EXHIBIT 1.1
Hibbett Sporting Goods, Inc.
_____________ Shares
Common Stock
($0.01 par value)
Underwriting Agreement
____________, 2002
[Underwriter]
[Address]
Ladies and Gentlemen:
Certain stockholders of Hibbett Sporting Goods, Inc., a Delaware
corporation (the "Company"), named in Schedule II hereto (the "Selling
Stockholders") severally and not jointly propose, subject to the terms and
conditions stated herein, to sell to the several Underwriters named in Schedule
I hereto (the "Underwriters"), an aggregate of _________ shares of the Company's
Common Stock, par value $0.01 per share (the "Common Stock"), each Selling
Stockholder selling the number of shares set forth opposite such Selling
Stockholder's name in Schedule II hereto. The aggregate of _________ shares to
be purchased from the Selling Stockholders are called the "Shares." To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representative as used herein shall mean you, as Underwriters, and the
terms Representative and Underwriters shall mean either the singular or plural
as the context requires. Any reference herein to the Registration Statement or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the Issue Date of the Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment," or "supplement" with respect
to the Registration Statement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement, or the Issue Date of the Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. REPRESENTATIONS AND WARRANTIES.
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Page 2
(a) The Company represents and warrants to, and agrees with,
each Underwriter as set forth below in this Section 1.
(1) The Company meets the requirements for use of
Form S-3 and has filed with the Commission a registration
statement (File No. 333-73962) on such form, including a
related prospectus, for the registration under the Act of the
Shares and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations under
the Act. The Company will file with the Commission a
prospectus supplement in accordance with Rule 424(b). The
Company has included in the registration statement, as amended
at the Effective Date, all information required by the Act and
the rules thereunder to be included in such registration
statement and the Prospectus.
(2) On the Effective Date, the Registration Statement
did, and when the Prospectus Supplement is first filed in
accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Prospectus (and any supplements thereto)
will, conform in all material respects with the applicable
requirements of the Act, the Exchange Act and the rules
thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, when the
Prospectus Supplement is first filed in accordance with Rule
424(b) and on the Closing Date, the Prospectus (together with
any supplement thereto) will not, contain any untrue statement
of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
PROVIDED, however, that the Company makes no representations
or warranties as to the information contained in or omitted
from the Registration Statement, or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished herein or in writing to the Company by
or on behalf of any Underwriter through the Representative
specifically for inclusion in the Registration Statement or
the Prospectus (or any supplement thereto).
(3) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a
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Page 3
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(4) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware with full corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus, and is duly
registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to
register or qualify or be in good standing does not have a
material adverse effect on the condition (financial or other),
business, earnings, properties, net worth or results of
operations of the Company and its Subsidiaries (as hereinafter
defined) taken as a whole (a "Material Adverse Effect").
(5) All the Company's subsidiaries (as defined in the
Act) are referred to herein individually as a "Subsidiary" and
collectively as the "Subsidiaries." Each Subsidiary is a
corporation duly organized, validly existing and in good
standing in the jurisdiction of its incorporation, with full
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus, and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its
business requires such registration or qualification, except
where the failure so to register or qualify or be in good
standing does not have a Material Adverse Effect. None of the
Inactive Subsidiaries is engaged in any business activities or
operations or has any material assets or liabilities. All the
outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and (except for directors'
qualifying shares or similar interests) are wholly owned by
the Company directly or indirectly through one of the other
Subsidiaries, free and clear of any lien, adverse claim,
security interest, equity or other encumbrance, except as
described in the Prospectus.
(6) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been a Material Adverse Effect,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Registration Statement and Prospectus, and since such
dates, except in the ordinary course of business, neither the
Company nor any of its Subsidiaries has entered into any
material transaction not referred to in the Registration
Statement and the Prospectus.
(7) This Agreement has been duly authorized, executed
and delivered by the Company.
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(8) The Company has an authorized capitalization as
set forth in "Description of Capital Stock" of the Company's
Registration Statement on Form S-1 (File No. 333-36913), as
amended (the "S-1"), and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and conform to
the description of the Stock contained in the S-1; and all of
the issued shares of capital stock of each Subsidiary of the
Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(9) The Company is not and, after giving effect to
the offering, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended.
(10) No consent, approval, authorization, filing with
or order of any court or governmental agency or body is
required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and
such as may be required under the state securities laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters in the manner
contemplated herein and in the Prospectus.
(11) Neither the issue and sale of the Shares nor the
execution, delivery and performance of this Agreement will
conflict with, result in a breach, default or violation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries
pursuant to, (i) the charter or by-laws of the Company or any
of its Subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant
or instrument to which the Company or any of its Subsidiaries
is a party or bound or to which itsor their property is
subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of
its Subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its
Subsidiaries or any of its or their properties, except any
conflict, breach, default, violation or imposition that
individually or in the aggregate would not have a Material
Adverse Effect.
(12) There are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company or to include any securities of the
Company in any registration statement of the Company.
(13) The consolidated financial statements and the
related schedules and notes of the Company and its
consolidated Subsidiaries included or incorporated by
reference in the Prospectus and the Registration Statement
present fairly the consolidated financial condition, results
of operations and cash flows of the Company as of the dates
and for the
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periods indicated, comply as to form with the applicable
accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The selected financial
data set forth under the caption "Selected Summary
Consolidated Financial and Operating Data" in the Prospectus
and Registration Statement fairly present, on the basis stated
in the Prospectus and the Registration Statement, the
information included therein. The other financial and
statistical information and data set forth or incorporated by
reference in the Registration Statement and Prospectus are, in
all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books
and records of the Company. No other financial statements,
supporting schedules or other financial information (whether
pro forma financial statements or otherwise) are required to
be included in the Registration Statement or Prospectus. As of
the date of the Prospectus, the Company is not engaged in
substantive discussions with any third party with respect to,
or obligated to complete, any acquisitions for which
disclosure of pro forma financial information in the
Prospectus is required by the Act.
(14) No action, suit or proceeding by or before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries or
its or their property is pending or, to the best knowledge of
the Company, threatened that is required to be described in
the Registration Statement or Prospectus and is not so
described; nor are there any statutes, rules, regulations,
laws, orders, decrees, judgments, contracts, instruments or
other documents or agreements that are required to be
described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement that are not
so described or filed as required.
(15) The Company and its 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, encumbrances and
defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be
made of such property by the Company and its Subsidiaries or
such as do not and would not, individually or in the
aggregate, have a Material Adverse Effect; and any real
property and buildings held under lease by the Company and its
Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material
and do not materially interfere with the use made and proposed
to be made of such property and buildings by the Company and
its Subsidiaries or such as do not and would not, individually
or in the aggregate, have a Material Adverse Effect.
(16) Neither the Company nor any Subsidiary is in
violation or default of (i) any provision of its charter or
bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation,
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condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree of
any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or such Subsidiary or any of its
properties, as applicable, except such violations or defaults
that, individually or in the aggregate, would not have a
Material Adverse Effect or that are disclosed in the
Prospectus (or any supplement thereto).
(17) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company and its consolidated
Subsidiaries and delivered their report with respect to the
audited consolidated financial statements and schedules
included or incorporated by reference in the Prospectus, are
independent public accountants with respect to the Company
within the meaning of the Act and the applicable published
rules and regulations thereunder.
(18) The Company has filed all foreign, federal,
state and local tax returns that are required to be filed or
has requested extensions thereof (except in any case in which
the failure so to file would not have a Material Adverse
Effect), except as set forth in or contemplated in the
Prospectus and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it,
to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a
Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus.
(19) There is (i) no significant unfair labor
practice complaint pending against the Company or any of its
Subsidiaries or, to the best knowledge of the Company,
threatened against any of them, before the National Labor
Relations Board or any state or local labor relations board or
in any federal or state court and (ii) no significant strike,
labor dispute, slowdown or stoppage pending against the
Company or any of its Subsidiaries or, to the best knowledge
of the Company, threatened against any of them, except for
such actions specified in clause (i) or (ii) above which,
individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(20) The Company and each of its Subsidiaries are
insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are
engaged; all policies of insurance insuring the Company or any
of its Subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and
effect; the Company and its Subsidiaries are in compliance
with the terms of such policies and instruments in all
material respects; and there are no claims by the Company or
any of its Subsidiaries under any such policy or instrument as
to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the
Company nor any
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such Subsidiary has been refused any insurance coverage sought
or applied for; and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect, whether or
not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Prospectus.
(21) The Company and its Subsidiaries possess all
licenses, certificates, permits and other authorizations
issued by the appropriate federal, state, local or foreign
regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such Subsidiary
has received any notice of proceedings relating to the
revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus.
(22) The Company and each of its Subsidiaries
maintain a system of internal accounting controls sufficient
to provide reasonable assurance 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
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any
differences.
(23) The Company has not taken, directly or
indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under
the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(24) Neither the Company nor any of its Subsidiaries
has violated any applicable existing federal, state or local
laws, statutes, rules or regulations, including, but not
limited to, (i) any federal, state or local law or regulation
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws") or (ii) any
provisions of the Employee Retirement Income Security Act and
the rules and regulations promulgated thereunder, except for
such violations which, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(25) The Company and the Subsidiaries own or possess
all patents, trademarks, trademark registrations, service
marks, service xxxx registrations, trade
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names, copyrights, licenses, inventions, domain names,
computer programs, know-how (including, without limitation,
trade secrets and other unpatented or unpatentable proprietary
or confidential information, systems or procedures)
(collectively "Intellectual Property") described in the
Prospectus as being owned by any of them or currently used by
them in the conduct of their respective businesses, and the
Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and
the Subsidiaries with respect to the foregoing, except for
such Intellectual Property which, individually or in the
aggregate, would not have a Material Adverse Effect. To its
knowledge, neither the Company nor any of its Subsidiaries is
infringing or otherwise violating any Intellectual Property of
others or has received any notice of infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property.
(b) Each Selling Stockholder hereby represents and warrants, severally
as to itself and not jointly, to each Underwriter on the date hereof, and shall
be deemed to represent and warrant to each Underwriter on the Closing Date (as
defined below), that:
(1) Such Selling Stockholder is a validly existing entity
under the laws of the jurisdiction of its respective organization, has
the power and authority to own its property and to conduct its business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification. Such Selling Stockholder is the lawful
owner of the Shares to be sold by such Selling Stockholder pursuant to
this Agreement and has, and on the Closing Date will have, good and
valid title to such Shares, free of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims
whatsoever.
(2) Such Selling Stockholder has, and on the Closing Date will
have, full legal right, power and authority, and all authorization and
approval required by law, to enter into (i) this Agreement, (ii) the
Custody Agreement signed by such Selling Stockholder and
______________, as custodian (the "Custodian"), relating to the deposit
of the Shares to be sold by such Selling Stockholder (the "Custody
Agreement") and (iii) the Power of Attorney appointing certain
individuals named therein as such Selling Stockholder's
attorneys-in-fact (the "Attorneys") to the extent set forth therein
relating to the transactions contemplated hereby and by the Prospectus
(the "Power of Attorney") to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder in the manner provided
herein.
(3) Each of this Agreement, the Custody Agreement and Power of
Attorney of such Selling Stockholder has been duly authorized, executed
and delivered by such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder, enforceable as to such Selling
Stockholder in accordance with its terms, except to the extent
enforceability may be limited by (i) the application of bankruptcy,
reorganization, insolvency and other laws affecting creditors' rights
generally and (ii) equitable
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principles being applied at the discretion of a court before which a
proceeding may be brought, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities
laws.
(4) None of the sale of the Shares by such Selling
Stockholder, the execution, delivery or performance by such Selling
Stockholder of this Agreement, the Custody Agreement and Power of
Attorney of such Selling Stockholder by or on behalf of such Selling
Stockholder, the compliance by such Selling Stockholder with all the
provisions hereof and thereof nor the consummation by such Selling
Stockholder of the transactions contemplated hereby and thereby (i)
requires any consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body or
administrative agency or other governmental body, agency or official
(except such as may be required under the securities or Blue Sky lawsof
the various states), (ii) conflicts with or will conflict with or
constitutes or will constitute a breach of or a default under, the
organizational documents of such Selling Stockholder, if such Selling
Stockholder is not an individual, or any agreement, indenture, lease or
other instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or any property of such Selling
Stockholder is bound or (iii) violates any statute, law, regulation,
ruling, filing, judgment, injunction, order or decree applicable to
such Selling Stockholder or any property of such Selling Stockholder.
(5) The information in the Prospectus under the caption
"Selling Stockholders" that specifically relates to such Selling
Stockholder does not, and will not on the Closing Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(6) At any time prior to the Closing Date, if there is any
change in the information referred to in Section 1(b)(5) hereof, such
Selling Stockholder will immediately notify the Representative of such
change.
(7) Other than excepted activity pursuant to Regulation M
under the Exchange Act, such Selling Stockholder has not taken and will
not take, directly or indirectly, any action that constituted, or any
action designed to, or that might reasonably be expected to cause or
result in or constitute, under the Act or otherwise, stabilization or
manipulation of the price of the Common Stock to facilitate the sale or
resale of the Shares, except for the lock-up agreements described in
Section 6(h) hereof.
(8) Upon delivery of and payment for the Shares to be sold by
such Selling Stockholder pursuant to this Agreement, good and valid
title to such Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security interests,
equities and claims whatsoever.
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(9) 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 contemplated by this Agreement.
(10) Such Selling Stockholder has no knowledge and no reason
to believe that the Registration Statement and the Prospectus
(including any supplement thereto) contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Any certificate signed by any officer of the Company or Selling
Stockholder and delivered to the Representative or counsel for the Underwriters
in connection with the offering of the Shares shall be deemed a representation
and warranty by the Company or Selling Stockholder, as the case may be, as to
matters covered thereby, to each Underwriter.
2. PURCHASE AND SALE. The Selling Stockholders hereby agree, severally
and not jointly, to sell the Shares, each Selling Stockholder selling the number
of Shares set forth opposite such Selling Stockholder's name on Schedule II
hereto, to the Underwriters and, upon the basis of representations, warranties
and agreements of the Selling Stockholders herein contained and subject to all
the terms and conditions set forth herein, each Underwriter agrees, severally
and not jointly,to purchase from the Selling Stockholders at a purchase price of
$[___] per Share (the "purchase price per Share"), the number of Shares set
forth opposite the name of such Underwriter in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Shares shall
be made at 10:00 AM, New York City time, on ____________, 2002, or at such time
on such later date not more than three Business Days after the foregoing date as
the Representative shall designate, which date and time may be postponed by
agreement between the Representative, the Company and the Selling Stockholders
(such date and time of delivery and payment for the Shares being herein called
the "Closing Date"). Delivery of the Shares shall be made to the Representative
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representative of the purchase price thereof to
or upon the order of the Selling Stockholders by wire transfer payable in
same-day funds to accounts specified by the Selling Stockholders. Delivery of
the Shares shall be made through the facilities of The Depository Trust Company
unless the Representative shall otherwise specify.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Shares for sale to the public as set forth in
the Prospectus.
5. AGREEMENTS.
(a) The Company agrees with the several Underwriters that:
(1) Prior to the termination of the offering of the Shares, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus or
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any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object, and will use its reasonable best efforts to cause
any such amendment to become effective. Subject to the foregoing
sentence, the Company will cause the Prospectus Supplement, properly
completed, and any further supplement to the Prospectus to be filed
with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representative of such timely filing. The
Company will promptly advise the Representative (1) when the
Prospectus Supplement, and any further supplement to the Prospectus,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed (if required) with the Commission, (2) when, prior
to termination of the offering of the Shares, any amendment to the
Registration Statement shall have been filed or become effective,
(3) of any request by the Commission orits staff for any amendment
of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Prospectus or for any
additional information, (4) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (5) 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 institution or
threatening of any proceeding for such purpose. If at any time the
Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, the Company will use its reasonable
best efforts to obtain as soon as possible the withdrawal or lifting
thereof.
(2) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result
of which, in the opinion of counsel for the Company or of counsel
for the Underwriters, the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement or
supplement the Prospectus to comply with the Act or the rules
thereunder, the Company promptly will (1) notify the Representative
of any such event; (2) prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or
omission or effect such compliance; and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(3) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
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(4) The Company will furnish to the Representative and counsel
for the Underwriters signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of the Prospectus and any
supplement thereto as the Representative may reasonably request.
(5) The Company will arrange, if necessary, for the
qualification of the Shares for sale under the laws of such
jurisdictions as the Representative may designate and will maintain
such qualifications in effect so long as required for the
distribution of the Shares; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising
out of the offering or sale of the Shares, in any jurisdiction where
it is not now so subject.
(6) The Company will not, without the prior written consent of
______________, for a period of ________ following the Execution
Time, offer, sell or contract to sell, or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably
be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate of the Company or any
person in privity with the Company or any affiliate of the Company)
directly or indirectly, or announce the offering of, any other
shares of Common Stock or any securities convertible into, or
exchangeable for, shares of Common Stock; PROVIDED, HOWEVER, that
the Company may (i) issue and sell Common Stock pursuant to any
employee stock option plan, stock purchase plan, stock ownership
plan or dividend reinvestment plan of the Company in effect at the
Execution Time, (ii) issue Common Stock issuable upon the conversion
of securities or the exercise of warrants outstanding at the
Execution Time and (iii) grant options to purchase shares of Common
Stock under the Company's employee stock option plan and stock
purchase plans.
(7) Except as stated in this Agreement or the Prospectus, the
Company will not take, directly or indirectly, any action designed
to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(8) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), the
Prospectus, and each amendment or supplement thereto; (ii) the
printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such
copies of the Registration Statement, the Prospectus,
3
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Page 13
and all amendments or supplements thereto, as may, in each case, be
reasonably requested for use in connection with the offering and
sale of the Shares; (iii) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Shares; (iv) the registration of
the Shares under the Exchange Act and the listing of the Shares on
the Nasdaq National Market; (v) any registration or qualification of
the Shares for offer and sale under the securities or blue sky laws
of the several states (including filing fees and the reasonable fees
and expenses of counsel for the Underwriters relating to such
registration and qualification); (vi) any filings required to be
made with the National Association of Securities Dealers, Inc.
(including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such filings); (vii) the
fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the
Company; and (viii) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
(9) The Company, during the period when the prospectus is
required to be delivered under the Act or the Exchange Act, will
file all documents required to be filed with the Commission pursuant
to the Exchange Act within the time periods required by the Exchange
Act and the regulations thereunder.
(10) The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
(b) Each Selling Stockholder covenants and agrees with the several
Underwriters as follows:
(1) Such Selling Stockholder will review the Prospectus and will
comply with all agreements and satisfy all conditions on its part to
be complied with or satisfied pursuant to this Agreement on or prior
to the Closing Date and will advise the Underwriters prior to the
Closing Date if any statements to be made on behalf of such Selling
Stockholder in the certificate contemplated by Section 6(j) hereof
would be inaccurate if made as of the Closing Date.
(2) On the Closing Date, all stock transfer and other taxes
(other than income taxes) that are required to be paid in connection
with the sale and transfer of the Shares to be sold by such Selling
Stockholder to the Underwriters hereunder will have been fully paid
for by such Selling Stockholder and all laws imposing such taxes
will have been fully complied with.
(3) In order to document the Underwriter's compliance with the
reporting and withholding provisions of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations promulgated
thereunder, with respect to the transactions
4
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Page 14
herein contemplated, such Selling Stockholder shall deliver to you
at least two days prior to the Closing Date a properly completed and
executed United States Treasury Department Substitute Form W-9.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Shares shall be subject to the
accuracy of the representations and warranties on the part of the Company and
Selling Stockholders contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company and Selling Stockholders
made in any certificates pursuant to the provisions hereof, to the performance
by the Company and Selling Stockholders of their obligations hereunder and to
the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by such Rule; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representative the
opinion of Xxxxxx & Xxxxxxx, counsel for the Company and the Selling
Stockholders, dated the Closing Date and addressed to the
Representative, substantially in the form of Exhibit B.
(c) The Representative shall have received from
________________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the
Representative, with respect to the issuance and sale of the Shares,
the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Representative
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters. The opinion or opinions of such
counsel shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(d) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board,
Chief Executive Officer, Senior Vice President or Vice President and
the principal financial or accounting officer of the Company, dated
the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus,
any supplements to the Prospectus and this Agreement and that: (i)
as of the Effective Date, the statements made in the Registration
Statement and the Prospectus were true and correct and neither the
Registration Statement nor the Prospectus omitted to state any
material fact required to be stated therein or necessary in order to
make the statements therein, respectively, not misleading, (ii)
since the Effective Date, no event has occurred which should have
been set forth in a supplement or amendment to the Prospectus which
has not been set forth in such a supplement or amendment, (iii)
since the respective dates as of which information is given in the
Registration Statement in the form in which it originally became
effective and the Prospectus contained therein, there has not been
any material adverse
5
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Page 15
change or any development involving a prospective material adverse
change in or affecting the business, properties, financial condition
or results of operations of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary
course of business, and, since such dates, except in the ordinary
course of business, neither the Company nor any of its subsidiaries
has entered into any material transaction not referred to in the
Registration Statement in the form in which it originally became
effective and the Prospectus contained therein, (iv) neither the
Company nor any of its subsidiaries has any material contingent
obligations which are not disclosed in the Registration Statement
and the Prospectus, and (v) the representations and warranties of
the Company herein are true and correct in all material respects as
of the Closing Date.
(e) At the Execution Time and at the Closing Date, Xxxxxx
Xxxxxxxx LLP shall have furnished to the Representative letters,
dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the Representative,
confirming that they are independent public accountants with respect
to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder and stating in effect
that:
(1) in their opinion the audited financial statements and
financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(2) on the basis of a reading of the amounts included or
incorporated in the Registration Statement and the Prospectus in
response to Item 301 of Regulation S-K and a reading of the
latest unaudited financial statements made available by the
Company and its Subsidiaries; their limited review, in
accordance with standards established under Statement on
Auditing Standards No. 71, of the unaudited interim financial
information for the 39-week period ended November 3, 2001, and
as of November 3, 2001; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and committees of the Board of Directors
of the Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its Subsidiaries as to
transactions and events subsequent to February 3, 2001, nothing
came to their attention which caused them to believe that:
(i) the amounts in the "Selected Summary Consolidated
Financial and Operating Data," if any, included or
incorporated in the Registration Statement and the
Prospectus do not agree with the corresponding amounts in
the audited financial statements from which such amounts
were derived;
6
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Page 16
(ii) any unaudited financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act
and with the published rules and regulations of the
Commission with respect to registration statements on Form
S-3 or financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and
said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) with respect to the period subsequent to the date
of the most recent financial statements (other than capsule
information), audited or unaudited, in or incorporated in
the Registration Statement and the Prospectus, there were
any changes, at a specified date not more than five days
prior to the date of the letter, in the long-term debt due
within one year and long-term debt (exclusive of current
portion) of the Company and its Subsidiaries or capital
stock of the Company or decreases in the shareholders'
equity of the Company and its consolidated Subsidiaries, as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus, or for the period
from the date of the most recent financial statements
included or incorporated in the Registration Statement and
the Prospectus to the date of the most recently available
monthly unaudited financial information there were any
decreases relating to continuing operations, as compared
with the corresponding period in the preceding year in total
revenues or income before income taxes or in total or per
share amounts of net income of the Company and its
Subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not
deemed necessary by the Representative; or
(iv) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement or Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited financial statements included or incorporated in the
Registration Statement and the Prospectus;
(3) they have performed certain other specified procedures
as a result of which they determined that certain information of
an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from
the general accounting records of the Company and its
Subsidiaries) set forth in the
7
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Page 17
Registration Statement and the Prospectus, including the
information included or incorporated in the Company's Annual
Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus and the information included in the
"Management's Discussion and Analysis of Financial Condition and
Results of Operation" included or incorporated in the Company's
Quarterly Reports on Form 10-Q incorporated in the Registration
Statement and the Prospectus, agrees with the accounting records
of the Company and its Subsidiaries, excluding any questions of
legal interpretation.
References to the Prospectus in this paragraph (e) include
any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time 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, other than the Prospectus Supplement),
there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6
or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Prospectus (exclusive of any supplement thereto, other than
the Prospectus Supplement) the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the sole judgment of the
Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Shares
as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto, other than the Prospectus Supplement).
(g) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of
a possible change in any such rating that does not indicate the
direction of the possible change.
(h) At the Execution Time, the Company shall have furnished to
the Representative a letter substantially in the form of Exhibit A
hereto from ___________________.
(i) You shall be satisfied that, and you shall have received a
certificate dated the Closing Date, from each Selling Stockholder to
the effect that, as of the Closing Date: (i) the representations and
warranties made by such Selling Stockholder herein are true and
correct in all material respects on the Closing Date, and (ii) such
Seller Stockholder has complied with all obligations and satisfied
all conditions that are required to be performed or satisfied on its
part at or prior to the Closing Date.
8
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Page 18
(j) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representative such further
information, certificates and documents as the Representative may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representative and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representative. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of _______________, counsel for the Underwriters, at
___________________, on the Closing Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Shares provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of anytermination pursuant to Section 10 hereof 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 other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representative on demand for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Shares.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
such indemnified parties or any of them may become subject under the
Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (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 in any amendment thereof, or in 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, and agree
to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability
or action; PROVIDED, HOWEVER, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Company by or on
9
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Page 19
behalf of any Underwriter through the Representative specifically
for inclusion therein; PROVIDED, HOWEVER, that the indemnification
contained in this paragraph (a) with respect to the Registration
Statement or the Prospectus shall not inure to the benefit of any
Underwriter on account of any such loss, claim, damage, liability or
expense arising from the sale of Shares by such Underwriter to any
person if a copy of the Prospectus shall not have been delivered or
sent to such person within the time required by the Act and the
regulations thereunder, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact
contained in the Registration Statement or the Prospectus was
corrected in the Prospectus, provided that the Company has delivered
the Prospectus to the several Underwriters in requisite quantity on
a timely basis to permit such delivery or sending. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Selling Stockholder severally and not jointly agrees to
indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of either the Act or
the Exchange Act to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
information relating to such Selling Stockholder furnished in
writing by or on behalf of such Selling Stockholder specifically for
inclusion in the documents referred to in the foregoing indemnity.
The Underwriter acknowledges and agrees that for all purposes under
this Agreement that the statements set forth under the caption
"Selling Stockholders" in the Prospectus (or any amendment or
supplement thereto), as such statement relates to each Selling
Stockholder, constitute the only written information furnished to
the Company by such Selling Stockholder expressly for use in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto). This indemnity agreement will be in addition to
any liability which any Selling Stockholder may otherwise have.
(c) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each
of its officers who signs the Registration Statement, each of the
Selling Stockholders and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and each Selling
Stockholder to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by
or on behalf of such Underwriter through the Representative
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent the indemnifying party is materially prejudiced by such
failure and (ii) will not, in any event, relieve
_______________, 2002
Page 20
the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties
except as set forth below); PROVIDED, HOWEVER, that such counsel
shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel
to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, each indemnifying
party severally agrees to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which such indemnifying party may
be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party on the one
hand and by the indemnified party on the other from the offering of
the Shares; PROVIDED, HOWEVER, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
relating to the offering of the Shares) be responsible for any
amount in excess of the underwriting discount or commission
applicable to the Shares purchased by such Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Selling Stockholders
and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but
also the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions
which resulted in such
_______________, 2002
Page 21
Losses as well as any other relevant equitable considerations. The
relative benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses) received by the Selling Stockholders, the relative
benefits received by each Selling Stockholders shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses) received by such Selling Stockholder, and the relative
benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Prospectus or in any supplement
thereto. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company, the
Selling Stockholders or the Underwriters, the intent of the parties
and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The
Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not
take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (e), no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have
the same rights to contribution as such Underwriter, each person who
controls the Company within the meaning of either the Act or 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 each person who
controls a Selling Stockholder within the meaning of either the Act
or the Exchange Act and each director, officer, employee and agent
of a Selling Stockholder shall have the same rights to contribution
as each Selling Stockholder, subject in each case to the applicable
terms and conditions of this paragraph (e).
(f) Notwithstanding any other provision of this Section 8, the
aggregate liability of each of the Selling Stockholders for any and
all losses, claims, damages or liabilities (including, without
limitation, all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, including the fees and expenses of counsel to any
indemnified person) pursuant to this Section 8 is limited to an
amount equal to the total net proceeds from the sale of the Shares
actually received by such Selling Stockholder.
9. [intentionally deleted].
10. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given to the Company
and Selling Stockholders prior to delivery of and payment for the Shares, if at
any time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the Nasdaq National Market or trading in
securities
_______________, 2002
Page 22
generally on the New York Stock Exchange or the Nasdaq National Market shall
have been suspended or limited or minimum prices shall have been established on
either of such Exchange or National Market, (ii) a banking moratorium shall have
been declared either by federal or New York State authorities, (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representative, impractical or inadvisable to proceed with the offering
or delivery of the Shares as contemplated by the Prospectus (exclusive of any
supplement thereto, other than the Prospectus Supplement) or (iv) any action
shall have been taken by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in the Underwriters' reasonable
opinion has a material adverse effect on the securities markets in the United
States. If this Agreement is terminated pursuant to this Section 10, there shall
be no liability of the Company or the Selling Stockholders to the Underwriters
and no liability of the Underwriters to the Company or the Selling Stockholders;
provided, HOWEVER, that in the event of any such termination, the Company agrees
to indemnify and hold harmless the Underwriters from all costs and expenses
incident to the performance of the obligations of the Company under this
Agreement, including all costs and expenses referred to in Section 5(a)(8)
hereof.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, the Selling Stockholders and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter,
the Company or the Selling Stockholders or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Shares. The provisions of Section 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telefaxed to the _________________, Attention: _______________; and
________________, Attention: _______________; if sent to the Company, will be
mailed, delivered or telefaxed to (000) 000-0000 and confirmed to it at 000
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxx Xxxxx; or, if sent
to the Selling Stockholders, to the address set forth in the Custody Agreement
with copies to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxx Xxxxx, Esq.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of _____________ applicable to
contracts made and to be performed within the State of __________.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
_______________, 2002
Page 23
16. HEADINGS. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New
York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Material Adverse Effect" shall have the meaning set forth in
paragraph 1(c) hereof.
"Prospectus" shall mean the final prospectus included in the
Registration Statement at the time it was declared effective and any
prospectus supplement relating to the Shares that is filed pursuant
to Rule 424(b) after the Execution Time, including the Prospectus
Supplement.
"Prospectus Supplement" shall mean any prospectus supplement
filed in accordance with Rule 424(b).
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits, financial
statements and documents incorporated therein by reference pursuant
to Form S-3 under the Act, as amended at the Execution Time (or, if
not effective at the Execution Time, in the form in which it shall
become effective) and, in the event any post-effective amendment
thereto or any Rule 462(b) Registration Statement becomes effective
prior to the Closing Date, shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement,
as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
_______________, 2002
Page 24
"Rule 424" and "Rule 462" refer to such rules under the Act.
"Rule 462 Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462)
relating to the offering covered by the initial registration
statement.
_______________, 2002
Page 25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
HIBBETT SPORTING GOODS, INC.
By: _____________________________________
Name: ___________________________________
Title: __________________________________
SELLING STOCKHOLDERS:
By: _____________________________________
As Attorney-in-Fact acting on behalf
of the Selling Stockholders named in
Schedule II hereto
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
[UNDERWRITER]
By: ________________________________
Name:
Title:
For themselves and the other several Underwriters
named in Schedule I to the foregoing Agreement.
SCHEDULE I
----------
NUMBER OF
UNDERWRITTEN
SECURITIES TO BE
UNDERWRITERS PURCHASED
-----------------
Total ...........................
=================
SCHEDULE II
-----------
Schedule of Selling Stockholders
STOCKHOLDER NUMBER OF SHARES TO BE SOLD
----------- ---------------------------
The SK Equity Fund, L.P. ..................
SK Investment Fund, L.P. ..................
Total ...............................
EXHIBITS INTENTIONALLY OMITTED
