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EXHIBIT 1.1
1,100,000 SHARES*
TRANSTECHNOLOGY CORPORATION
Common Stock
UNDERWRITING AGREEMENT
______________ ___, 1997
ABN AMRO CHICAGO CORPORATION
EVEREN SECURITIES, INC.
As Representatives of the
several Underwriters named
in Schedule I hereto
c/o ABN AMRO Chicago Corporation
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Pursuant to the terms of this Underwriting Agreement (this
"Agreement"), TransTechnology Corporation, a Delaware corporation (the
"Company"), proposes, upon the terms and subject to the conditions set forth
herein, to issue and sell an aggregate of 1,000,000 shares of Common Stock, par
value $0.01 per share (the "Common Stock"), of the Company to the several
underwriters named in Schedule I hereto (collectively, the "Underwriters") and
the stockholders of the Company named in Schedule II hereto (the "Selling
Stockholders") propose, upon the terms and subject to the conditions set forth
herein, to sell to the Underwriters an aggregate of 100,000 shares of Common
Stock. The Company has agreed to issue and sell to the several Underwriters,
upon the terms and subject to the conditions set forth in Section 2 hereof, up
to an additional 165,000 shares of
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* Plus an option to purchase up to 165,000 Additional Shares to cover
over-allotments.
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Common Stock. The aggregate of 1,100,000 shares to be sold by the Company and
the Selling Stockholders are herein called the "Firm Shares" and the aggregate
of 165,000 additional shares to be sold by the Company and the Selling
Stockholders are herein called the "Additional Shares." The Firm Shares and the
Additional Shares are hereinafter collectively referred to as the "Shares." ABN
AMRO Chicago Corporation and EVEREN Securities, Inc. are acting individually and
as representatives of the several Underwriters and in such capacity are
hereinafter referred to as the "Representatives."
Prior to the purchase and public offering of the Shares by the
several Underwriters, the Company and the Representatives shall enter into an
agreement substantially in the form of EXHIBIT A hereto (the "Pricing
Agreement"). The Pricing Agreement may take the form of an exchange of any
standard form of written telecommunication between the Company and the
Representatives and shall specify such applicable information as is indicated in
EXHIBIT A hereto. The offering of the Shares will be governed by this Agreement,
as supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be deemed
to incorporate the Pricing Agreement.
The Company and the Selling Stockholders are advised by the
Representatives that the Underwriters have agreed to make a public offering of
their respective portions of the Shares as soon after the Registration Statement
(as defined below) has become effective and the Pricing Agreement has been
executed as in the judgment of the Representatives is advisable and to first
offer the Shares upon the terms set forth in the Prospectus (as defined below).
The Company, the Representatives and the other Underwriters hereby
agree to the following matters with respect to the purchase and sale of the
Shares:
SECTION 1. (a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(i) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-2 (File No. 333-37395), including a preliminary prospectus, relating to
the Shares and certain amendments thereto. The Company will next file with the
Commission one of the following: (A) prior to effectiveness of such registration
statement, a further amendment thereto, including the form of final prospectus,
(B) a final prospectus in accordance with Rules 430A and 424(b) under the Act or
(C) a term sheet (the "Term Sheet") as described in and in accordance with Rules
434 and 424(b) under the Act. As filed, the final prospectus, if one is used, or
the Term Sheet and the latest Preliminary Prospectus,
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if a final prospectus is not used, shall include all Rule 430A Information
(as defined below). There have been or will promptly be delivered to the
Representatives three signed copies of such registration statement and
amendments, together with three copies of all documents incorporated by
reference therein, three copies of each exhibit filed therewith, and conformed
copies of such registration statement and amendments (but without exhibits) and
of the related preliminary prospectus or prospectuses and final forms of
prospectus or Term Sheet, if a Term Sheet is used, for each of the Underwriters.
The term "Registration Statement" as used in this Agreement shall mean such
registration statement at the time such registration statement becomes effective
and, in the event any amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration statement as so
amended; provided, however, that such term shall also include all Rule 430A
Information deemed to be included in such registration statement at the time
such registration statement becomes effective as provided by Rule 430A and, if a
Term Sheet is used, shall also include all information deemed to be included in
such registration statement at the time such registration statement becomes
effective as provided by Rule 434; provided, further, that if the Company files
a registration statement under the Act to register a portion of the Shares and
relies on Rule 462(b) for such registration statement to become effective upon
filing with the Commission (the "Rule 462 Registration Statement"), then any
reference to "Registration Statement" herein shall be deemed to be to both the
registration statement referred to above (No. 333-37395) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the Act. The term "Preliminary Prospectus" as used in this Agreement
shall mean any preliminary prospectus relating to the Shares filed with the
Commission under the Act and the rules and regulations thereunder, including any
preliminary prospectus included in the Registration Statement at the time it
becomes effective that omits Rule 430A Information. The term "Prospectus" as
used in this Agreement shall mean: (X) the prospectus relating to the Shares in
the form in which it is first filed with the Commission pursuant to Rule 424(b)
under the Act; (Y) if a Term Sheet is not used and no filing pursuant to Rule
424(b) under the Act is required, the form of final prospectus included in the
Registration Statement at the time the Registration Statement becomes effective;
or (Z) if a Term Sheet is used in lieu of a prospectus, the Term Sheet in the
form in which it is first filed with the Commission pursuant to Rule 424(b)
under the Act, together with the latest Preliminary Prospectus included in the
Registration Statement at the time it becomes effective (such Term Sheet and
Preliminary Prospectus are sometimes collectively referred to herein as the
"Rule 434 Prospectus"). The term "Rule 430A Information" as used in this
Agreement shall mean information with respect to the Shares and the offering
thereof permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A under the Act. The Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder are
hereinafter collectively referred to as the "Exchange Act." Any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Form S-2
under the Act ("Incorporated Documents"), as of the date of such
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Preliminary Prospectus or Prospectus, as the case may be. The Incorporated
Documents, when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act 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.
(ii) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus complied
in all material respects when so filed with the requirements of the Act (except
to the extent that, in conformity with the Act, such Preliminary Prospectus is
subject to completion).
(iii) The Registration Statement in the form in which it becomes
effective and also in such form as it may be when the Pricing Agreement is
executed or any post-effective amendment to the Registration Statement shall
become effective, and the Prospectus when and in the form last filed with the
Commission as part of the Registration Statement prior to effectiveness or, if
applicable, first filed pursuant to Rule 424(b) under the Act, and when any
supplement or amendment thereto is filed with the Commission, each will comply
in all material respects with the requirements of the Act, will not at any such
time contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. This
representation and warranty does not apply to statements in or omissions from
the Registration Statement or the Prospectus (or any supplement or amendment
thereto) made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by or on behalf of such
Underwriter through the Representatives specifically for use in the Registration
Statement.
(iv) There is no contract or other document of a character required
to be described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required.
(v) The accountants who have expressed their opinions with respect to
certain of the financial statements of the Company included or incorporated by
reference in the Registration Statement and the Prospectus, are independent
public accountants as required by the Act.
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(vi) The consolidated financial statements, together with the notes
thereto, of the Company included or incorporated by reference in the
Registration Statement and the Prospectus comply in all material respects with
the Act and present fairly the consolidated financial position of the Company as
of the dates indicated, and the consolidated results of operations, cash flows
and changes in financial position of the Company for the periods specified. Such
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire period
involved except to the extent disclosed therein.
The pro forma financial statements and other pro forma information
included in the Prospectus present fairly the information shown therein, have
been prepared in accordance with generally accepted accounting principles and
the Commission's rules and guidelines with respect to pro forma financial
statements and other pro forma information, have been properly compiled on the
pro forma basis described therein, and, in the opinion of the Company, the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate under the circumstances.
(vii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus.
The Company is duly qualified to do business as a foreign corporation and in
good standing in each jurisdiction in which the ownership or leasing of its
properties or the conduct of its business requires such qualification, except in
any such case in which the failure to so qualify or be in good standing would
not have a material adverse effect upon the business of the Company and its
subsidiaries, taken as a whole; and no proceeding of which the Company has
knowledge has been instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
(viii) Each of the Company's subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full corporate power and authority to own,
lease and operate its properties and conduct its business as described in the
Registration Statement and Prospectus. Each of the Company's subsidiaries is
duly qualified to do business as a foreign corporation in good standing in each
jurisdiction in which the ownership or leasing of its properties or the conduct
of its business requires such qualification, except in any such case in which
the failure to so qualify or be in good standing would not have a material
adverse effect on the business of the Company and its subsidiaries, taken as a
whole. Each of the Company's subsidiaries has all authorizations, approvals,
orders, certificates and permits of and from all state, federal and other
regulatory officials and bodies necessary to own its properties and to conduct
its business as described in the Registration Statement and Prospectus, except
where the failure to have any such authorization, approval, order, certificate
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or permit would not have a material adverse effect on the business affairs,
business prospects, properties, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole. Except for the capital stock
of the subsidiaries and except as otherwise described in the Prospectus or as
disclosed to the Representatives in writing, the Company does not own any
capital stock of, or other securities evidencing an equity interest in, any
corporation, partnership or other entity. All of the issued and outstanding
shares of capital stock of the Company's subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable, and except as described
in the Prospectus, are owned by the Company, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature. Except as
described in the Prospectus, there are no outstanding subscriptions, rights,
warrants or options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock of any of the Company's subsidiaries.
(ix) The Company has an authorized and outstanding capitalization as
set forth in the Prospectus and the Shares conform to the description thereof
contained in the Prospectus. All of the issued and outstanding shares of Common
Stock (including the Shares to be sold by the Selling Stockholders to the
Underwriters) have been duly authorized, validly issued and are fully paid and
non-assessable and free of preemptive or other similar rights and there are no
options, agreements, contracts or other rights in existence to acquire from the
Company any shares of Common Stock, except as set forth in the Prospectus.
(x) The Shares to be sold by the Company pursuant to this Agreement
and the Pricing Agreement have been duly authorized and, when issued and paid
for in accordance with this Agreement and the Pricing Agreement, will be validly
issued, fully paid and non-assessable; the holders of the Shares will not be
subject to personal liability by reason of being such holders; there are no
holders of securities of the Company having rights, contractual or otherwise, to
registration thereof or preemptive rights to purchase Common Stock; all
corporate actions required to be taken for the authorization, issue and sale of
the Shares have been validly and sufficiently taken; and upon delivery of and
payment for such Shares hereunder, the Underwriters will acquire valid and
marketable title thereto, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(xi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated or
contemplated therein, there has not been (A) any material adverse change in the
condition (financial or otherwise), earnings, affairs, business or prospects of
the Company and its subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business, (B) any material transaction entered into, or
any material liability or obligation incurred, by the Company or its
subsidiaries other than in the ordinary course of business, (C) any change in
the capital stock, or material increase in the short-term debt or long-term debt
of the Company or its subsidiaries, or (D) any
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dividend or distribution of any kind declared, paid or made by the Company or
its subsidiaries on its capital stock.
(xii) The Company and each of its subsidiaries have good and
marketable title to all properties and assets reflected as owned in the
financial statements hereinabove described or described in the Prospectus as
owned by them, free and clear of all liens, charges, encumbrances or
restrictions of any kind, except such as are referred to in such financial
statements or the Prospectus or which are not material to the business of the
Company and its subsidiaries, taken as a whole; all of the leases and subleases
material to the business of the Company and its subsidiaries, taken as a whole
or under which the Company or its subsidiaries holds properties are in full
force and effect; and neither the Company nor any of its subsidiaries has
received any notice of any material claim of any sort which has been asserted by
anyone adverse to the rights of the Company or any subsidiary as owner or as
lessee or sublessee under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or
sublease.
(xiii) Neither the Company nor any of its subsidiaries is in default
in the observance of any provision of its Certificate of Incorporation or
by-laws, or in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by which it
or any of its properties may be bound, the effect of which could be materially
adverse to the condition (financial or otherwise), earnings, affairs, business
or prospects of the Company and its subsidiaries, taken as a whole.
(xiv) The execution and delivery of this Agreement and the Pricing
Agreement, the issuance and delivery of the Shares, the consummation of the
transactions contemplated herein and in the Registration Statement and
compliance with the terms of this Agreement and the Pricing Agreement have been
duly authorized by all necessary corporate action and will not result in any
violation of the Certificate of Incorporation or by-laws of the Company or any
of its subsidiaries, and will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge, encumbrance or restriction of any
kind upon any property or assets of the Company or any of its subsidiaries under
any contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries, or any of their
respective properties, is bound, or any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties. No
approval, authorization or consent of any court, regulatory body, administrative
agency or other governmental body having jurisdiction over the Company or any of
its subsidiaries is required in connection with the sale of
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the Shares to the Underwriters, except such as may be required under the Act,
state securities or Blue Sky laws or from the clearance of the offering with the
National Association of Securities Dealers, Inc. (the "NASD").
(xv) Except as disclosed in the Registration Statement or the
Prospectus, there is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, or any arbitrator or
arbitration panel, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries which could result
in any material adverse change to the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company and its subsidiaries,
taken as whole; and there is no decree, judgment or order of any kind in
existence against or restraining the Company or any of its subsidiaries, or any
of their respective officers, employees or directors, from taking any actions of
any kind in connection with the business of the Company or any such subsidiary.
(xvi) The Company and each of its subsidiaries own or possess or have
obtained all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the case may
be, and to operate their properties and to carry on their businesses as
presently conducted, and neither the Company nor any such subsidiary has
received any notice of proceedings related to revocation or modification of any
such licenses, permits, consents, orders, approvals or authorizations which
singly or in the aggregate, if the subject of an unfavorable ruling or finding,
would be materially adverse to the condition (financial or otherwise), earnings,
affairs, business or prospects of the Company and its subsidiaries, taken as a
whole.
(xvii) The conduct of the business of the Company and each of its
subsidiaries is in compliance with all applicable federal, state and local laws
and regulations that regulate or are concerned in any way with the business of
the Company or such subsidiaries, where the effect of the failure to comply
would be materially adverse to the condition (financial or otherwise), earnings,
affairs, business or prospects of the Company and its subsidiaries, taken as a
whole.
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(xviii) The Company together with its subsidiaries owns or possesses,
or can acquire on reasonable terms, all right, title and interest in or to, or
has duly licensed from third parties, all patents, trademarks, service marks,
copyrights, trade names, trade secrets and other proprietary rights ("Trade
Rights") necessary to conduct the business now or proposed to be conducted by
it, and neither the Company nor any of its subsidiaries has received any notice
of, and has no knowledge of, infringement of or conflict with asserted rights of
others with respect to any such Trade Rights which, singly or in the aggregate,
if the subject of any unfavorable decision, ruling or finding, would be
materially adverse to the condition (financial or otherwise), earnings, affairs,
business or prospects of the Company and its subsidiaries, taken as a whole.
(xix) The Company has filed all tax returns required to be filed and
has paid all taxes which were payable pursuant to said returns or any
assessments with respect thereto, other than any tax returns which the Company
is contesting in good faith or which are not material to the Company and there
is no tax deficiency that has been, or to the knowledge of the Company might be,
asserted against the Company or any of its properties or assets that would or
could be expected to have a material adverse affect upon the condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole.
(xx) This Agreement has been duly executed and delivered by the
Company.
(xxi) A registration statement relating to the Common Stock has been
declared effective by the Commission pursuant to the Exchange Act and the Common
Stock is duly registered thereunder. The Shares have been authorized for trading
on the New York Stock Exchange, subject to notice of issuance or sale, as the
case may be.
(xxii) The Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment company" as
defined in Section 3(a) of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxiii) All offers and sales of the Company's capital stock prior to
the date hereof were at all relevant times (A) registered under the Act or
exempt from the registration requirements thereof and (B) duly registered with,
or the subject of an available exemption from, the registration requirements of
the applicable state securities or Blue Sky laws.
(xxiv) The Company has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company.
(xxv) Except as disclosed in the Registration Statement and the
Prospectus, no transaction has occurred between or among the Company, on the one
hand, and any of its officers or directors or any affiliate or affiliates of any
such officer or director, on the other hand, that is required to be so
disclosed, including, but not limited to, any outstanding loans, advances or
guaranties of indebtedness by the Company to or for the benefit of any
affiliates of the Company, or any of the officers or directors of the Company,
or any family member of any of them.
(xxvi) The Company has not, directly or indirectly, at any time (A)
made any contributions to any candidate for foreign political office, or if
made, failed to disclose fully any such contribution made in violation of law,
or (B) made any payment to any state, federal or foreign governmental officer or
official, or other person charged with
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similar public or quasi-public duties, other than payments or contributions
required or allowed by applicable law. The Company's internal accounting
controls and procedures are sufficient to enable the Company to comply in all
material respects with the Foreign Corrupt Practices Act of 1977, as amended.
(xxvii) Except as disclosed in the Registration Statement or the
Prospectus, the Company and each of its subsidiaries (a) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (b) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (c) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(xxviii) In the ordinary course of its business, the Company conducts
a periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws of any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). Except as disclosed in the Registration
Statement and Prospectus, on the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(xxix) The Company and each of its subsidiaries are in compliance
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company or any of its subsidiaries would have any liability; neither
the Company nor any of its subsidiaries has incurred or expects to incur
liability (i) under Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) for violation of section 412 or for
any tax under 4971 of the Internal Revenue Code of 1986, as amended, including
the regulations and published interpretations thereunder (the "Code"); and each
"pension plan" for which either the Company or any of its subsidiaries would
have any liability that is intended to be qualified under section 401(a) of the
Code is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
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(b) REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SELLING
STOCKHOLDERS. Each Selling Stockholder severally but not jointly represents and
warrants and agrees with the Company and the Underwriters that:
(i) Such Selling Stockholder has good and marketable title to the
Shares proposed to be sold by such Selling Stockholder hereunder and full right,
power and authority to enter into this Agreement and the Pricing Agreement and
to sell, assign, transfer and deliver such Shares hereunder, free and clear of
all voting trust arrangements, security interests, claims, liens, encumbrances,
community property rights or adverse interests of any nature; and upon delivery
of and payment for such Shares hereunder, the Underwriters will acquire valid
and marketable title thereto, free and clear of all voting trust arrangements,
security interests, claims, liens, encumbrances, property rights or adverse
interests of any nature.
(ii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might be reasonably
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.
(iii) Such Selling Stockholder has executed and delivered a Power of
Attorney ("Power of Attorney") among the Selling Stockholder, Xxxxxx X. Xxxxxxx,
and Xxxxxx X. Xxxxxx (the "Agents"), naming the Agents as such Selling
Stockholder's attorneys-in-fact (and, by the execution by any Agent of this
Agreement, such agent hereby represents and warrants that he has been duly
appointed an attorney-in-fact by the Selling Stockholders pursuant to the Power
of Attorney) for the purpose of entering into and carrying out this Agreement
and the Pricing Agreement, and the Power of Attorney has been duly executed by
such Selling Stockholder and a copy thereof has been delivered to the
Representatives.
(iv) Such Selling Stockholder further represents and warrants and
agrees that such Selling Stockholder has deposited in custody, under a Custody
Agreement ("Custody Agreement") with Wachovia Bank N.A., as custodian
("Custodian"), certificates in negotiable form for the Shares to be sold
hereunder by such Selling Stockholder, for the purpose of further delivery
pursuant to this Agreement. Such Selling Stockholder agrees that the Shares to
be sold by such Selling Stockholder on deposit with the Custodian are subject to
the interests of the Company, the Underwriters and the other Selling
Stockholders, that the arrangements made for such custody, and the appointment
of the Agents pursuant to the Power of Attorney, are to that extent irrevocable,
and that the obligations of such Selling Stockholder hereunder and under the
Power of Attorney and the Custody Agreement shall not be terminated except as
provided in this Agreement, the Power of Attorney or the Custody Agreement by
any act of such Selling Stockholder, by operation of law, whether, in the case
of an individual Selling Stockholder, by the death or incapacity of such Selling
Stockholder or, in the case of a trust or estate, by
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the death of the trustee or trustees or the executor or executors or the
termination of such trust or estate, or, in the case of a partnership or
corporation, by the dissolution, winding-up or other event affecting the legal
life of such entity, or by the occurrence of any other event. If any individual
Selling Stockholder, trustee or executor should die or become incapacitated, or
any such trust, estate, partnership or corporation should be terminated, or if
any other event should occur before the delivery of the Shares hereunder, the
documents evidencing 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, termination or other event had not
occurred, regardless of whether or not the Custodian shall have received notice
thereof. Each Agent has been authorized by such Selling Stockholder to execute
and deliver this Agreement and the Pricing Agreement and the Custodian has been
authorized to receive and acknowledge receipt of the proceeds of sale of the
Shares to be sold by such Selling Stockholder against delivery thereof and to
otherwise act on behalf of such Selling Stockholder. The Custody Agreement has
been duly executed by such Selling Stockholder and a copy thereof has been
delivered to the Representatives.
(v) Each Preliminary Prospectus, insofar as it has related to such
Selling Stockholder and, to the knowledge of such Selling Stockholder in all
other respects, as of its date, has conformed in all material respects with the
requirements of the Act and, as of its date, has not included any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein not misleading; and the Registration Statement at
the time of effectiveness, and at all times subsequent thereto, (A) such parts
of the Registration Statement and the Prospectus and any amendments or
supplements thereto as relate to such Selling Stockholder, and the Registration
Statement and the Prospectus and any amendments or supplements thereto, to the
knowledge of such Selling Stockholder in all other respects, contained or will
contain all statements that are required to be stated therein in accordance with
the Act and in all material respects conformed or will in all material respects
conform to the requirements of the Act, and (B) neither the Registration
Statement nor the Prospectus, nor any amendment or supplement thereto, as it
relates to such Selling Stockholder, and, to the knowledge of such Selling
Stockholder in all other respects, included or will include any untrue statement
of a material fact or omitted or will omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided that neither clause (A) nor (B) shall have any affect if information
has been given by such Selling Stockholder to the Company and the
Representatives in writing which would eliminate or remedy any such untrue
statement or omission.
(vi) Except as set forth in the letters of even date herewith, each
among a Selling Stockholder, the Company and the Underwriters (collectively, the
"Lockup Agreements"), except as set forth in the letters of even date herewith,
each among a Selling Stockholder, the Company and the Underwriters
(collectively, the "Lockup Agreements"), such Selling Stockholder agrees with
the Company and the Underwriters not to sell, contract to sell or otherwise
dispose of any Common Stock or rights to purchase Common Stock for a period of
90 days after the date of the Pricing Agreement without the prior written
consent from ABN AMRO Chicago Corporation.
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SECTION 2. AGREEMENT TO SELL AND PURCHASE.
(a) Subject to such adjustments to eliminate any fractional share
sales or purchases as the Representatives in their discretion may make, (i) the
Company hereby agrees to issue and sell to the Underwriters an aggregate of
1,000,000 Firm Shares, (ii) the Selling Stockholders hereby agree, severally and
not jointly, to sell to the Underwriters in the respective amounts set forth in
Schedule II hereto, an aggregate of 100,000 Firm Shares, and (iii) on the basis
of the representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to the terms and conditions set forth
herein, each Underwriter agrees, severally and not jointly, to purchase from (A)
the Company and the Selling Stockholders, at the purchase price per Share set
forth in the Pricing Agreement (the "Purchase Price per Share"), the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto
(or such number of Firm Shares as such Underwriter shall be obligated to
purchase pursuant to the provisions of Section 9 hereof) and (B) the Selling
Stockholders the number of Firm Shares set further opposite the name of such
Selling Stockholder in Schedule II hereto.
(b) The Company and the Selling Stockholders agree to sell to the
Underwriters and, on the basis of the representations, warranties and agreements
of the Company and the Selling Stockholders set forth herein and subject to the
terms and conditions set forth herein, the Underwriters shall have the right to
purchase, from the Company up to 165,000 Additional Shares at the Purchase
Price per Share upon delivery to the Company and the Agents of the notice
hereinafter referred to. Such Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Company the number
of Additional Shares (subject to such adjustments to eliminate fractional
Shares as the Representatives may determine) which bears the same proportion to
the total number of Additional Shares to be purchased from the Company as the
number of Firm Shares set forth opposite such Underwriter's name in Schedule I
(or such number of Firm Shares increased pursuant to the terms set forth in
Section 9 hereof) bears to the total number of Firm Shares.
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SECTION 3. DELIVERY OF THE SHARES AND PAYMENT THEREFOR.
(a) Delivery to the Underwriters of the Firm Shares shall be made
against payment therefor at 9:00 a.m., Chicago, Illinois time, on the third full
business day following the date of the Pricing Agreement (the "Closing Date") at
the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 00 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000. The place of the closing and the Closing Date may be varied by
agreement among the Representatives and the Company.
(b) Delivery to the Underwriters of any Additional Shares to be
purchased by the several Underwriters shall be made in Chicago, Illinois against
payment therefor at the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 00 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000 at such time on such date (the "Option Closing
Date"), which may be the same as the Closing Date, but shall in no event be
earlier than the Closing Date nor earlier than three nor later than ten business
days after the giving of the notice hereinafter referred to, as shall be
specified in written notice from the Representatives to the Company and the
Agents of the determination to purchase a number, specified in said notice, of
Additional Shares. Said notice may be given at any time within 30 days after the
date of the execution of the Pricing Agreement. The place of the closing and the
Option Closing Date may be varied by agreement among the Representatives and the
Company.
(c) If the Representatives, the Company and the Selling Stockholders
have elected to enter into the Pricing Agreement after the Registration
Statement is effective, the Purchase Price per Share to be paid by the several
Underwriters for the Shares shall be an amount equal to the public offering
price, less an amount to be determined by agreement among the Representatives,
the Company and the Selling Stockholders. The public offering price per Share of
the Shares shall be a fixed price to be determined by agreement between the
Representatives and the Company. The public offering price and the Purchase
Price per Share, when so determined, shall be set forth in the Pricing
Agreement. If such prices have not been agreed upon and the Pricing Agreement
has not been executed and delivered by all parties thereto by the close of
business on the fourth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any party to any other
party, unless otherwise agreed to by the Company, the Selling Stockholders and
the
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Representatives and except as otherwise provided in Section 5 hereof. If the
Representatives, the Company and the Selling Stockholders have elected to enter
into the Pricing Agreement prior to the Registration Statement becoming
effective, the public offering price and the Purchase Price per Share to be paid
by the several Underwriters for the Shares having each been determined and set
forth in the Pricing Agreement, the Company agrees to file an amendment to the
Registration Statement and the Prospectus before the Registration Statement
becomes effective.
(d) Certificates for the Firm Shares and for the Additional Shares
shall be registered in such names and in such denominations as the
Representatives shall request upon at least 48 hours prior notice to the Company
and the Custodian preceding the Closing Date or the Option Closing Date, as the
case may be. Such certificates shall be made available to the Representatives at
the office of The Depository Trust Company, New York, New York, for inspection
and packaging not later than at least 24 hours prior to the Closing Date or the
Option Closing Date, as the case may be. The certificates evidencing the Firm
Shares and the Additional Shares shall be delivered to the Representatives on
the Closing Date or the Option Closing Date, as the case may be, with any
transfer taxes thereon duly paid by the Company or the Selling Stockholders, as
the case may be, for the respective accounts of the several Underwriters,
against payment of the purchase price therefor by wire or other immediately
available funds. It is understood by the Company and the Selling Stockholders
that each of the Underwriters has authorized the Representatives, for its
account, to accept delivery of, receipt for and make payment of the purchase
price for, the Shares it has agreed to purchase.
SECTION 4. AGREEMENTS OF THE COMPANY. The Company covenants and agrees with
the several Underwriters that:
(a) The Company will endeavor to cause the Registration Statement to
become effective and will advise the Representatives promptly and, if requested
by the Representatives, will confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment to it becomes effective, and of the filing of any final prospectus or
supplement or amendment to the Prospectus, (ii) of any request by the Commission
for amendments or supplements to the Registration Statement or Prospectus or any
Preliminary Prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation or contemplation of any
proceeding for such purposes, and (iv) within the period of time referred to in
paragraph (f) below, of the happening of any event which makes any statement
made in the Registration Statement or Prospectus (as then amended or
supplemented) untrue in any material respect or which requires the making of any
additions to or changes in the Registration Statement or Prospectus (as then
amended or supplemented) in order to make the statements therein not misleading
or the necessity to amend or supplement the Prospectus to comply with
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the Act or any other law. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal of such order
at the earliest possible moment. If the Company elects to rely on Rule 434 of
the Act, the Company will prepare a Term Sheet that complies with the
requirements of Rule 434 of the Act and will provide the Representatives with
copies of the form of Rule 434 Prospectus in such numbers as the Representatives
may reasonably request and file or transmit for filing with the Commission the
form of Prospectus complying with Rule 434(c)(2) of the Act in accordance with
Rule 424(b) of the Act by the close of business in Chicago on the business day
immediately succeeding the date hereof. If the Company elects not to rely on
Rule 434, the Company will provide the Representatives with copies of the form
of Prospectus in such numbers as the Representatives may reasonably request and
file or transmit for filing with the Commission such Prospectus in accordance
with Rule 424(b) of the Act, by the close of business in Chicago on the business
day immediately succeeding the date hereof.
(b) If, at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A under the Act, then promptly following the execution of the Pricing
Agreement, the Company will prepare and file with the Commission, in accordance
with Rule 430A and Rule 424(b) under the Act, copies of an amended Prospectus,
or, if required by Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus) containing all information so
omitted.
(c) Neither the Company nor any of its subsidiaries will, prior to
the earlier of the Option Closing Date or termination or expiration of the
related option, incur any liability or obligation, direct or contingent, or
enter into any material transaction, other than in the ordinary course of
business, except as contemplated in the Prospectus.
(d) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which the
Representatives shall not previously have been advised or to which the
Representatives shall promptly after being so advised reasonably object in
writing.
(e) Prior to the effective date of the Registration Statement, the
Company has delivered or will deliver to each of the Underwriters, without
charge, copies of each form of Preliminary Prospectus in such quantities as they
have reasonably requested or may hereafter reasonably request. The Company
consents to the use, in accordance with the provisions of the Act and with the
securities or Blue Sky laws of the jurisdictions in which the Shares are offered
by the several Underwriters and by dealers, prior to the effective date of the
Registration Statement, of each Preliminary Prospectus so furnished by the
Company.
(f) On the effective date of the Registration Statement and
thereafter from time to time during such period as in the opinion of counsel for
the Underwriters a prospectus relating to the Shares is required by law to be
delivered in connection with
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offers or sales of the Shares by an Underwriter or a dealer, the Company will
deliver to each Underwriter and dealer, without charge, as many copies of the
Registration Statement, the Prospectus and each Preliminary Prospectus and the
Incorporated Documents (and of any amendment or supplement to such documents) as
they may reasonably request. During such period, if any event occurs which in
the judgment of the Company, or in the opinion of counsel for the Underwriters,
should be set forth in the Prospectus in order to ensure that no part of the
Prospectus includes an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances at the time the Prospectus is delivered to a purchaser, not
misleading, the Company will forthwith prepare, submit to the Representatives,
file with the Commission and deliver, without charge to the several Underwriters
and dealers (whose names and addresses will be furnished by the Representatives
to the Company) to whom shares have been sold by the Underwriters or to other
dealers any amendments or supplements to the Prospectus so that the statements
in the Prospectus, as so amended or supplemented, will comply with the standards
set forth in this sentence. The Company consents to the use of such Prospectus
(and of any amendments or supplements thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions
described in the preliminary Blue Sky memorandum in which the Shares are
lawfully offered by the several Underwriters and by all dealers to whom Shares
may be sold, both in connection with the offering or sale of the Shares and for
such period of time thereafter as the Prospectus is required by law to be
delivered in connection therewith. In case any Underwriter is required to
deliver a Prospectus (and any amendment or supplement thereto) more than nine
months after the first date upon which the Shares are offered to the public, the
Company will, upon request, but at the expense of such Underwriter, promptly
prepare and furnish such Underwriter with reasonable quantities of a Prospectus
complying with Section 10(a)(3) of the Act.
(g) The Company will cooperate with the Representatives and counsel
for the Underwriters in connection with the registration or qualification of the
Shares for offer and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as the Representatives may
designate, will continue such registrations or qualifications in effect so long
as reasonably required for the distribution of the Shares and will file such
consents to service of process or other documents as may be necessary in order
to effect such registration or qualification; provided that in no event shall
the Company be obligated (i) to qualify to do business in any jurisdiction where
it is not now so qualified, (ii) to file any general consent to service of
process, or (iii) take any action that would subject it to income taxation in
any jurisdiction where it is not so qualified.
(h) For a period of five years after the date of the Pricing
Agreement:
(i) the Company will furnish to the Representatives (A) as soon as
available, a copy of each report of the Company of general interest mailed
to any class of its security holders (B) copies of all annual reports and
current
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reports filed with the Commission on Forms 10-K, 10-Q and 8-K and any
amendment thereto or such other similar forms as may be designated by the
Commission and (C) from time to time, such other information concerning the
Company as the Representatives may reasonably request;
(ii) if at any time during such five year period, the Company shall
cease filing with the Commission the annual reports and current reports on
Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause (i)
above, the Company will forward to its stockholders generally and the
Representatives and upon request to each of the other Underwriters (A) as
soon as practicable after the end of each fiscal year, copies of a balance
sheet and statements of income and retained earnings of the Company as of
the end of and for such fiscal year, certified by independent public
accountants, and (B) as soon as practicable after the end of each quarterly
fiscal period, except for the last quarterly fiscal period in each fiscal
year, a summary statement (which need not be certified) of income and
retained earnings of the Company for such period, which shall also be made
publicly available; and
(iii) the Company will furnish to the Representatives and to the
NASD, and by issuance of a press release, on the date of declaration,
notice of all dividends, including the amount and medium of payment, the
record date (which shall be not less than ten days subsequent to the
declaration date) and the payment date (which shall be not less than ten
days subsequent to the record date).
(i) The Company will make generally available to its security holders
an earnings statement of the Company, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including Rule 158).
(j) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to Section 9 hereof or by notice
given by the Representatives of termination of this Agreement pursuant to
Section 10 hereof), or if this Agreement shall be terminated by the several
Underwriters because of any failure or refusal on the part of the Company to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the several Underwriters for all out-of-pocket
expenses (including reasonable fees and expenses of counsel for the
Underwriters) reasonably incurred by them in connection herewith but without any
further obligation of the Company for lost profits or otherwise. If this
Agreement is terminated pursuant to Section 9 or Section 10 hereof, the several
Underwriters shall themselves bear any such out-of-pocket expenses incurred by
them.
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(k) Except as set forth in the Lockup Agreements, the Company will
not sell, contract to sell or otherwise dispose of any Common Stock or rights to
purchase Common Stock for a period of 90 days after the date of the Pricing
Agreement without the prior written consent of the Representatives. The Company
will also obtain similar agreements from each of its executive officers and
directors.
(l) The Company will apply the net proceeds from the sale of the
shares to be sold by it under this Agreement and the Pricing Agreement for the
purposes set forth in the Prospectus under the caption "Use of Proceeds."
(m) The Company will use its best efforts, subject to notice of
issuance, to list the Shares on the New York Stock Exchange.
SECTION 5. PAYMENT OF EXPENSES. The Company will pay, or reimburse if paid
by the Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the performance by it of its obligations under this Agreement and the Pricing
Agreement, including, without limiting the generality of the foregoing, (a)
preparation, printing, filing and distribution (including postage, air freight
charges and charges for counting and packaging) of the original registration
statement, the Registration Statement, each Preliminary Prospectus, the
Prospectus (including all Incorporated Documents, any exhibits and financial
statements and any Term Sheet delivered by the Company pursuant to Rule 434 of
the Act), each amendment and/or supplement to any of the foregoing, and this
Agreement, the Pricing Agreement, the Agreement Among Underwriters, Selected
Dealers Agreement, Powers of Attorney and Underwriters' Powers of Attorney and
Questionnaires, (b) furnishing to the several Underwriters and dealers copies of
the foregoing materials (provided, however, that any such copies furnished by
the Company more than nine months after the first date upon which the Shares are
offered to the public shall be at the expense of the several Underwriters or
dealers so requesting as provided in Section 4(f) above), (c) the registrations
or qualifications referred to in Section 4(g) above (including filing fees and
fees and disbursements of counsel in connection therewith) and expenses of
printing and delivering to the several Underwriters copies of the preliminary
and final Blue Sky memoranda, (d) the review of the terms of the public offering
of the Shares by the NASD (including the filing fees paid to the NASD in
connection therewith) and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith, (e) the performance by the Company and
each of the Selling Stockholders of its other obligations under this Agreement,
including the fees of the Company's and each Selling Stockholder's counsel and
accountants, (f) the issuance of the Shares and the preparation and printing of
the stock certificates representing the Shares, including any stamp taxes
payable in connection with the original issuance of the Shares, (g) furnishing
to the several Underwriters copies of all reports and information required by
Section 4(h) above, including reasonable costs of shipping and mailing, and (h)
the listing of the Common Stock on the New York Stock Exchange.
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SECTION 6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) That the Registration Statement shall have become effective not
later than 1:00 p.m., Chicago time, on the first full business day after the
date of this Agreement, or at such later date and time as shall be consented to
in writing by the Representatives, and, if the Representatives and the Company
have elected to rely upon Rule 430A, the price of the Shares and any
price-related or other information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been transmitted to
the Commission for filing pursuant to Rule 424(b) within the prescribed time
period, and, if the Representatives and the Company have elected to rely upon a
Term Sheet, such Term Sheet shall have been transmitted to the Commission for
filing pursuant to Rule 434 and Rule 424(b) within the prescribed time period,
and on or prior to the Closing Date, the Company shall have provided evidence
satisfactory to the Representatives of such timely filing, or a post-effective
amendment providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A. No stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for the purpose shall have been instituted or shall be
pending or, to the knowledge of the Company or the Selling Stockholders, shall
be contemplated by the Commission and there shall not have come to the attention
of the Representatives any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to purchasers of the
Shares, contained any untrue statement of material fact or omitted to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) That subsequent to the effective date of the Registration
Statement, (i) there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries not contemplated by the
Prospectus, which, in the Representatives' opinion, as Representatives of the
several Underwriters, would materially adversely affect the market for the
Shares or make it impracticable or inadvisable to proceed with the offering or
the delivery of the Shares, as contemplated herein and in the Prospectus, or to
attempt to enforce contracts for the purchase of Shares, and (ii) the business
and operations of the Company shall not have been adversely affected by strike,
fire, flood, accident or other calamity (whether or not insured).
(c) The Representatives shall have received from Xxxxxx X. Xxxxxx,
Vice President, Secretary and General Counsel of the Company, a favorable
opinion dated the Closing Date and satisfactory to the Representatives and the
Underwriters' counsel to the effect that:
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(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement. The Company is duly qualified to do business as a foreign
corporation and in good standing in each jurisdiction where the ownership
or leasing of its properties or the conduct of its business requires such
qualification, except in any such case where the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries, taken as a whole.
(ii) An opinion to the same general effect as clause (i) of this
subparagraph (c) in respect of each direct and indirect subsidiary of the
Company.
(iii) All of the issued and outstanding capital stock of the
subsidiaries of the Company has been duly authorized and validly issued and
is fully paid and non-assessable, and except as disclosed in the
Registration Statement, the Company owns directly or indirectly 100 percent
of the outstanding capital stock of each subsidiary and, to the best
knowledge of such counsel, such stock is owned free and clear of any
security interests, claims, liens, encumbrances or adverse interests of any
nature.
(iv) The issued and outstanding capital stock of the Company has been
duly authorized and validly issued and is fully paid and non-assessable and
free of preemptive rights.
(v) The authorized capitalization of the Company consists entirely of
14,700,000 shares of Common Stock, of which __________ were issued and
outstanding on the date of the Prospectus and 300,000 shares of Preferred
Stock, of which no shares were issued and outstanding on the date of the
Prospectus and all of which conforms to the description thereof in the
Registration Statement and the Prospectus.
(vi) The certificates for the Shares to be delivered by the Company
hereunder are in due and proper form, and when duly countersigned by the
Company's transfer agent and delivered to the Representatives against
payment of the agreed consideration therefor in accordance with the
provisions of this Agreement and the Pricing Agreement, the Shares
represented thereby will be duly authorized and validly issued, fully paid
and nonassessable and free of preemptive rights and, to the knowledge of
such counsel, will be free of any security interest, claim, lien,
encumbrance or adverse interest of any nature, or rights of first refusal
in favor of, stockholders with respect to any of the Shares or the issuance
or sale thereof, pursuant to the Certificate of Incorporation or by-laws of
the Company and, to such counsel's knowledge, there are no contractual
preemptive rights, rights of first refusal, rights of co-
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sale or other similar rights which exist with respect to any of the Shares
or the issuance and sale thereof; and the Shares to be sold by the Company
hereunder have been duly and validly authorized and qualified for listing
on the New York Stock Exchange, subject to notice of issuance.
(vii) This Agreement and the Pricing Agreement have been duly and
validly authorized, executed and delivered by the Company and are legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity, and except
that such counsel need express no opinion as to those provisions relating
to indemnities for liabilities under the Act.
(viii) No authorization, approval, order or consent of any
governmental authority or agency is required for the valid issuance and
sale of the Shares, except such as may be required under the Act or state
securities laws as to which such counsel need express no opinion.
(ix) The execution, delivery and performance of this Agreement and
the Pricing Agreement by the Company, the issue and sale of the Shares, and
the consummation of the transactions contemplated hereby and thereby will
not conflict with or result in a breach of any of the provisions of, or
constitute a default under (A) the Company's Certificate of Incorporation
or by-laws or any agreement, franchise, license, indenture, mortgage, deed
of trust or other instrument or agreement known to such counsel to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of their respective
properties is subject or (B) so far as known to such counsel, any statute,
order, rule or regulation applicable to the Company or any of its
subsidiaries of any court or other governmental authority or body having
jurisdiction over the Company or any of its subsidiaries or any of its
properties.
(x) To such counsel's knowledge, except as disclosed in the
Prospectus, no person has the right, contractual or otherwise, to cause the
Company to register pursuant to the Act any shares of capital stock of the
Company, upon the issuance and sale of the Shares to be sold by the Company
to the Underwriters pursuant to this Agreement.
(xi) To such counsel's knowledge, all offers and sales of the
Company's capital stock prior to the date hereof were at all relevant times
(A) registered under the Act or exempt from the registration requirements
of the Act or (B)duly registered or the subject of an available exemption
from the registration requirements of the applicable state securities or
blue sky laws.
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In rendering such opinion, such counsel may state that he is relying
upon the certificate of the transfer agent for the Common Stock, as to the
number of shares of Common Stock at any time or times outstanding. Such counsel
may also rely upon the opinions of other competent counsel and, as to factual
matters, on certificates of state officials, in which case such counsel's
opinion is to state that they are so doing and copies of such opinions or
certificates are to be attached to the opinion unless such opinions or
certificates (or, in the case of certificates, the information therein) have
been furnished to the Representatives otherwise.
(d) The Representatives shall have received from Xxxx Xxxxxx & Parks LLP,
counsel for the Company and the Selling Stockholders, a favorable opinion dated
the Closing Date and satisfactory to the Representatives and the Underwriters'
counsel to the effect that:
(i) All documents incorporated by reference in the Prospectus, when
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act; and such counsel have
no reason to believe that any of such documents, when they were so filed,
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading; such counsel need express no opinion as to
the financial statements or other financial or statistical data contained
in any such document.
(ii) The Registration Statement has become effective under the Act,
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
(iii) The Registration Statement (including the information deemed to
be part of the Registration Statement at the time of effectiveness pursuant
to Rule 430A(b), if applicable) as amended or supplemented (except for the
financial statements and notes thereto, the financial statement schedules
and other financial data included therein as to which such counsel need
express no opinion) and the Prospectus and any supplements or amendments
thereto (except for the financial statements and notes thereto, the
financial statement schedules and other financial data included therein, as
to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules of the
Commission thereunder and nothing has come to the attention of such counsel
that would cause such counsel to believe that the Registration Statement
(including the information deemed to be part of the Registration Statement
at the time of effectiveness pursuant to Rule 430A(b), if applicable) as
amended or supplemented (except
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for the financial statements and notes thereto, the financial statement
schedules and other statistical or financial data included therein as to
which such counsel need express no opinion) at the time it became
effective, at the time the Pricing Agreement was executed and at the
Closing Date, contained any untrue statement of a material fact or omitted
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that, as of its
date, the Prospectus or any amendment or supplement thereto (except for the
financial statements and notes thereto, the financial statement schedules
and other statistical or financial data included therein as to which such
counsel need express no opinion) included or includes any untrue statement
of a material fact or omitted or omits to state any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Rule 434 Prospectus conforms to the
requirements of Rule 434 of the Act.
(iv) The statements in the Prospectus in the sections captioned
"Management" and "Description of Capital Stock," in each case insofar as
such statements reflect a summary of the material legal matters or the
documents referred to therein, fairly and accurately present the
information called for by the Act and the applicable rules and regulations
promulgated thereunder.
(v) To the knowledge of such counsel, there are no statutes or
regulations, provisions of the Delaware General Corporation Law or any
pending or threatened litigation or governmental proceedings against the
Company required to be described in the Prospectus which are not so
described, nor any contracts or documents of a character required to be
described in or filed as a part of the Registration Statement which are not
described or filed as required.
(vi) Neither the Company nor any of its subsidiaries is an
"investment company" or, to the knowledge of such counsel, a person
"controlled by" an "investment company" within the meaning of the
Investment Company Act.
(vii) The certificates for the Shares to be delivered by the Selling
Stockholders hereunder are in due and proper form, and when duly
countersigned by the Company's transfer agent and delivered to the
Representatives against payment of the agreed consideration therefor in
accordance with the provisions of this Agreement and the Pricing Agreement,
the Shares represented thereby will be duly authorized and validly issued,
fully paid and nonassessable and free of preemptive rights and, to the
knowledge of such counsel, will be free of any security interest, claim,
lien, encumbrance or adverse interest of any nature, or rights of first
refusal in favor of,
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stockholders with respect to any of the Shares or the issuance or sale
thereof, pursuant to the Certificate of Incorporation or by-laws of the
Company and, to such counsel's knowledge, there are no contractual
preemptive rights, rights of first refusal, rights of co-sale or other
similar rights which exist with respect to any of the Shares or the
issuance and sale thereof; and the Shares to be sold by the Selling
Stockholders hereunder have been duly and validly authorized and qualified
for listing on the New York Stock Exchange, subject to notice of issuance.
(viii) With respect to each Selling Stockholder, this Agreement and
the Pricing Agreement have been duly authorized, executed and delivered by
or on behalf of each such Selling Stockholder; the Agents and the Custodian
for each such Selling Stockholder have been duly and validly authorized to
carry out all transactions contemplated herein on behalf of each such
Selling Stockholder; and the execution and performance of this Agreement
and the Pricing Agreement, the sale and transfer of the Shares by such
Selling Stockholder and the consummation of the transactions contemplated
herein by such Selling Stockholder will not contravene, conflict with any
of the provisions of, or result in a breach or default under, any
agreement, franchise, license, indenture, mortgage, deed of trust or other
agreement or instrument known to such counsel to which any of such Selling
Stockholders is a party or by which any are bound or to which any of the
property of such Selling Stockholders is subject, nor will such actions
violate any order, rule or regulation known to such counsel of any court or
regulatory or governmental body having jurisdiction over any of such
Selling Stockholders or any of their properties; and no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated by this
Agreement and the Pricing Agreement involving the sale and transfer of
Shares by the Selling Stockholders, except such as may be required under
the Act or state securities laws as to which counsel need express no
opinion.
(ix) Each Selling Stockholder has full right, power and authority to
enter into this Agreement and the Pricing Agreement and to sell, transfer
and deliver the Shares to be sold on the Closing Date or the Option Closing
Date, as the case may be, by such Selling Stockholder hereunder; upon
registration in the name of the Underwriters of such Shares to be sold by
such Selling Stockholder hereunder, the Underwriters (who counsel may
assume to be bona fide purchasers) will acquire valid title to such Shares
so sold, free and clear of all voting trust arrangements, security
interests, claims, liens, encumbrances, community property rights or any
adverse interests of any nature imposed on such Shares by such Selling
Stockholder or the Company.
(x) This Agreement and the Pricing Agreement are legal, valid and
binding agreements of each Selling Stockholder except as enforceability of
the same may be limited by bankruptcy, insolvency, reorganization,
moratorium or
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other similar laws affecting creditors' rights generally and by
general principles of equity, and except that such counsel need express no
opinion to those provisions relating to indemnities for liabilities arising
under the Act.
(xi) The Power of Attorney and Custody Agreement have been duly
executed and delivered by each Selling Stockholder and constitute valid and
binding agreements of each such Selling Stockholder in accordance with
their terms, except as enforceability of the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity,
and except that such counsel need express no opinion to those provisions
relating to indemnities for liabilities arising under the Act.
In rendering such opinion, such counsel may state that they are
relying upon the certificate of the Selling Stockholders and of officers of the
Company and the transfer agent for the Common Stock, as to the number of shares
of Common Stock at any time or times outstanding, and that insofar as their
opinion under clause (iii) above relates to the accuracy and completeness of the
Prospectus and Registration Statement, it is based upon a general review with
the Company's representatives and independent accountants of the information
contained therein, without independent verification by such counsel of the
accuracy or completeness of such information. Such counsel may also rely, as to
factual matters, on certificates of officers of the Company and of the Selling
Stockholders, in which case their opinion is to state that they are so doing and
copies of such certificates are to be attached to the opinion unless such
certificates (or the information therein) have been furnished to the
Representatives otherwise.
(e) That the Representatives shall have received on the Closing Date
a favorable opinion dated the Closing Date from Xxxxx, Day, Xxxxxx & Xxxxx,
counsel for the Underwriters, as to such matters as the Representatives may
reasonably require.
(f) That the Representatives shall have received letters addressed to
the Representatives and dated the date hereof and the Closing Date from Deloitte
& Touche LLP, independent public accountants for the Company, to the effect set
forth in Schedule III. There shall not have been any change or decrease
specified in the letters referred to in this subparagraph which makes it
impractical or inadvisable in the judgment of the Representatives to proceed
with the public offering or purchase of the Shares as contemplated hereby.
(g) That (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company nor any material
increase in the short or long-term debt of the Company from that set forth or
contemplated in the Registration Statement; (iii) there shall not have been,
since the respective dates as to which information is given in the Registration
Statement and the Prospectus, except as may otherwise be set forth or
contemplated in the Registration Statement and the Prospectus, any material
adverse
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change in the financial condition or results of operations of the Company; (iv)
the Company shall not have incurred any material liabilities or obligations,
direct or contingent (whether or not in the ordinary course of business), other
than those reflected in the Registration Statement, and (v) all of the
representations and warranties of the Company contained in this Agreement shall
be true and correct on and as of the date hereof and the Closing Date as if made
on and as of each such date, and the Representatives shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the principal financial officer (or such other officers as are acceptable to
the Representatives) to the effect set forth in this Section 6(g) and in Section
6(h) hereof.
(h) That the Company shall not have failed at or prior to the Closing
Date to have performed or complied in all material respects with any of the
agreements herein contained and required to be performed or complied with by it
at or prior to the Closing Date.
(i) Within 24 hours after the Registration Statement becomes
effective, or within such longer period as to which the Representatives shall
have consented, the Shares shall have been qualified for sale or exempted from
such qualification under the securities laws of such jurisdictions as the
Representatives shall have designated prior to the time of execution of the
Pricing Agreement and such qualification or exemption shall continue in effect
to and including the Closing Date.
(j) That the representations and warranties of each Selling
Stockholder contained in this Agreement shall be true and correct on and as of
the date hereof and the Closing Date as if made on and as of each such date, and
the Representatives shall have received a certificate, dated the Closing Date,
to the effect set forth in this Section 6(j).
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Option Closing
Date of the conditions set forth in paragraphs (a) through (j); except that the
opinions called for in paragraphs (c), (d) and (e) shall be revised to reflect
the sale of Additional Shares and shall be dated the Option Closing Date, if
different from the Closing Date.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act or the Exchange Act from and against any and all losses,
claims, damages or liabilities, joint or several, whatsoever (including any
investigation, legal or other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted) to which such Underwriter, or such controlling person may become
subject, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus or
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the Registration Statement or the Prospectus or in any amendment or supplement
thereto or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred, except insofar as such losses, claims, damages or
liabilities arise out of or are based upon any such untrue statement or omission
or allegation thereof that has been made therein or omitted therefrom in
reliance upon and in conformity with information relating to such Underwriter
furnished in writing to the Company by or on behalf of any Underwriter through
the Representatives expressly for use therein; provided, however, that the
indemnification contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) with respect to any action or claim arising from
the sale of the Shares by such Underwriter brought by any person who purchased
Shares from such Underwriter if (i) a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have been furnished
to the Underwriter prior to the written confirmation of the sale involved) shall
not have been given or sent to such person by or on behalf of the Underwriter
with or prior to the written confirmation of the sale involved and (ii) the
untrue statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (as amended or supplemented if
amended or supplemented as aforesaid).
(b) The Selling Stockholders, severally in proportion to the number
of Shares to be sold by each of them hereunder, agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act or the Exchange Act from and against any and all
losses, claims, damages or liabilities, joint or several, whatsoever (including
any investigation, legal or other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted) to which such Underwriter, or such controlling person may become
subject, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus or the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Selling Stockholder specifically for
inclusion therein, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred, except insofar as such losses, claims, damages or liabilities arise
out of or are based upon any such untrue statement or omission or allegation
thereof that has been made therein or omitted therefrom in reliance upon and in
conformity with information
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relating to such Underwriter furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives expressly for use therein;
provided, however, that the indemnification contained in this paragraph with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) with respect to any
action or claim arising from the sale of the Shares by such Underwriter brought
by any person who purchased Shares from such Underwriter if (i) a copy of the
Prospectus (as amended or supplemented if any amendments or supplements thereto
shall have been furnished to the Underwriter prior to the written confirmation
of the sale involved) shall not have been given or sent to such person by or on
behalf of the Underwriter with or prior to the written confirmation of the sale
involved and (ii) the untrue statement or omission of a material fact contained
in such Preliminary Prospectus was corrected in the Prospectus (as amended or
supplemented if amended or supplemented as aforesaid). In no event, however,
shall the liability of any Selling Stockholder for indemnification under this
Section 7(b) exceed the proceeds received by such Selling Stockholder from the
sale of Shares under this Agreement.
(c) If any action or claim shall be brought against any Underwriter
or any person controlling such Underwriter, in respect of which indemnity may be
sought against the Company, such Underwriter shall promptly notify the Company
in writing, and the Company shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. Any Underwriter or
any such person controlling such Underwriter shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person and shall be reimbursed as they are
incurred unless (i) the Company has agreed in writing to pay such fees and
expenses, (ii) the Company has failed to assume the defense and employ counsel
or (iii) the named parties to any such action (including any impleaded party)
included such Underwriter or controlling person and the Company and such
Underwriter or controlling person shall have been advised by such counsel that
there may be one or more legal defenses available to it that are different from
or additional to those available to the Company and that may also result in a
conflict of interest (in which case if such Underwriter or controlling person
notifies the Company, the Company shall not have the right to assume the defense
of such action on behalf of such Underwriter or controlling person, it being
understood, however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys for all such Underwriters and controlling persons, which firm shall
be designated in writing by the Representatives). The Company shall not be
liable for any settlement or any such action effected without the written
consent of the Company, but if settled with the written consent of the Company,
or if there shall be a final judgment for the plaintiff in any such action and
the time for filing all appeals has expired, the Company agrees to indemnify
and hold
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harmless any Underwriter and any such controlling person from and against any
loss or liability by reason of such settlement or judgment.
(d) Each Underwriter will severally indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and
each Selling Stockholder, and any person controlling the Company within the
meaning of the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with respect to
information relating to such Underwriter furnished in writing to the Company by
or on behalf of such Underwriter through the Representatives expressly for use
in the Registration Statement, the Prospectus or any Preliminary Prospectus. If
any action or claim shall be brought or asserted against the Company, any of its
directors, any such officer, any such Selling Stockholder, or any such
controlling person based on the Registration Statement, the Prospectus or any
Preliminary Prospectus and in respect of which indemnity may be sought against
any Underwriter, such Underwriter shall have the rights and duties given to the
Company pursuant to Section 7(c) hereof (except that if the Company shall have
assumed the defense thereof, such Underwriter shall not be required to do so,
but may employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Company, its directors, any such officer, any such Selling
Stockholder and any such controlling person shall have the rights and duties
given to the Underwriters by Section 7(c) hereof.
(e) (i) If the indemnification provided for in this Section 7 is
unavailable as a matter of law to any indemnified party under this Section 7 in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by damages,
liabilities or expenses (A) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Stockholders and the
Underwriters from the offering of the Shares or (B) if the allocation provided
by clause (A) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (A)
above but also the relative fault of the Company, the Selling Stockholders 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. The respective relative benefits received by
the Company, the Selling Stockholders and the Underwriters shall be deemed to be
in the same proportion in the case of the Company and the Selling Stockholders,
as the total price paid to the Company and the Selling Stockholders for the
Shares by the Underwriters (net of underwriting discount but before deducting
expenses), and in the case of the Underwriters as the underwriting discount
received by them bears to the total of such amounts paid to the Company and the
Selling Stockholders and received by the Underwriters as underwriting discount,
in each case as contemplated by the Prospectus. The relative fault of the
Company, the Selling Stockholders and the Underwriters shall be determined by
reference to, among other things, whether the
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untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses referred to
in this Section shall be deemed to include, subject to the limitations set forth
in this Section, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
(ii) The Company, the Selling Stockholders and the Underwriters
agree that the determination of contribution pursuant to this Section based on
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph would not be just and equitable (even if the several Underwriters were
treated as one entity for such purpose). Notwithstanding the provisions of this
Section, no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section are several in proportion to their respective
underwriting commitments and not joint. In no event, however, shall the
liability of any Selling Stockholder for contribution under this Section
7(e)(ii) exceed the proceeds received by such Selling Stockholder from the sale
of Shares under this Agreement.
(f) The indemnity and contribution agreements contained in this
Section and the representations and warranties of the Company and the Selling
Stockholders set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter, the Company or its
directors or officers or any Selling Stockholder, (or any person controlling the
Company or any Selling Stockholder), (ii) acceptance of any Shares and payment
therefor hereunder and (iii) any termination of this Agreement. A successor or
assign of an Underwriter, the Company or its directors or officers, and their
legal and personal representatives (or of any person controlling an Underwriter,
or the Company or any Selling Stockholder) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section.
(g) The Underwriters severally confirm, and the Company and each
Selling Stockholder acknowledge, that the statements with respect to the public
offering of the Shares set forth on the cover page of, the legend concerning
stabilization on the inside front cover page of, the names of the Underwriters
and the number of Shares that they are purchasing, the concession and
reallowance figures and the information contained in the eighth paragraph, in
each case appearing under
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the caption "Underwriting" in, the Prospectus are correct and constitute the
only information furnished in writing by or on behalf of the Underwriters
expressly for use in the Registration Statement, the Prospectus or any
Preliminary Prospectus.
SECTION 8. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective immediately as to Sections 5, 7, 10 and 11 and as to all other
provisions at 10:00 A.M., Chicago Time, on the day following the date upon which
the Pricing Agreement is executed and delivered, unless such a day is a
Saturday, Sunday or holiday (and in that event this Agreement shall become
effective at such hour on the business day next succeeding such Saturday, Sunday
or holiday); but this Agreement shall nevertheless become effective at such
earlier time after the Pricing Agreement is executed and delivered as the
Representatives may determine on and by notice to the Company and the Selling
Stockholders or by release of any Shares for sale to the public. For the
purposes of this Section, the Shares shall be deemed to have been so released
upon the release for publication of any newspaper advertisement relating to the
Shares or upon the release by the Representatives of telecommunications (i)
advising Underwriters that the Shares are released for public offering, or (ii)
offering the Shares for sale to securities dealers, whichever may occur first.
SECTION 9. DEFAULT OF UNDERWRITERS. If any one or more of the Underwriters
shall fail or refuse to purchase Firm Shares which it or they have agreed to
purchase under this Agreement and the Pricing Agreement and the aggregate number
of Firm Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of Firm Shares, each non-defaulting Underwriter shall be obligated, severally,
in the proportion which the number of Firm Shares set forth opposite its name in
Schedule I bears to the aggregate number of Firm Shares set forth opposite the
names of all non-defaulting Underwriters or in such other proportion as the
Representatives may specify in accordance with the Agreement Among Underwriters
to purchase the Firm Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase. If any Underwriter or Underwriters
shall fail or refuse to purchase Firm Shares and the aggregate number of Firm
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares and arrangements satisfactory to the
Representatives and the Company for the purchase of such Firm Shares are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case which does not result in termination of this Agreement, either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
such default of any such Underwriter under this Agreement.
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(b) Any notice under this Section 9 may be made by telecopy or
telephone but shall be subsequently confirmed by letter.
SECTION 10. TERMINATION OF AGREEMENT. This Agreement and the Pricing
Agreement shall be subject to termination by notice given by the Representatives
to the Company, if (a) after the execution and delivery of this Agreement and
the Pricing Agreement and prior to the Closing Date (and with respect to the
Additional Shares, the Option Closing Date) (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York or in Chicago shall have been declared by either Federal,
New York or Illinois State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the judgment of the Representatives, impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus. Notice of such
cancellation shall be given to the Company by telecopy or telephone but shall be
subsequently confirmed by letter.
SECTION 11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale to the
Underwriters of the Shares on the Closing Date is not consummated because any
condition to the Underwriters' obligations hereunder is not satisfied or because
of any refusal, inability or failure on the part of the Company or the Selling
Stockholders to perform any agreement herein or to comply with any provision
hereof, unless such failure to satisfy such condition or to comply with any
provision hereof is due to the default or omission of any Underwriter, the
Company and the Selling Stockholders agree to reimburse you and the other
Underwriters upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel), but without any further obligation of the
Company for lost profits or otherwise, that shall have been reasonably incurred
by you and them in connection with the proposed purchase and the sale of the
Shares. Any such termination shall be without liability of any party to any
other party except that the provisions of this Section, Section 5 and Section 7
shall at all times be effective and shall apply.
SECTION 12. NOTICES. Except as otherwise provided in Sections 9 and 10
hereof, notice given pursuant to any of the provisions of this Agreement shall
be in writing and shall be delivered (a) if to the Company, at the office of the
Company at TransTechnology Corporation, 000 Xxxxx Xxxx, Xxxxxxx Xxxxxx, Xxx
Xxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, with a copy to Xxxx Xxxxxx & Parks
LLP, 0000 XX Xxxxxxx Xxxxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
Attention: F. Xxxxxx X'Xxxxx or (b) if to the Representatives, at the offices of
ABN AMRO Chicago
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Corporation, 000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Finance Department, with a copy to Xxxxx, Day, Xxxxxx &
Xxxxx, 00 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx or
(c) if to the Selling Stockholders, to the Agents and the Custodian at such
address as they have previously furnished to the Company and the
Representatives, with a copy to Xxxx Xxxxxx & Parks LLP, 0000 XX Xxxxxxx
Xxxxxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Attention: F. Xxxxxx
X'Xxxxx, or in any case to such other address as the person to be notified may
have requested in writing.
SECTION 13. SUCCESSORS. The Agreement and the Pricing Agreement are made
solely for the benefit of the several Underwriters, the Company, their directors
and officers and other controlling persons referred to in Section 7 hereof, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or the Pricing Agreement.
The term "successors and assigns" as used in this Agreement shall not include a
purchaser from any of the several Underwriters of any of the Shares in his
status as such purchaser.
SECTION 14. REPRESENTATION OF UNDERWRITERS. The Representatives will act
for the several Underwriters in connection with the purchase, offering and sale
of the Shares, and any action taken by the Representatives will be binding upon
all the Underwriters.
SECTION 15. PARTIAL UNENFORCEABILITY. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
SECTION 16. APPLICABLE LAW. This Agreement and the Pricing Agreement shall
be governed by and construed in accordance with the laws of the State of
Illinois.
SECTION 17. COUNTERPARTS. This Agreement may be signed in various
counterparts which together shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
TRANSTECHNOLOGY CORPORATION
BY:_______________________
NAME:
TITLE:
The Selling Stockholders
named in Schedule II
hereto, acting severally
BY:
------------------------------
Attorney-in-Fact
ACCEPTED AND DELIVERED AS OF
THE DATE FIRST WRITTEN ABOVE.
ABN AMRO CHICAGO CORPORATION
EVEREN SECURITIES, INC.
ACTING AS REPRESENTATIVES OF
THE SEVERAL UNDERWRITERS NAMED
IN SCHEDULE I HERETO.
BY: ABN AMRO CHICAGO CORPORATION
BY: _____________________________
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36
TRANSTECHNOLOGY CORPORATION
SCHEDULE I
UNDERWRITERS
NUMBER OF
NAME FIRM SHARES
-------------------------------------------------------------------------------
ABN AMRO Chicago Corporation.................................
EVEREN SECURITIES, INC....................................... ________
TOTAL......................................... ========
37
TRANSTECHNOLOGY CORPORATION
SCHEDULE II
SELLING STOCKHOLDERS
NUMBER OF
FIRM SHARES
NAME TO BE SOLD
Xxxxxxx X. Xxxxxxxxx............................................
Xxxxxxx X. Xxxxxx...............................................
Xxxxxxxx X. Xxxxxx.............................................. ________
TOTAL............................................ ========
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TRANSTECHNOLOGY CORPORATION
SCHEDULE III
Comfort Letter of Deloitte & Touche LLP
(1) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act.
(2) In their opinion the consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the consolidated financial statements of the Company
from which the information presented under the caption "Selected Consolidated
Financial Data" has been derived which are stated therein to have been examined
by them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act.
(3) On the basis of specified procedures (but not an examination in
accordance with generally accepted auditing standards), including inquiries of
certain officers of the Company and its subsidiaries responsible for financial
and accounting matters as to transactions and events subsequent to ______, 1997,
a reading of minutes of meetings of the stockholders and directors of the
Company and its subsidiaries since ___________, 1997, a reading of the latest
available interim unaudited consolidated financial statements of the Company and
its subsidiaries (with an indication of the date thereof) and other procedures
as specified in such letter, nothing came to their attention which caused them
to believe that (i) the unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act or that
such unaudited financial statements are not fairly presented in accordance with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Registration Statement, [cover pro forma financial statements] and (ii) at a
specified date not more than five days prior to the date thereof in the case of
the first letter and not more than two business days prior to the date thereof
in the case of the second and third letters, there was any change in the capital
stock or long-term debt or short-term debt (other than normal payments) of the
Company and its subsidiaries on a consolidated basis or any decrease in
consolidated net current assets or consolidated] stockholders' equity as
compared with amounts shown on the latest unaudited balance sheet of the Company
included in the Registration Statement or for the period from the date of such
balance sheet to a date not more than five days prior to the day thereof in the
case of the first letter and not more than two business days prior to the date
thereof in the case of the second and third letters, there were any decreases,
as compared with the
39
corresponding period of the prior year, in consolidated net sales, consolidated
income before income taxes or in the total or per share amounts of consolidated
net income except, in all instances, for changes or decreases which the
Prospectus discloses have occurred or may occur or which are set forth in such
letter.
(4) They have carried out specified procedures, which have been agreed
to by the Representatives, with respect to certain information in the Prospectus
specified by the Representatives, and on the basis of such procedures, they have
found such information to be in agreement with the general accounting records of
the Company and its subsidiaries.
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40
Exhibit A
1,100,000 SHARES*
TRANSTECHNOLOGY CORPORATION
COMMON STOCK
PRICING AGREEMENT
__________, 1997
ABN AMRO CHICAGO CORPORATION
EVEREN SECURITIES, INC.
Individually and as Representatives of the
Several Underwriters Named in Schedule I
to the Underwriting Agreement
c/o ABN AMRO Chicago Corporation
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated _______ __,
1997 (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule I thereto (collectively, the "Underwriters"), for
whom you are acting individually and as representatives (the "Representatives"),
of the above referenced Common Stock (the "Shares") of TransTechnology
Corporation (the "Company").
Pursuant to Section 3 of the Underwriting Agreement, the Company
agrees with each of the Underwriters as follows:
1. The public offering price per share of the Shares determined as
provided in said Section 3 shall be $_______.
2. The purchase price per share of the Shares to be paid by the
several Underwriters shall be $________, being an amount equal to the public
offering price set forth above, less $_______ per Share.
--------
* Plus an option to purchase up to 165,000 Additional Shares to cover
over-allotments.
41
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
TRANSTECHNOLOGY CORPORATION
BY:______________________________
NAME:
TITLE:
Confirmed and Accepted, as of the date
first above written for themselves and as
Representatives of the other Underwriters
named in the Underwriting Agreement:
ABN AMRO CHICAGO CORPORATION
EVEREN SECURITIES, INC.
Acting as Representatives of the Several
Underwriters named in Schedule I to
the Underwriting Agreement
BY: ABN AMRO CHICAGO CORPORATION
BY: _____________________________
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