EXHIBIT 1.1
3,500,000 SHARES
TRAVEL SERVICES INTERNATIONAL, INC.
COMMON STOCK, $.01 PAR VALUE
UNDERWRITING AGREEMENT
________, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
ING BARING XXXXXX XXXX LLC
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sir or Madam:
1. INTRODUCTORY. Travel Services International, Inc., a Delaware
corporation ("Company"), proposes to issue and sell 1,500,000 shares of its
COMMON STOCK, $.01 PAR VALUE PER SHARE ("Securities"), and the stockholders
listed in Schedule A hereto ("Selling Stockholders") propose severally to sell
an aggregate of 2,000,000 outstanding shares of the Securities (such 3,500,000
shares of Securities being hereinafter referred to as the "Firm Securities").
The Company also proposes to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 525,000 additional shares of its
Securities, as set forth below (such 525,000 additional shares being hereinafter
referred to as the "Optional Securities"). The Firm Securities and the Optional
Securities are herein collectively called the "Offered Securities." The Company
and the Selling Stockholders hereby agree with the several Underwriters named in
Schedule B hereto ("Underwriters") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-56567) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("Commission") and either (A)
has been declared effective under the
Securities Act of 1933 ("Act") and is not proposed to be amended or (B)
is proposed to be amended by amendment or post-effective amendment. If
such registration statement (the "initial registration statement") has
been declared effective, either (A) an additional registration
statement (the "additional registration statement") relating to the
Offered Securities may have been filed with the Commission pursuant to
Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("Rule 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has advised
the Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration statement
means the date and time as of which such registration statement is
filed and becomes effective pursuant to Rule 462(b). "Effective Date"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant
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to the General Instructions of the Form on which it is filed and
including all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule
430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as
the "Initial Registration Statement". The additional registration
statement, as amended at its Effective Time, including the contents of
the initial registration statement incorporated by reference therein
and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "Additional
Registration Statement". The Initial Registration Statement and the
Additional Registration are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "Prospectus". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective Date
of the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all material
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respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such in
Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except for such jurisdictions where the failure to so
qualify would not have a material adverse effect on the assets or
properties, business, prospects, results of operations or financial
condition of the Company or its subsidiaries, taken as a consolidated
whole (a "Material Adverse Effect").
(iv) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except where the
failure to so qualify would not have a Material Adverse Effect; all of
the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid
and nonassessable and is owned by the Company, directly or through
subsidiaries, free from liens, encumbrances and defects; and no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in any of the
Subsidiaries are outstanding. The Company does not own or control,
directly or indirectly, any corporation, association or other entity
other than the subsidiaries listed in Exhibit 21 to the Registration
Statement.
(v) The Securities to be purchased by the Underwriters from
the Company have been duly authorized for issuance and sale pursuant to
this Agreement and, when issued and delivered by the Company pursuant
to this Agreement, will be validly issued, fully paid and
nonassessable. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under
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the caption "Capitalization" (other than for subsequent issuances, if
any, pursuant to employee benefit plans described in the Prospectus or
upon exercise of outstanding options or warrants described in the
Prospectus). The Securities (including the Common Shares) conform in
all material respects to the description thereof contained in the
Prospectus. All of the issued and outstanding Securities have been duly
authorized and validly issued, are fully paid and nonassessable and
have been issued in compliance with federal and state securities laws.
None of the outstanding Securities were issued in violation of any
preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights
of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any
capital stock of the Company or any of its subsidiaries other than
those accurately described in the Prospectus. The description of the
Company's stock option and other stock plans or arrangements, and the
options or other rights granted thereunder, set forth in the Prospectus
accurately and fairly presents the information required to be shown
with respect to such plans, arrangements, options and rights.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) The Securities are listed on The Nasdaq Stock Market.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Offered Securities, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach
5
or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their
properties, or any agreement or instrument to which the Company or any
Subsidiary is a party or by which the Company or any subsidiary is
bound or to which any of the properties of the Company or any
subsidiary is subject, or the charter or by-laws of the Company or any
subsidiary. Neither the Company or any of its subsidiaries is in
violation of its charter or by-laws or is in default (or, with the
giving of notice or lapse of time, would be in default) under any
indenture, mortgage, loan or credit agreement, note, contract,
franchise, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject which violation or default would have a
Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the Company
and its subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(xiv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that might have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(xv) The Company and its subsidiaries own, possess, have a
right to use or can acquire on reasonable terms, trademarks, trade
names and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"Intellectual Property Rights") necessary to
6
conduct the business now operated by them, or presently employed by
them, including, but not limited to, all Intellectual Property Rights
related to the Universal Agent and Universal Manager software programs,
and have not received any notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property
Rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
The Company has a right to use the name "The Travel Company" and has
not received any notice of infringement of or conflict with asserted
rights of others with respect to such name.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute,
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
pending investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xviii) Xxxxxx Xxxxxxxx LLP, who have expressed their opinion with
respect to the consolidated financial statements (which term as used in
this Agreement includes the related notes thereto) and supporting
schedules of the Company and its subsidiaries, other than Lexington (as
defined below), as well as the financial statements of each of Cruises
Only, Inc. ("Cruises Only"), 800-Ideas, Inc. ("Travel 800") and
Cruises, Inc. ("Cruises Inc.") filed with the Commission as a part of
the Registration Statement and included in the Prospectus, are
independent public or
7
certified public accountants with respect to each of the Company,
Cruises Only, Travel 800 and Cruises Inc. as required by the Securities
Act. Ernst & Young LLP, who have expressed their opinion with respect
to the financial statements (which term as used in this Agreement
includes the related notes thereto) and supporting schedules of
Lexington Services Associates, Ltd. ("Lexington") filed with the
Commission as a part of the Registration Statement and included in the
Prospectus, are independent public or certified public accountants with
respect to Lexington as required by the Securities Act. The financial
statements included in each Registration Statement and the Prospectus
present fairly the financial position of the Company, its consolidated
subsidiaries, Cruises Only, Travel 800, Cruises Inc. and Lexington as
of the dates shown and their results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis and the schedules included
in each Registration Statement present fairly the position, results of
operations and cash flows of the Company and the subsidiaries on a
consolidated basis, Cruises Only, Travel 800, Cruises, Inc. and
Lexington, respectively, at the dates specified and for the periods
specified. The supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
Such financial statements and supporting schedules have been prepared
in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto, and all adjustments
necessary for a fair presentation of results for such period have been
made. No other financial statements or supporting schedules are
required to be included in the Registration Statement. The financial
data set forth in the Prospectus under the captions "Prospectus
Summary--Summary Historical and Pro Forma Financial Data,"
"Capitalization" and "Selected Historical and Pro Forma Financial Data"
fairly present the information set forth therein on a basis consistent
with that of the audited and pro forma financial statements contained
in the Registration Statement and the books and records of the Company
and the subsidiaries, as applicable. The pro forma financial statements
of the Company together with the related notes thereto included under
the captions "Prospectus Summary--Summary Historical and Pro Forma
Combined Financial Data," and "Selected Historical and Pro Forma
Financial Data" and elsewhere in the Prospectus and in the Registration
Statement present fairly the information contained therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
presented on the pro forma bases described therein, and the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(xix) Except as disclosed in the Prospectus, since the date of
the latest
8
audited financial statements included in the Prospectus (a) there has
been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock; (b) the Company and its subsidiaries,
considered as one entity, have not incurred any material liability or
obligation, indirect, direct or contingent, not in the ordinary course
of business nor entered into any material transaction or agreement not
in the ordinary course of business; and (c) there has been no adverse
change with respect to the goodwill and other intangible assets
(collectively, the "Intangible Assets") such that, as of the date
hereof, the Intangible Assets, net of accumulated amortization, do not
have a value, adjusted for the acquisition of Lexington, at least equal
to the value reflected in the consolidated financial statements of the
Company and its subsidiaries and no part of the Intangible Assets are
required to be written down in conformity with generally accepted
accounting principles applied on a basis consistent with prior periods.
(xx) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(xxi) The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns
and have paid all taxes required to be paid by any of them and, if due
and payable, any related or similar assessment, fine or penalty levied
against any of them, except where such failure to file or pay would not
have a Material Adverse Effect. The Company has made adequate charges,
accruals and reserves in the applicable financial statements referred
to in Section 2(a)(xviii) above in respect of all federal, state and
foreign income and franchise taxes for all periods as to which the tax
liability of the Company and any of its subsidiaries has not been
finally determined.
(xxii) Neither the Company, nor to the Company's best
knowledge, any of its affiliates or any of the subsidiaries or any of
their affiliates, has taken or will take, directly or indirectly, any
action designed to or that might be reasonably expected to cause or
result in stabilization or manipulation of the price of the Securities
to facilitate the sale or resale of the Securities.
(xxiii) There are no business relationships or related-party
transactions involving the Company, any subsidiary or any other person
required to be described in the Prospectus which have not been
described as required.
9
(xxiv) Neither the Company nor any of its subsidiaries nor, to
the best of the Company's knowledge, any employee or agent of the
Company or any subsidiary has made any contribution or other payment to
any official of, or candidate for, any federal, state or foreign office
in violation of any law or of the character required to be disclosed in
the Prospectus.
(xxv) The Company and each of the subsidiaries currently
maintain a system of accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles as applied
in the United States and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxvi) The Company has made all filings required to be made by
it under the Securities Exchange Act of 1934.
(xxvii) The Company has entered into the acquisition agreement
(the "Lexington Agreement") with Lexington pursuant to which the
Company has acquired the entire partnership interest in Lexington. The
Lexington Agreement is in full force and effect, has been duly and
validly authorized, executed and delivered by the parties thereto, and
is valid and binding on the parties thereto in accordance with its
terms and, to the Company's knowledge, none of the parties thereto is
in default in any respect thereunder.
(xxviii) The Company has entered into an asset sale agreement (the
"ABC Agreement") with Xxxx Elsevier Inc. and Xxxx Elsevier Properties
Inc. relating to its ABC Corporate Services division ("ABC") pursuant
to which the Company has acquired all of the assets and certain
liabilities relating to ABC. The ABC Agreement is in full force and
effect, has been duly and validly authorized, executed and delivered by
the parties thereto, and is valid and binding on the parties thereto in
accordance with its terms and, to the Company's knowledge, none of the
parties thereto is in default in any respect thereunder.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power
10
and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date hereunder; and upon the
delivery of and payment for the Offered Securities on each Closing Date
hereunder the several Underwriters will acquire valid and unencumbered
title to the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date.
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles.
(iii) The Selling Stockholder's Irrevocable Power of Attorney
and Custody Agreement (the "POA/Custody Agreement") signed by such
Selling Stockholder and the Company, as custodian (the "Custodian"),
relating to the deposit of the Securities to be sold by such Selling
Stockholder and appointing certain individuals named therein as such
Selling Stockholder's attorneys-in-fact (each, an "Attorney-in-Fact")
to the extent set forth therein relating to the transactions
contemplated hereby and by the Prospectus, of such Selling Stockholder
has been duly authorized, executed and delivered by such Selling
Stockholder and is a valid and binding agreement of such Selling
Stockholder, enforceable in accordance with its terms, except as rights
to indemnification thereunder may be limited by applicable law and
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles.
(iv) The execution and delivery by such Selling Stockholder
of, and the performance by such Selling Stockholder of its obligations
under, this Agreement and the POA/Custody Agreement will not contravene
or conflict with, result in a breach of, or constitute a default under,
or require the consent of any other party to, the charter or by-laws,
partnership agreement, trust agreement or other organizational
documents of such Selling Stockholder or any other agreement or
instrument to which such Selling Stockholder is a party or by which it
is bound or under which it is entitled to any right or benefit, any
provision of applicable law or any judgment, order, decree or
regulation applicable to such Selling Stockholder of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Stockholder. No consent,
approval, authorization or other order of, or registration or filing
with, any court or other governmental authority or agency, is required
for the consummation by such Selling Stockholder of the transactions
contemplated in this Agreement, except
11
such as have been obtained or made and are in full force and effect
under the Act, applicable state securities or blue sky laws and from
the NASD.
(v) No consent, approval or waiver is required under any
instrument or agreement to which any Selling Stockholder is a party or
by which it is bound or under which it is entitled to any right or
benefit, in connection with the offering, sale or purchase by the
Underwriters of any of the Securities which may be sold by any Selling
Stockholder under this Agreement or the consummation by any Selling
Stockholder of any of the other transactions contemplated hereby.
(vi) All information furnished by or on behalf of such Selling
Stockholder in writing expressly for use in the Registration Statement
and Prospectus is, and on the First Closing Date and the Optional
Closing Date will be, true, correct, and complete in all material
respects, and does not, and on the First Closing Date and the Optional
Closing Date will not, contain any untrue statement of a material fact
or omit to state any material fact necessary to make such information
not misleading. Such Selling Stockholder confirms as accurate the
number of Securities set forth opposite such Selling Stockholder's name
in the Prospectus under the caption "Principal and Selling
Stockholders" (both prior to and after giving effect to the sale of the
Securities).
(vii) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation
of the price of the Securities to facilitate the sale or resale of the
Securities.
(viii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $ per share, that number of
Firm Securities (rounded up or down, as determined by Credit Suisse First Boston
Corporation ("CSFBC") in its discretion, in order to avoid fractions) obtained
by multiplying 1,500,000 Firm Securities in the case of the Company and the
number of Firm Securities set forth opposite the name of such Selling
Stockholder in Schedule A hereto, in the case of a Selling Stockholder, in each
case by a fraction the numerator of which is the number of Firm Securities set
forth
12
opposite the name of such Underwriter in Schedule B hereto and the denominator
of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under POA/Custody Agreements made with the Company, as
custodian. Each Selling Stockholder agrees that the shares represented by the
certificates held in custody for the Selling Stockholders under such POA/Custody
Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or other event or
termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, at the office of Fulbright
& Xxxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to CSFBC drawn to the order of
the Company in the case of 1,500,000 shares of Firm Securities and the Custodian
in the case of 2,000,000 shares of Firm Securities, at the office of Fulbright &
Xxxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 9:30 A.M., New York
time, on _________, 1998, or at such other time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "First Closing Date". The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the office of CSFBC at least 24 hours prior to the
First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholders from time to time not more than 30 days subsequent to
the date of the Prospectus, the Underwriters may purchase all or less than all
of the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Company agrees to sell to the Underwriters the number of
Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities
13
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, at the office of
Fulbright & Xxxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of the Company, at the office of Fulbright & Xxxxxxxx
L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as CSFBC requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the office of CSFBC at a reasonable time in
advance of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. The
Company and, to the extent herein set forth, the Selling Stockholders agree with
the several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement. The Company will advise CSFBC
promptly of any such filing pursuant to Rule 424(b). If the Effective
Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement and an additional registration statement
is necessary to register a portion of the Offered Securities under the
Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New
14
York time, on the date of this Agreement or, if earlier, on or prior to
the time the Prospectus is printed and distributed to any Underwriter,
or will make such filing at such later date as shall have been
consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
15
Registration Statement, five of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC reasonably
requests. The Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the later of the
execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so
furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC may
reasonably designate and will continue such qualifications in effect so
long as required for the distribution, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of 1934 or
mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request.
(h) For a period of 120 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC, except issuances of Securities pursuant to
the conversion or exchange of convertible or exchangeable securities or
the exercise of warrants or options, in each case outstanding on the
date hereof, grants of employee stock options pursuant to the terms of
a plan in effect on the date hereof and/or approved at the Company's
1998 Annual Meeting of Stockholders, issuances of Securities pursuant
to the exercise of such options or issuances of Securities in
connection with acquisitions by the Company of additional travel
service companies.
16
(i) The Company and each Selling Stockholder agree with the
several Underwriters that the Company and such Selling Stockholder will
pay all expenses incident to the performance of the obligations of the
Company and such Selling Stockholder under this Agreement, for any
filing fees and other expenses (including fees and disbursements of
counsel) in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for the filing fee incident to,
and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association
of Securities Dealers, Inc. of the Offered Securities, for any travel
expenses of the Company's officers and employees and any other expenses
of the Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities, for any transfer and
other stamp taxes on the sale by the Selling Stockholders of the
Offered Securities to the Underwriters and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters (collectively,
the "Expenses"). The Company has agreed with the Selling Stockholders
that it will pay all of the Expenses on the Selling Stockholders'
behalf.
(j) Each Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group on or prior to the First Closing
Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(k) Each Selling Stockholder agrees, for a period of 120 days
after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or
disposal, without the prior written consent of CSFBC.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
17
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Xxxxxx
Xxxxxxxx LLP confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules and
Regulations thereunder with respect to the Company and each of the
subsidiaries, other than Lexington, and stating to the effect that:
(i) in their opinion the financial statements and
schedules of the Company, its consolidated subsidiaries, Cruises
Only, Travel 800 and Cruises Inc. examined by them and included in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on the
unaudited consolidated financial statements of the Company
included in the Registration Statements;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial
statements included in the Registration Statements do
not comply as to form in all material respects with
the applicable accounting requirements of the Act and
the related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest
available balance sheet read by such accountants, or
at a subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its
18
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in
the Prospectus; or
(C) for the period from the closing
date of the latest income statement included in the
Prospectus to the closing date of the latest
available pro forma income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year in
pro forma consolidated net sales or pro forma net
operating income in the total or per share amounts of
pro forma consolidated net income;
except in all cases set forth for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter; and
(v) on the basis of a reading of the unaudited pro
forma consolidated financial statements included in the
Registration Statement and the Prospectus, carrying out
certain specified procedures that would not necessarily reveal
matters of significance with respect to the comments set forth
in this paragraph (v), inquiries of certain officials of the
Company and its consolidated subsidiaries and Lexington who
have responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the unaudited
pro forma consolidated condensed financial statements, nothing
came to their attention that caused them to believe that the
unaudited pro forma consolidated condensed financial
statements do not comply in form in all material respects with
the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of such
19
statements.
In the event that the letters referred to above set
forth any such changes, decreases or increases, it shall be a
further condition to the obligations of the Underwriters that
(A) such letters shall be accompanied by a written explanation
of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B)
such changes, decreases or increases do not, in the sole
judgment of the Representatives, make it impractical or
inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements.
(b) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of Ernst & Young LLP confirming that they are independent public
accountants with respect to Lexington within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating
to the effect that:
(i) in their opinion the financial
statements and schedules of Lexington examined by them and
included in the Registration Statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures
specified by the American Institute of Certified Public
Accountants for a review of interim
20
financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the
unaudited financial statements of Lexington included in the
Registration Statements; and
(iii) they have compared specified dollar
amounts (or percentages derived from such dollar amounts) and
other financial information contained in the Registration
Statements (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of Lexington
subject to the internal controls of Lexington's accounting
system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements.
(c) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no
21
proceedings for that purpose shall have been instituted or, to the
knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters including the Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on The Nasdaq Stock Market's National Market, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(e) The Representatives shall have received the agreement of
each Selling Stockholder selling less than the entire number of shares
of common stock held by such Selling Stockholder, executive officer and
director of the Company that such person agrees, for a period of 120
days after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or
disposal, without the prior written consent of CSFBC.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx,
P.A., counsel for the Company ("Company Counsel"), to the effect that:
(i) The Company has been duly incorporated and is an
existing
22
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification except
for such jurisdictions where the failure to so qualify would
not have a Material Adverse Effect;
(ii) Each subsidiary of the Company is duly
incorporated and is an existing corporation in good standing
in the jurisdiction set forth on Exhibit 21 to the
Registration Statement with corporate power and authority to
own its properties and conduct its business as described in
the Prospectus; and each Subsidiary is duly qualified to do
business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification except for such jurisdictions where the failure
to so qualify would not have a Material Adverse Effect;
(iii) The Offered Securities delivered on such
Closing Date and all other outstanding shares of the Common
Stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Securities. The form of certificate used to
evidence the Common Stock is in due and proper form and
complies with all applicable requirements of the charter and
by-laws of the Company and the General Corporation Law of the
State of Delaware. The description of the Company's stock
option, stock bonus and other stock plans or arrangements, and
the options or other rights granted and exercised thereunder,
set forth in the Prospectus accurately and fairly presents the
information required to be shown with respect to such plans,
arrangements, options and rights;
(iv) All of the issued and outstanding capital stock
of each Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or,
to the best knowledge of such counsel, any pending or
threatened claim.
(v) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be
23
owned by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act;
(vi) The Company is not and, after giving
effect to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940.
(vii) No consent, approval, authorization or
order of, or filing with, any governmental agency or body or
any court is required to be obtained or made by the Company or
any Selling Stockholder for the consummation of the
transactions contemplated by this Agreement or the Custody
Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under
the Act and such as may be required under state securities
laws;
(viii) The execution, delivery and
performance of this Agreement or the Custody Agreement and the
consummation of the transactions herein or therein
contemplated (a) have been duly authorized by all necessary
corporate action on the part of the Company; and (b) will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary;
(ix) The Initial Registration Statement was
declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under the
Act as of the date and time (if determinable) specified in
such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was
included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and,
to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of a Registration Statement or
any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated
under the Act, and each Registration Statement and the
24
Prospectus, and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form
in all material respects with the requirements of the Act and
the Rules and Regulations; the descriptions in the
Registration Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be
shown; and such counsel do not know of any legal or
governmental proceedings required to be described in a
Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in a Registration Statement
or the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in the Registration Statements or the Prospectus;
(x) This Agreement has been duly authorized,
executed and delivered by the Company;
(xi) The Securities have been approved for
listing on The Nasdaq Stock Market;
(xii) The statements (a) in the Prospectus
under the captions "Risk Factors--Effect of Certain Charter
Provisions; Anti-Takeover Effects," "Description of Capital
Stock" and "Shares Eligible for Future Sale" and (b) in Item
14 and Item 15 of the Registration Statement, insofar as such
statements constitute matters of law, summaries of legal
matters, the Company's charter or by-law provisions, documents
or legal proceedings, or legal conclusions, has been reviewed
by such counsel and fairly present and summarize, in all
material respects, the matters referred to therein;
(xiii) To the best knowledge of such
counsel, there are no legal or governmental actions, suits or
proceedings pending or threatened which are required to be
disclosed in the Registration Statement, other than those
disclosed therein;
(xiv) To the best knowledge of such counsel,
there are no contracts or agreements required to be described
or referred to in the Registration Statement or to be filed as
exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits
thereto; and the descriptions thereof and references thereto
are correct in all material respects;
(xv) To the best knowledge of such counsel,
neither the Company
25
nor any subsidiary is in violation of its charter or by-laws
or any law, administrative regulation or administrative or
court decree applicable to the Company or any subsidiary or is
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any material
agreement, except in each such case for such violations or
defaults as would not, individually or in the aggregate,
result in a material adverse change to the Company and its
subsidiaries, taken as a whole.
In addition, such counsel shall state that such counsel have
no reason to believe that any part of a Registration Statement or any
amendment thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading; or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of such
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(g) The Representatives shall have received the opinion
contemplated in the POA/Custody Agreement executed and delivered by
each Selling Stockholder and an opinion, dated such Closing Date, of
_____________________, counsel for the Selling Stockholders, to the
effect that:
(i) Each Selling Stockholder had valid and
unencumbered title to the Offered Securities delivered by such
Selling Stockholder on such Closing Date and had full right,
power and authority to sell, assign, transfer and deliver the
Offered Securities delivered by such Selling Stockholder on
such Closing Date hereunder; and the several Underwriters have
acquired valid and unencumbered title to the Offered
Securities purchased by them from the Selling Stockholders on
such Closing Date hereunder;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by any Selling Stockholder
for the consummation of the transactions contemplated by the
Custody Agreement or this Agreement in connection with the
sale of the Offered Securities sold by the Selling
Stockholders, except such as have been obtained and made under
the Act and such as may be required under state securities
laws
(iii) The execution, delivery and performance of the
Custody Agreement and this Agreement and the consummation of
the transactions therein and herein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any
26
statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over any
Selling Stockholder or any of their properties or any
agreement or instrument to which any Selling Stockholder is a
party or by which any Selling Stockholder is bound or to which
any of the properties of any Selling Stockholder is subject or
the charter or by-laws of any Selling Stockholder which is a
corporation; and
(iv) The Power of Attorney and related Custody
Agreement with respect to each Selling Stockholder has been
duly authorized, executed and delivered by such Selling
Stockholder and constitute valid and legally binding
obligations of each such Selling Stockholder enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
and
(v) This Agreement has been duly authorized, executed
and delivered by each Selling Stockholder.
(h) The Representatives shall have received from Fulbright &
Xxxxxxxx L.L.P., counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representatives may require, and the Selling
Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(i) The Representatives shall have received a certificate,
dated such Closing Date, of the President and the principal financial
or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and (3) of
Rule 462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the
Act, prior to the time the Prospectus was printed and distributed to
any Underwriter; and, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition
27
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(j) The Representatives shall have received a
certificate, dated such Closing Date of the Attorney-in-Fact of each
Selling Stockholder, to the effect that the representations, warranties
and covenants of such Selling Stockholder set forth in Section 2(b) of
this Agreement are true and correct with the same force and effect as
though expressly made by such Selling Stockholder on and as of such
Closing Date and such Selling Stockholder has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such Closing Date.
(k) On the date hereof, the Company and the Selling
Stockholders shall have furnished for review by the Representatives
copies of the POA/Custody Agreements executed by each of the Selling
Stockholders and such further information, certificates and documents
as the Underwriters may reasonably request.
(l) On or before such Closing Date, the
Representatives and counsel for the Representatives shall have received
such information, documents and opinions as they may reasonably require
for the purposes of enabling them to pass upon the issuance and sale of
the Securities as contemplated herein, or in order to evidence the
accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
(m) The Representatives shall have received a letter,
dated such Closing Date, of Xxxxxx Xxxxxxxx L.L.P. which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to such Closing Date for the purposes of
this subsection.
(n) The Representatives shall have received a letter,
dated such Closing Date, of Ernst & Young which meets the requirements
of subsection (b) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
business days prior to such Closing Date for the purposes of this
subsection.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
28
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided, further,
that the obligation of the Company to indemnify the Underwriters pursuant to
this Agreement is subject to the condition that, insofar as such losses, claims,
damages, liabilities or expenses relate to any such untrue statement, alleged
untrue statement, omission or alleged omission made in any of the preliminary
prospectuses that is corrected in the Prospectus, such indemnity agreement shall
not inure to the benefit of any Underwriter from whom the person asserting such
losses, liabilities, claims, damages or expenses purchased the Shares in the
Offering, if (i) such Underwriter failed to deliver a copy of the Prospectus to
such person at or prior to the time delivery of the Prospectus is required by
the Act, unless such failure was due to the failure by the Company to provide
copies of the Prospectus to such Underwriters; and (ii) the delivery of such
Prospectus to such person would have constituted a complete defense to the
losses, claims, damages, liabilities or expenses asserted by such person;
provided that the Company shall have complied with Section 5(e).
(a) The Selling Stockholders, severally but not jointly, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus which was provided in writing by any such Selling
Stockholder, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
29
incurred; provided, however, that the Selling Stockholders will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by an
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (c)
below and provided further that the liability under this subsection of each
Selling Stockholder shall be limited to an amount equal to the aggregate net
proceeds to such Selling Stockholder from the sale of Securities sold by such
Selling Stockholder hereunder.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the last paragraph at the
bottom of the cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments, stabilizing and passive
market making on the inside front cover page, the list of Underwriters appearing
under the caption "Underwriting," the concession and reallowance figures
appearing in the fourth paragraph under the caption "Underwriting" and the
information contained in the last three paragraphs under the caption
"Underwriting."
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the
30
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the
underwriting commissions
31
received by such Underwriters in connection with the Securities underwritten by
it 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 in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
32
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(d), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department - Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 000 Xxxxxxxx Xxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, Esq., or, if sent to
the Selling Stockholders or any of them, will be mailed, delivered or
telegraphed and confirmed to ____________________ at_________________________ ;
provided, however, that any notice to a party pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such party.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. ______________ will act for the
Selling Stockholders in connection with such transactions, and any action under
or in respect of this Agreement taken
33
by _______________________________will be binding upon all the Selling
Stockholders.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
If the foregoing is in accordance with the Representative[`s][s']
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
TRAVEL SERVICES INTERNATIONAL, INC.
BY
---------------------------------------
[INSERT TITLE]
XXXXXX X. XXXXXXX
D. XXXXXX XXXXXXX
J&W XXXXXX CORP.
800 IDEAS, INC.
GREYSTONES, INC.
XXXXXXX X. XxXXXXX
XXXXX XXXXX
XXXXXXX X. XXXXXX
XXXXXXX X. XXXXX
XXXXXX X. XXXXXX UST, XXXXXX X.
XXXXXX, XX.
XXXXXX X. XXXXXX UST, XXXXXX
XXXXXXX XXXXXX
THE B&LR INVESTSMENT COMPANY
34
THE XXXXX & XXXX XXXXXXXX
CHARITABLE TRUST
XXXXXXX X. XXXXX
XXXX XXXXXXX
XXXX X. XXXXXX, XX. REVOCABLE TRUST
RAELOCK VENTURES, LTD.
XXXXXX XXXXXX
XXXXXXX XXXXXXXXX
THE XXXXXXX XXXXXXXXX RETIREMENT
FUND
SAND FINANS A/S
XXXXXXX FAMILY LIMITED PARTNERSHIP
EDUCATIONAL TRUST FOR XXXX
XXXXXXXXX
EDUCATIONAL TRUST FOR XXXX
XXXXXXXXX
EDUCATIONAL TRUST FOR XXXXXXXX
BLULTINGER
XXXXXX XXXXXXX
XXXXXX XXXXXXX FAMILY TRUST
XXXXXX XXXXX
XXXXXX XXXXXXX
XXXXXXX X. COMFORT
XXXXXX XXXXXXXXXX
XXX X. XXXXXXX
XXXXXX XXXX
By:
--------------------------------------
Attorney-in-Fact
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
ING BARING XXXXXX XXXX LLC
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXX XXXXX & ASSOCIATES, INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
35
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-----------------------------------------
36
SCHEDULE A
NUMBER OF
FIRM SECURITIES
SELLING STOCKHOLDER TO BE SOLD
------------------- ---------------
Xxxxxx X. Xxxxxxx 25,000
D. Xxxxxx Xxxxxxx 20,000
J&W Xxxxxx Corp. 65,000
800 Ideas, Inc. 681,000
Greystones, Inc. 704,063
Xxxxxxx X. XxXxxxx 14,391
Xxxxx Xxxxx 9,035
Xxxxxxx X. Xxxxxx 35,000
Xxxxxxx X. Xxxxx 25,000
Xxxxxx X. Xxxxxx UST, Xxxxxx X.
Xxxxx, Xx. 4,000
Xxxxxx X. Xxxxxx UST, Xxxxxx
Xxxxxxx Xxxxxx 4,000
The B&LR Investment Company 44,110
The Xxxxx & Xxxx Xxxxxxxx Charitable
Trust 25,000
Xxxxxxx X. Xxxxx 3,500
Xxxx Xxxxxxx 4,464
Xxxx X. Xxxxxx, Xx. Revocable Trust 30,000
Raelock Ventures, Ltd. 8,929
Xxxxxx Xxxxxx 17,430
Xxxxxxx Xxxxxxxxx 17,001
The Xxxxxxx Xxxxxxxxx Retirement
Fund 27,555
Sand Finans A/S 8,929
Xxxxxxx Family Limited Partnership 27,035
Educational Trust for Xxxx
Xxxxxxxxx 4,290
Educational Trust for Xxxx
Xxxxxxxxx 4,290
Educational Trust for Xxxxxxxx
Xxxxxxxxx 4,290
Prudent Investments, L.L.C. 8,929
Xxxxxx Xxxxxxx 31,665
Xxxxxx Xxxxxxx Family Trust 15,618
Xxxxxx Xxxxx 20,000
Xxxxxx Xxxxxxx 55,000
Xxxxxxx X. Comfort 22,000
Xxxxxx Xxxxxxxxxx 8,929
Xxx X. Xxxxxxx 8,929
Xxxxxx Xxxx 15,618
---------
Total...................................... 2,000,000
=========
37
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITERS TO BE PURCHASED
------------ ---------------
Credit Suisse First Boston Corporation.....................
ING Baring Xxxxxx Xxxx LLC.................................
NationsBanc Xxxxxxxxxx Securities LLC......................
Xxxxxxx Xxxxx & Associates, Inc............................
---------
Total:..................................................... 3,500,000
=========
38
