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxx 14,900 0 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxx 2,484 0 0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxx X. Xxxx 2,733 0 00000 Xxxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxxx 9,700 0 00000 Xxxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 8,816 0 00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx 8,257 0 0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx 1,437 0 0000 Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Xxxxxx Xxxxxxx 422 0 00000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
TOTAL 5,000,000 750,000
S-I-1
SCHEDULE II
Number of Additional
Total Number of Firm Shares to be Purchased if
Underwriter Shares to be Purchased Option is Fully Exercised
----------- ---------------------- -------------------------
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
CIBC World Markets Corp.
SunTrust Capital Markets, Inc.
Total.................. --------- -------
5,000,000 750,000
S-II-1
SCHEDULE III
Xxxxx X. Xxxxxxx, Xx.
Xxxxxxx Xxxxxxx
Xxxxxxxxx X. Xxxxxxx XX
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
H. Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxx
AAC Quad-C Investors LLC
Xxxxx X. Xxxxxxx Xx., Revocable Living Trust
Xxxxxxx Xxxxxxx, Revocable Living Trust
Xxxxxxx Xxxxxxx Irrevocable Trust - 2003
Xxxxxx Xxxxx Xxxxxxx Trust - 1999
Xxxxx Xxxxxxx Xxxxx Trust - 1999
Xxxxx X. Xxxxxxx Trust - 1999
Xxxx X. Xxxxxxx Trust - 1999
Xxxxxxx Irrevocable Trust - 2003
Xxxxx X. Xxxxxxx Irrevocable Trust 2003
Xxxxxxxxx X. Xxxxxxx V Irrevocable Trust 2003
Xxxxxxxxx X. Xxxxxxx XX Revocable Living Trust
Xxxx X. Xxxxxx Revocable Living Trust, dated October 22, 2001
S-III-1
EXHIBIT A
Subsidiaries of Asset Acceptance Capital Corp.
Name Jurisdiction
------------------------------------------ ------------
AAC Investors, Inc. Virginia
Asset Acceptance Holdings LLC Delaware
Asset Acceptance, LLC Delaware
Consumer Credit, LLC Delaware
RBR Holding Corp (f/k/a AAC Holding Corp.) Nevada
Rx Acquisitions, LLC Delaware
E-A-1
EXHIBIT B
Custody Agreement and Power of Attorney
A-A-1
ANNEX I
Form of Opinion of Company Counsel
A-I-1
ANNEX II
Form of Opinions of Selling Stockholder's Counsel
A-II-1
ANNEX III
Form of Opinion of Xxxxxx Xxxx, General Counsel
A-III-1
