THE MIDDLEBY CORPORATION
2,610,000 Shares
Common Stock
(Par Value $0.01 Per Share)
-----------------
UNDERWRITING AGREEMENT
New York, New York
October 29, 1997
XXXXXXXX & CO. INC.
XXXXX XXXXXX & CO., INC.
As Representatives of the several
Underwriters named in Schedule I hereto
c/x Xxxxxxxx & Co. Inc.
Equitable Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies & Gentlemen:
THE MIDDLEBY CORPORATION, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters"), an
aggregate of 2,000,000 shares of Common Stock, par value $0.01 per share (the
"Common Stock"), and the persons named in Schedule II hereto (the "Selling
Stockholders"), propose, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of 610,000 shares of Common Stock. The
2,610,000 shares of Common Stock to be sold by the Company and the Selling
Stockholders are herein referred to as the "Firm Securities." In addition, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional 391,500 shares of Common Stock (the "Option Securities"), on the
terms and for the purposes set forth in Section 2 hereof. The Firm Securities
and the Option Securities are herein collectively referred to as the
"Securities." Except as may be expressly set forth below, any reference to you
in this Agreement shall be solely in your capacity as the Representatives.
1A. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-2 (File No. 333-35397), and as
a part thereof a preliminary prospectus, in respect of the Securities, has
been filed with the Securities and Exchange Commission (the "Commission")
in the form heretofore delivered to you and, with the exception of exhibits
to the registration statement, also delivered to you for each of the other
Underwriters; if such registration statement has not become effective, an
amendment (the "Final Amendment") to such registration statement, including
a form of final prospectus, necessary to permit such registration statement
to become effective, will promptly be filed by the Company with the
Commission; if such registration statement has become effective and any
post-effective amendment to such registration statement has been filed with
the Commission prior to the execution and delivery of this Agreement, which
amendment or amendments shall be in form acceptable to you, the most recent
such amendment has been declared effective by the Commission; if such
registration statement has become effective, a final prospectus (the
"Rule 430A Prospectus") relating to the Securities containing information
permitted to be omitted at the time of effectiveness by Rule 430A of the
rules and regulations of the Commission under the Securities Act of 1933,
as amended (the "Act"), will promptly be filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Commission under the Act
(any preliminary prospectus filed as part of such registration statement
being herein called a "Preliminary Prospectus," and the final prospectus
relating to the Securities in the form first filed pursuant to
Rule 424(b)(1) or (4) of the rules and regulations of the Commission under
the Act or, if no such filing is required, the form of final prospectus
included in the registration statement, being herein called the
"Prospectus"); "Registration Statement" means such registration statement
as amended at the time that it becomes or became effective, or, if
applicable, as amended at the time the most recent post-effective amendment
to such registration statement filed with the Commission prior to the
execution and delivery of this Agreement became effective (the "Effective
Date"), including all exhibits thereto and all information deemed to be a
part thereof at such time pursuant to Rule 430A of the rules and
regulations of the Commission under the Act; any reference herein to any
Preliminary Prospectus or the Prospectus or the Registration Statement
shall be deemed to include any information incorporated by reference
therein, as of the date of such Preliminary Prospectus, the Prospectus or
the Registration Statement, as the case may be, and any reference to any
amendment or supplement to any Preliminary Prospectus, the Prospectus or
the Registration Statement shall be deemed to include any documents filed
after such date under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations of the Commission thereunder and so incorporated by
reference;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
you expressly for use therein;
(c) On the Effective Date and the date the Prospectus is filed with
the Commission, and when any further amendment or supplements thereto
become effective or are filed with the Commission, as the case may be, the
Registration Statement, the Prospectus and such amendment or supplements
did and will conform in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder, and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein;
(d) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and to
conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
where the nature of the property owned or leased by it, or the nature of
the business conducted by it, makes such qualification necessary (except
where the failure to so qualify would not have a material adverse effect on
the condition, financial or otherwise, or the business affairs or prospects
of the Company and its subsidiaries, taken as a whole); and each of the
Company's subsidiaries has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and to conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
where the nature of the property owned or leased by it, or the nature of
the business conducted by it, makes such qualification necessary (except
where the failure to so qualify would not have a material adverse effect on
the condition, financial or otherwise, or the business affairs or prospects
of the Company and its subsidiaries, taken as a whole);
(f) All the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and, except (i) for the shares of capital stock of
Xxxxxx Associates, Inc. ("Xxxxxx") and Middleby Philippines Corporation
("MPC") (each, a "Principal Subsidiary" and, collectively, the "Principal
Subsidiaries") which are pledged to a group of lenders pursuant to the
terms of (x) the $42,500,000 Loan and Security Agreement among, inter alia,
Middleby Marshall Inc. ("Middleby Marshall") and Sanwa Business Credit
Corporation, as agent and (y) the $15,000,000 Note Agreement among, inter
alia, Middleby Marshall, Xxxxxx and The Northwestern Mutual Life Insurance
Company (the "Pledged Stock"), (ii) for (x) the Xxxxxx Associates, Inc.
Stock Voting and Restriction Agreement dated April 2, 1990 among Xxxxx Xxxx
Xxxxxx, Xxxxxxxx Xxxxxxxx and Xxxxxx, as amended, and (y) the Stock
Restriction Agreement dated [blank], 1996 (the day and month of signing do
not appear on the agreement) among Xxxxx Xxxx Xxxxxx, Xxxxxxxxx Xxxxxx,
Xxxxxxxx Xxxxxxxx and MPC (collectively, the "Stock Restriction
Agreements") and (iii) as otherwise set forth in the Prospectus, are owned
by the Company free and clear of all liens, encumbrances, equities,
security interests or claims of any nature whatsoever; and, except (I) for
the right, if any, of Xxxxx Xxxx Xxxxxx to purchase additional shares of
the Principal Subsidiaries necessary to maintain his ownership of 20% of
the outstanding shares of each of them (the "Xxxxxx Option") and (II) as
otherwise set forth in the Prospectus, there are no outstanding options,
warrants or other rights calling for the issuance of, and there are no
commitments, plans or arrangements to issue, any shares of capital stock of
any subsidiary or any security convertible or exchangeable or exercisable
for capital stock of any subsidiary; except for the shares of stock of each
subsidiary owned by the Company and as otherwise set forth in the
Prospectus, neither the Company nor any subsidiary owns, directly or
indirectly, any shares of capital stock of any corporation (other than
Rational Cooking Systems, Inc., an Illinois corporation) or has any equity
interest in any firm, partnership, joint venture, association or other
entity;
(g) The Company has all requisite power and authority (corporate and
other) to execute, deliver and perform its obligations under this
Agreement; the execution, delivery and performance by the Company of its
obligations under this Agreement have been duly and validly authorized by
all requisite corporate action of the Company; and this Agreement
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms;
(h) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus, any loss of or material dispute with any of its ten largest
customers or its ten largest suppliers of products or services (measured by
dollar volume during the Company's most recent fiscal year) or any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute,
work stoppage or work slowdown or court or governmental action, order or
decree, which loss or interference is material to the Company and its
subsidiaries, taken as a whole; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been, and prior to the Time of Delivery (as defined in
Section 4 hereof) there will not be, any change in the capital stock, other
than shares issued pursuant to exercise of employee or director stock
options that the Prospectus indicates are outstanding (the "Option
Shares"), pursuant to exercise of warrants that the Prospectus indicates
are outstanding, or pursuant to the terms of convertible or exchangeable
securities of the Company or its subsidiaries outstanding on the date
hereof and described in the Prospectus or short-term debt or long-term debt
of the Company or any of its subsidiaries that is described in the
Prospectus, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(i) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property purported to be owned by them, in each case free and
clear of all liens, encumbrances and defects except those that are
described or contemplated by the Prospectus, or those that do not
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company and its
subsidiaries; any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such real property
and buildings by the Company and its subsidiaries; and the properties of
the Company and its subsidiaries, and their respective operations, are
insured to the extent insurance is customarily obtained by similar
businesses;
(j) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement, and all the
issued shares of capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, are free of any
preemptive rights, rights of first refusal or similar rights, were issued
and sold in compliance with all applicable federal and state securities
laws, are quoted on the Nasdaq National Market System and conform in all
material respects to the description thereof in the Prospectus; except as
described in the Prospectus, there are no outstanding options, warrants or
other rights calling for the issuance of, and there are no commitments,
plans or arrangements to issue, any shares of capital stock of the Company
or any security convertible or exchangeable or exercisable for capital
stock of the Company; except for Xxxxxxx X. Xxxxxxx, Xx., there are no
holders of securities of the Company who, by reason of the filing of the
Registration Statement have the right (and have not waived such right) to
request the Company to include in the Registration Statement securities
owned by them;
(k) The Securities to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable, and will conform in
all material respects to the description thereof in the Prospectus and will
be quoted on the Nasdaq National Market System as of the Effective Date;
(l) The performance of this Agreement, the consummation of the
transactions herein contemplated, the issue and sale of the Securities and
the compliance by the Company with all the provisions of this Agreement
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge, claim or encumbrance
upon, any of the property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
the By-laws (or similar corporate constituent documents), in each case as
amended to the date hereof, of the Company or any of its subsidiaries or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, registration or qualification of or with
any court or governmental agency or body is required for the issue and sale
of the Securities or the consummation of the other transactions
contemplated by this Agreement, except the registration under the Act of
the Securities, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(m) Except as set forth in the Prospectus, there is no legal or
governmental action, suit, proceeding or investigation pending to which the
Company or any of its subsidiaries or any of their respective officers or
directors is a party or of which the Company or any of its subsidiaries or
their respective properties is the subject, other than actions, suits,
proceedings or investigations incident to the business conducted by the
Company and its subsidiaries that will not individually or in the aggregate
have a material adverse effect on the current or future financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; to the Company's knowledge, no such
actions, suits, proceedings or investigations are threatened or
contemplated by governmental authorities or threatened or contemplated by
others; neither the Company nor any of its subsidiaries is involved in any
labor dispute, work stoppage, or work slowdown, nor, to the Company's
knowledge, is any labor dispute, work stoppage, or work slowdown
threatened; and neither the Company nor any of its subsidiaries is subject
to any outstanding order, ruling, judgment, award or decree that may have a
material adverse effect upon the Company and its subsidiaries, taken as a
whole;
(n) The Company and its subsidiaries have such licenses, permits and
other approvals or authorizations of and from governmental or regulatory
authorities ("Permits") as are necessary under applicable law to own their
respective properties and to conduct their respective businesses in the
manner now being conducted and as described in the Prospectus; and the
Company and its subsidiaries have fulfilled and performed all of their
respective obligations with respect to such Permits, and no event has
occurred that allows, or after notice or lapse of time or both would allow,
revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such permits;
(o) Xxxxxx Xxxxxxxx LLP have certified certain financial statements
of the Company and its consolidated subsidiaries, have delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectus, and
are independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(p) The consolidated financial statements and schedules of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the financial
condition, the results of operations and the cash flows of the Company and
its subsidiaries as of the dates and for the periods therein specified in
conformity with generally accepted accounting principles consistently
applied throughout the periods involved, except as otherwise stated
therein; and the other financial and statistical information and data set
forth in the Registration Statement and the Prospectus is accurately
presented and, to the extent such information and data is derived from the
financial statements and books and records of the Company and its
subsidiaries, is prepared on a basis consistent with such financial
statements and the books and records of the Company and its subsidiaries;
and no other financial statements or schedules are required to be included
in the Registration Statement and the Prospectus;
(q) There are no statutes or governmental regulations, or any
contracts or other documents that are required to be described in or filed
as exhibits to the Registration Statement that are not described therein or
filed or incorporated by reference as exhibits thereto; and all such
contracts to which the Company or any subsidiary is a party have been duly
authorized, executed and delivered by the Company or such subsidiary,
constitute valid and binding agreements of the Company or such subsidiary,
have been performed or are being performed in all material respects and are
enforceable against the Company or such subsidiary in accordance with the
terms thereof;
(r) The Company and its subsidiaries own or possess adequate patent
rights or licenses or other rights to use patent rights, inventions,
trademarks, service marks, trade names, copyrights, technology and know-how
necessary to conduct the general business now or proposed to be operated by
them as described in the Prospectus; neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any patent, patent rights,
inventions, trademarks, service marks, trade names, copyrights, technology
or know-how that, individually or in the aggregate, could materially
adversely affect the business, operations, financial condition, income or
business prospects of the Company and its subsidiaries, taken as a whole;
and, the discoveries, inventions, products or processes of the Company and
its subsidiaries referred to in the Prospectus do not, to the Company's
knowledge, infringe or conflict with any patent or other right of any third
party, or any discovery, invention, product or process that is the subject
of a patent application filed by any third party, known to the Company;
(s) Neither the Company nor any of its subsidiaries is currently in
violation of any term or provision of its Certificate of Incorporation or
By-Laws (or similar corporate constituent documents), in each case as
amended to the date hereof, or any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of its
subsidiaries, or of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries;
(t) No default exists, and no event has occurred that with notice or
lapse of time, or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, bank loan or credit agreement, lease or other
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which any of them or their respective properties is bound or
may be affected in any material adverse respect with regard to the
property, business or operations of the Company and its subsidiaries;
(u) The Company and its subsidiaries have timely filed all necessary
tax returns and notices and have paid all federal, state, county, local and
foreign taxes of any nature whatsoever for all tax years through December
28, 1996, to the extent such taxes have become due. The Company has no
knowledge, or any reasonable grounds to know, of any tax deficiencies that
would have a material adverse effect on the Company or any of its
subsidiaries; the Company and its subsidiaries have paid all taxes that
have become due, whether pursuant to any assessments or otherwise, and
there is no further liability (whether or not disclosed on such returns) or
assessments for
any such taxes, and no interest or penalties accrued or accruing with
respect thereto, except as may be set forth or adequately reserved for in
the financial statements included or incorporated by reference in the
Registration Statement; the amounts currently set up as provisions for
taxes or otherwise by the Company and its subsidiaries on their books and
records are sufficient for the payment of all their unpaid federal, state,
county, local and foreign taxes accrued through the dates as of which they
speak, and for which the Company and its subsidiaries may be liable in
their own right, or as a transferee of the assets of, or as successor to,
any other corporation, association, partnership, joint venture or other
entity;
(v) The Company and its subsidiaries maintain a system of internal
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 the preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(w) Neither the Company nor any of its subsidiaries is in violation
of, nor has any of them received any outstanding notice of a violation of,
any foreign, federal, state, county or local law or regulation relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants, antitrust or trade
regulation matters, any federal or state law relating to equal employment
or discrimination in the hiring, promotion or paying of employees or civil
rights generally, any applicable federal or state wages and hours laws, or
any provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations promulgated thereunder, where such
violation would have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(x) None of the Company or its subsidiaries, or any of their
respective officers, directors, employees or agents have used any corporate
funds for any unlawful contribution, payment, gift or entertainment or
other unlawful expense relating to political activity, or made any unlawful
payment of funds of the Company or any subsidiary or received or retained
any contribution, payment, gift or expenditure in violation of any law,
rule or regulation;
(y) None of the Company or its subsidiaries, or any of their
respective officers, directors, employees or agents have taken or will
take, directly or indirectly, any action designed to or that has
constituted or that might be reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities; and
(z) The conditions for use of Form S-2 as set forth in the General
Instructions thereto have been satisfied.
1B. Each Selling Stockholder, severally and not jointly,
represents and warrants to, and agrees with, each of the Underwriters that:
(a) Such Selling Stockholder has, and at the Time of Delivery (as
defined in Section 4 hereof) will have, good and valid title to the
Securities to be sold by such Selling Stockholder hereunder, free and clear
of any liens, encumbrances, equities, security interests, claims and other
restrictions of any nature whatsoever, and such Selling Stockholder has the
full legal, right, power and authority, and any approval required by law,
to enter into this Agreement and to sell, assign, transfer and deliver the
Securities being sold by such Selling Stockholder hereunder and to make the
representations, warranties, covenants and agreements made by it in this
Agreement; and upon the delivery of and payment for such Securities as
herein provided, the Underwriters will acquire good and valid title
thereto, free and clear of all liens, encumbrances, equities, security
interests, claims and other restrictions of any nature whatsoever;
(b) Such Selling Stockholder has duly executed and delivered an
agreement and power of attorney (with respect to such Selling Stockholder,
the "Power-of-Attorney", in the form heretofore delivered to the
Representatives, appointing Xxxx X. Xxxxxxxx and Xxxxx X. Xxxxx, and each
of them, as such Selling Stockholder's attorney-in-fact (the
"Attorney-in-Fact") with authority to execute, deliver and perform this
Agreement on behalf of the Selling Stockholder and appointing the Company,
as custodian thereunder (the "Custodian"). Certificates in negotiable
form, endorsed in blank or accompanied by blank stock powers duly executed,
with signatures appropriately guaranteed, representing the Securities to be
sold by such Selling Stockholder hereunder have been deposited with the
Custodian pursuant to the Power-of-Attorney for the purpose of delivery
pursuant to this Agreement. Such Selling Stockholder has all requisite
power and authority to execute, deliver and perform its obligations under
the Power-of-Attorney. The execution and delivery of the Power-of-Attorney
have been duly authorized by all necessary action of such Selling
Stockholder; the Power-of-Attorney has been duly executed and
delivered by such Selling Stockholder and, assuming due authorization,
execution and delivery by the Custodian, is the legal, valid, binding and
enforceable instrument of such Selling Stockholder. Such Selling
Stockholder agrees that each of the Securities represented by the
certificates on deposit with the Custodian is subject to the interests of
the Underwriters, the Company and the other Selling Stockholders hereunder,
that the arrangements made for such custody, the appointment of the
Attorney-in-Fact and the right, power and authority of the Attorney-in-Fact
to execute and deliver this Agreement and to carry out the terms of this
Agreement, are to that extent irrevocable and that the obligations of such
Selling Stockholder hereunder shall not be terminated, except as provided
in this Agreement or the Power-of-Attorney, by any act of such Selling
Stockholder, by operation of law or otherwise, whether by the death,
incapacity, dissolution or liquidation of such Selling Stockholder or by
the occurrence of any other event. If any Selling Stockholder should die,
become incapacitated or be dissolved or liquidated, or if any other event
should occur, before the delivery of the Securities hereunder, the
certificates for the Securities deposited with the Custodian shall be
delivered by the Custodian in accordance with the respective terms and
conditions of this Agreement as if such death, incapacity, dissolution or
liquidation or other event had not occurred, regardless of whether or not
the Custodian or the Attorney-in-Fact shall have received notice thereof.
Neither the execution, delivery or performance of the Power-of-Attorney,
the consummation of the transactions therein contemplated nor the
compliance with the terms thereof by such Selling Stockholder will conflict
with, or result in a breach or violation of any of the terms and provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge, claim or encumbrance on any property of the Company or
any of its subsidiaries under, any indenture, mortgage, deed of trust,
lease or other agreement or instrument to which such Selling Stockholder is
a party or by which such Selling Stockholder's property is bound, or any
statute, ruling, judgment, decree, order to regulation of any court or
other governmental authority or any arbitrator applicable to such Selling
Stockholder.
(c) Neither the execution and delivery or performance of this
Agreement or the Power of Attorney or the consummation of the transactions
herein or therein contemplated nor the compliance with the terms hereof or
thereof by such Selling Stockholder will conflict with, or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge,
claim or encumbrance on any property of the Company or any of its
subsidiaries under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder's
property is bound, or any statute, ruling, judgment, decree, order or
regulation of any court or other governmental authority or any arbitrator
applicable to such Selling Stockholder; and no consent, approval,
authorization, order, registration or qualification of or with any
governmental authority, except those as have been obtained, those as may be
required under state or foreign securities or Blue Sky laws or by the
by-laws and rules of the National Association of Securities Dealers, Inc.
and, if the Registration Statement filed with respect to the Securities is
not effective under the Act as of the time of execution hereof, those as
may be required (and shall be obtained as provided in this Agreement) under
the Act and the Exchange Act;
(d) Such Selling Stockholder will not, during the period of 120 days
after the date hereof, except pursuant to this Agreement, offer, sell,
contract to sell or otherwise dispose of any capital stock of the Company
(or securities convertible into, or exchangeable for, capital stock of the
Company), directly or indirectly, without the prior written consent of
Xxxxxxxx & Co. Inc.;
(e) Such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to cause or result in, or that
has constituted or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities or otherwise;
(f) The sale by such Selling Stockholder of Securities pursuant
hereto is not prompted by any adverse information concerning the Company or
its subsidiaries that is not set forth in the Registration Statement or the
Prospectus;
(g) Such Selling Stockholder is disposing of Securities for its own
account and is not selling such Securities, directly or indirectly, for the
benefit of the Company or the Underwriters. No part of the proceeds of
such sale to be received by such Selling Stockholder will inure, either
directly or indirectly, to the benefit of the Company;
(h) All information furnished to the Company or the Underwriters by
such Selling Stockholder for use in the preparation of the Registration
Statement and the Prospectus and other documents to be filed with the
National Association of Securities Dealers, Inc. or state securities or
Blue Sky authorities is true and correct and does not contain an untrue
statement of material fact nor does it omit to state any material fact
required to be stated therein or necessary to make such information, in the
light of the circumstances under which it was made, not misleading;
(i) Such Selling Stockholder has reviewed the Prospectus and the
Registration Statement, and the information regarding such Selling
Stockholder set forth therein under the caption "Principal and Selling
Stockholders" is complete and accurate;
(j) At the Time of Delivery, all stock transfer or other taxes (other
than income taxes) that are required to be paid in connection with the sale
and transfer of the Securities to be sold by such Selling Stockholder to
the Underwriters hereunder will have been fully paid or provided for by
such Selling Stockholder and all laws imposing such taxes will have been
fully complied with;
2. Subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the Underwriters an aggregate of 2,000,000
Firm Securities, each Selling Stockholder agrees to sell to the Underwriters the
number of Firm Securities set forth on Schedule II opposite the name of such
Selling Stockholder and each of the Underwriters agrees to purchase from the
Company and the Selling Stockholders, at a purchase price of $10.00 per share,
the respective aggregate number of Firm Securities determined in the manner set
forth below. The obligation of each Underwriter to the Company and each of the
Selling Stockholders, respectively, shall be to purchase that portion of the
number of shares of Common Stock to be sold by the Company or such Selling
Stockholder pursuant to this Agreement as the number of Firm Securities set
forth opposite the name of such Underwriter on Schedule I bears to the total
number of Firm Securities to be purchased by the Underwriters pursuant to this
Agreement, in each case adjusted by you in order that no Underwriter shall be
obligated to purchase Firm Securities other than in 100 share amounts. In
making this Agreement, each Underwriter is contracting severally and not
jointly.
In addition, subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to the Underwriters, as required
(for the sole purpose of covering over-allotments in the sale of the Firm
Securities), up to 391,500 Option Securities at the purchase price per share of
the Firm Securities being sold by the Company as stated in the preceding
paragraph. The right to purchase the Option Securities may be exercised by you
giving 48 hours prior written or telephonic notice (subsequently confirmed in
writing) to the Company of your determination to purchase all or a portion of
the Option Securities. Such notice may be given at any time within a period of
30 days following the date of this Agreement. Option Securities shall be
purchased severally for the account of each Underwriter in proportion to the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto. No Option Securities shall be delivered to or for the
accounts of the Underwriters unless the Firm Securities shall be simultaneously
delivered or shall theretofore have been delivered as herein provided. The
respective purchase obligations of each Underwriter shall be adjusted by you in
order that no Underwriter shall be obligated to purchase Option Securities other
than in 100 share
amounts. The Underwriters may cancel any purchase of Option Securities at any
time prior to the Option Securities Delivery Date (as defined in Section 4
hereof) by giving written notice of such cancellation to the Company.
3. The Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus.
4. Certificates in definitive form for the Firm Securities to be
purchased by each Underwriter hereunder shall be delivered by or on behalf of
the Company and the Selling Stockholders to you for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor at the election of the Company and the Selling
Stockholders by (i) wire transfer or (ii) certified or official bank check or
checks, payable in New York Clearing House funds, to the order of the Company,
for the purchase price of the Firm Securities being sold by the Company, and to
the order of each Selling Stockholder for the purchase price of the Firm
Securities being sold by such Selling Stockholder, at the office of X'Xxxxxx &
Xxxxxx, Suite 2900, 00 Xxxxx XxXxxxx Xxxxxx Xxxxxxx, Xxxxxxxx, 00000, at
10:00 A.M., New York City time, on November 4, 1997, or at such other time, date
and place as you and the Company may agree upon in writing, such time and date
being herein called the "Time of Delivery."
Certificates in definitive form for the Option Securities to be
purchased by each Underwriter hereunder shall be delivered by or on behalf of
the Company to you for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price thereof at the election of
the Company by (i) wire transfer or (ii) certified or official bank check or
checks, payable in New York Clearing House funds, to the order of the Company,
for the purchase price of the Option Securities, in New York, New York, at such
time and on such date (not earlier than the Time of Delivery nor later than ten
business days after giving of the notice delivered by you to the Company with
reference thereto) and in such denominations and registered in such names as
shall be specified in the notice delivered by you to the Company with respect to
the purchase of such Option Securities. The date and time of such delivery and
payment are herein sometimes referred to as the "Option Securities Delivery
Date." The obligations of the Underwriters shall be subject, in their
discretion, to the condition that there shall be delivered to the Underwriters
on the Option Securities Delivery Date opinions and certificates, dated such
Option Securities Delivery Date, referring to the Option Securities, instead of
the Firm Securities, but otherwise to the same effect as those required to be
delivered at the Time of Delivery pursuant to Section 7(d), 7(e), 7(f), 7(g) and
7(j).
Certificates for the Firm Securities and the Option Securities to
be delivered as aforesaid will be in good delivery form, and in such
denominations and registered in such names as you may request not less than 48
hours prior to the Time of Delivery and the Option Securities Delivery Date,
respectively. Such certificates will be made available for checking and
packaging in New York, New
York, at least 24 hours prior to the Time of Delivery and Option Securities
Delivery Date.
5. (a) The Company covenants and agrees with each of the
Underwriters:
(i) If the Registration Statement has not become effective, to file
promptly the Final Amendment with the Commission and use its best efforts
to cause the Registration Statement to become effective; if the
Registration Statement has become effective, to file promptly the Rule 430A
Prospectus with the Commission; to make no further amendment or any
supplement to the Registration Statement or Prospectus that shall be
disapproved by you after reasonable notice thereof; to advise you, promptly
after it receives notice thereof of the time when the Registration
Statement, or any amendment thereto, or any amended Registration Statement
has become effective or any supplement to the Prospectus or any amended
Prospectus has been filed, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and in the event of
the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain withdrawal of
such order;
(ii) Promptly from time to time, to take such action as you may
request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete 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;
(iii) To furnish each of the Representatives and counsel for the
Underwriters, without charge, conformed copies of the registration
statement originally filed with respect to the Securities and each
amendment thereto (in each case including all exhibits thereto) and to each
other Underwriter, without charge, a conformed copy of such registration
statement and each amendment thereto (in each case without exhibits
thereto) and, so long as a prospectus relating to the Securities is
required to be delivered under the Act, as many copies of
each Preliminary Prospectus, the Prospectus and all amendments or
supplements thereto as you may from time to time reasonably request. If at
any time when the delivery of a prospectus is required to be delivered
under the Act an event shall have occurred 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
in order to make statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Act, the Company will
forthwith prepare and, subject to the provisions of Section 5(a)(i) hereof,
file with the Commission an appropriate supplement or amendment thereto,
and will furnish to each Underwriter and to any dealer in securities,
without charge, as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus or make
an appropriate filing under Section 13, 14 or 15(d) of the Exchange Act
that will correct such statement or omission or effect such compliance in
accordance with the requirements of Section 10 of the Act;
(iv) To make generally available to its stockholders as soon as
practicable, but in any event not later than 90 days after the close of the
period covered thereby, an earnings statement in form complying with the
provisions of Section 11(a) of the Act (including, at the option of the
Company, Rule 158) covering a period of 12 consecutive months beginning not
later than the first day of the Company's fiscal quarter next following the
Effective Date;
(v) To file promptly all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act
subsequent to the Effective Date and during any period when the Prospectus
is required to be delivered;
(vi) For a period of five years from and after the Effective Date, to
furnish to its stockholders after the end of each fiscal year an annual
report (including a consolidated balance sheet and statements of income,
cash flow and stockholders' equity of the Company and its subsidiaries
certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the Effective Date),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(vii) During a period of five years from and after the Effective
Date, to furnish to you copies of all reports or other communications
(financial or other) furnished to its stockholders, and deliver to you
(i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request;
(viii) To apply the net proceeds from the sale of the Securities in
the manner set forth in the Prospectus under the caption "Use of Proceeds";
(ix) That it will not, and will cause its subsidiaries, officers,
directors, employees, agents and affiliates not to, take, directly or
indirectly, any action designed to cause or result in, or that might
reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of any of the Securities;
(x) That prior to the Time of Delivery there will not be any change
in the capital stock or material change in the short-term debt or long-term
debt of the Company or any of its subsidiaries, or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company or any of its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(xi) That it will not, during the period of 120 days after the date
hereof (other than pursuant to this Agreement), offer, sell, contract to
sell or otherwise dispose of any capital stock of the Company (or
securities convertible into, or exchangeable for, capital stock of the
Company), directly or indirectly, without the prior written consent of
Xxxxxxxx & Co. Inc., except for the issuance of Option Shares, grants of
stock options under the Company's Amended and Restated 1989 Stock Incentive
Plan, issuance of shares of common stock in connection with the
establishment of Middleby Japan Corporation, pursuant to exercise of
warrants that the Prospectus indicates are outstanding, or pursuant to the
terms of convertible or exchangeable securities of the Company or its
subsidiaries outstanding on the date hereof and described in the
Prospectus;
(xii) That it has caused the Securities to be included for quotation
on the Nasdaq National Market System as of the Effective Date; and
(xiii) To file with the Commission such reports on Form SR as may be
required pursuant to Rule 463 under the Act.
(b) Each Selling Stockholder, severally and not jointly,
covenants and agrees with each of the Underwriters that:
(i) Such Selling Stockholder will not, during the period of 120 days
after the date hereof, except pursuant to this Agreement, offer, sell,
contract to sell or otherwise dispose of any capital stock of the Company
(or securities convertible into, or exchangeable for, capital stock of the
Company), directly or indirectly, without the prior written consent of
Xxxxxxxx & Co. Inc.;
(ii) Such Selling Stockholder will not, directly or indirectly, take
any action designed to cause or result in, or that has constituted or that
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of any of the Securities;
(iii) As soon as any Selling Stockholder is advised thereof, such
Selling Stockholder will advise the Representatives and confirm such advice
in writing, (i) of receipt by such Selling Stockholder or by any
representative or agent of such Selling Stockholder, of any communication
from the Commission relating to the Registration Statement, the Prospectus
or any Preliminary Prospectus, or any notice or order of the Commission
relating to the Company or any of the Selling Stockholders in connection
with the transactions contemplated by this Agreement and (ii) of the
happening of any event that makes or may make any statement made in the
Registration Statement, the Prospectus or any Preliminary Prospectus untrue
or that requires the making of any change in the Registration Statement,
Prospectus or Preliminary Prospectus, as the case may be, in order to make
such statement, in light of the circumstances in which it was made, not
misleading; and
(iv) Such Selling Stockholder will deliver to the Representatives
prior to the Time of Delivery a properly completed and executed United
States Treasury Department Form W-9.
6. The Company covenants and agrees with the Underwriters that
the Company will pay or cause to be paid: (i) the fees, disbursements and
expenses of counsel and accountants for the Company and the Selling
Stockholders, and all other expenses, in connection with the preparation,
printing and filing of the Registration Statement and the Prospectus and
amendments and supplements thereto and the furnishing of copies thereof,
including charges for mailing, air freight and delivery and counting and
packaging thereof and of any Preliminary Prospectus and
related offering documents to the Underwriters and dealers; (ii) the cost of
printing this Agreement, the Master Agreement Among Underwriters, the Master
Selling Agreement, communications with the Underwriters and selling group and
the Blue Sky Memorandum and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under securities
laws as provided in Section 5(a) hereof, including filing and registration fees
and the fees, disbursements and expenses of counsel for the Underwriters in
connection with such qualification and in connection with Blue Sky surveys or
similar advice with respect to sales; (iv) the filing fees incident to, and the
fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Securities; (v) all fees and expenses in
connection with quotation of the Securities on the Nasdaq National Market
System; and (vi) all other costs and expenses incident to the performance of
their obligations hereunder that are not otherwise specifically provided for in
this Section 6, including the fees of the Company's Transfer Agent and
Registrar, the cost of any stock issue or transfer taxes on sale of the
Securities to the Underwriters, the cost of the Company's personnel and other
internal costs, the cost of printing and engraving the certificates representing
the Securities and all expenses and taxes incident to the sale and delivery of
the Securities to be sold by the Company and the Selling Stockholders to the
Underwriters hereunder.
Each Selling Stockholder will pay any transfer taxes incident to
the transfer to the Underwriters of the Securities being sold by such Selling
Stockholder.
It is understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, the Underwriters will pay all their
own costs and expenses, including the fees of their counsel, stock transfer
taxes on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company and the Selling Stockholders
herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholders shall have performed all its and
their obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Registration Statement shall have become effective, and
you shall have received notice thereof not later than 10:00 P.M., New York City
time, on the date of execution of this Agreement, or at such other time as you
and the Company may agree; if required, the Prospectus shall have been filed
with the Commission in the manner and within the time period required by
Rule 424(b); no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by
the Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction.
(b) All corporate proceedings and related legal and other
matters in connection with the organization of the Company and the registration,
authorization, issue, sale and delivery of the Securities shall have been
reasonably satisfactory to Xxxxxxxx Xxxx & Xxxxx LLP, counsel to the
Underwriters, and Xxxxxxxx Xxxx & Xxxxx LLP shall have been timely furnished
with such papers and information as they may reasonably have requested to enable
them to pass upon the matters referred to in this subsection.
(c) You shall not have advised the Company or any Selling
Stockholder that the Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact or omits to state a
fact that in your judgment is in either case material and in the case of an
omission is required to be stated therein or is necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) X'Xxxxxx & Xxxxxx, counsel to the Company, shall have
furnished to you its written opinion, dated the Time of Delivery, in form and
substance satisfactory to you and to Xxxxxxxx Xxxx & Xxxxx LLP, to the effect
that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and to
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction identified in
such opinion, which, to such counsel's knowledge, are the only
jurisdictions where the nature of the property owned or leased by it, or
the nature of the business conducted by it, makes such qualification
necessary (except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the business
affairs or prospects of the Company and its subsidiaries, taken as a
whole);
(ii) Each of Middleby Marshall and the Principal Subsidiaries has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with power
and authority (corporate and other) to own its properties and to conduct
its business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction identified in such
opinion, which, to such counsel's knowledge, are the only jurisdictions
where the nature of the property owned or leased by it, or the nature of
the business conducted by it, makes such qualification
necessary (except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the business
affairs or prospects of the Company and its subsidiaries, taken as a
whole);
(iii) All the issued and outstanding shares of capital stock of each
of Middleby Marshall and the Principal Subsidiaries have been duly and
validly authorized and issued, are fully paid and non-assessable and,
except as otherwise set forth in the Prospectus, are owned by the Company
of record and, to the knowledge of such counsel, (A) beneficially and
(B) except for the Pledged Stock and the Stock Restriction Agreements, free
and clear of all liens, encumbrances, equities, security interests or
claims of any nature whatsoever; and neither the Company, Middleby Marshall
nor either Principal Subsidiary has granted any outstanding options,
warrants or commitments with respect to any shares of its capital stock,
whether issued or unissued, except for the Xxxxxx Option and as otherwise
described in the Prospectus;
(iv) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement, and all the
issued and outstanding shares of capital stock of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable,
are free of any preemptive rights, and were issued and sold in compliance
with all applicable federal and state securities laws; except as described
in the Prospectus, to the knowledge of such counsel, there are no
outstanding options, warrants or other rights calling for the issuance of,
and there are no commitments, plans or arrangements to issue, any shares of
capital stock of the Company or any security convertible or exchangeable
for the capital stock of the Company; the Securities being sold by the
Company have been duly and validly authorized and, when duly countersigned
by the Company's Transfer Agent and Registrar and issued, delivered and
paid for in accordance with the provisions of the Registration Statement
and this Agreement, will be duly and validly issued, fully paid and
non-assessable; the Securities conform to the description thereof in the
Prospectus; the Securities to be sold by the Company have been duly
authorized for quotation on the Nasdaq National Market System, as of the
Effective Date, and the Securities to be sold by the Selling Stockholders
are quoted on the Nasdaq National Market System; and the certificates for
the Securities are in valid and legal form;
(v) To such counsel's knowledge, except as set forth in the
Prospectus, there are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries or any of their
respective officers or directors is a party or of which any property
of the Company or any of its subsidiaries is the subject that, if resolved
against the Company or any of its subsidiaries or any of their respective
officers or directors, individually or in the aggregate, is of a character
required to be disclosed in the Prospectus that has not been properly
disclosed therein;
(vi) This Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as enforceability of the
same may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and except as
enforceability of those provisions relating to indemnity may be limited by
the federal securities laws and principles of public policy;
(vii) The Company has full corporate power and authority to execute,
deliver and perform this Agreement, and the execution, delivery and
performance of this Agreement, the consummation of the transactions herein
contemplated, the issue and sale of the Securities and the compliance by
the Company with all the provisions of this Agreement will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge, claim or encumbrance upon, any of the property or assets of
the Company or either of Middleby Marshall or Xxxxxx (collectively, the
"U.S. Subsidiaries") pursuant to, the terms of any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument
known to such counsel to which the Company or either of the U.S.
Subsidiaries is a party or by which the Company or either of the U.S.
Subsidiaries is bound or to which any of the property or assets of the
Company or either of the U.S. Subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws (or similar corporate constituent documents),
in each case as amended to the date hereof, of the Company or either of the
U.S. Subsidiaries, or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or either of the U.S. Subsidiaries or any of
their respective properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or any regulatory authority or other
governmental body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by this Agreement,
except those as have been obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(ix) Neither the Company nor either of the U.S. Subsidiaries is
currently in violation of any term or provision of its Certificate of
Incorporation or By-Laws (or similar corporate constituent documents) and,
to such counsel's knowledge, (A) no other subsidiary of the Company is
currently in violation of any term or provision of any corporate
constituent document and (B) neither the Company nor any of its
subsidiaries is in default under any indenture, mortgage, deed of trust,
lease, bank loan or credit agreement or any other agreement or instrument
of which such counsel has knowledge to which the Company or any of its
subsidiaries is a party or by which any of them or any of their property
may be bound or affected (in any respect that is material in light of the
financial condition of the Company and its subsidiaries, taken as a whole);
(x) There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any
Securities pursuant to the Company's Certificate of Incorporation or
By-Laws, in each case as amended to the date hereof, or, to such counsel's
knowledge, any agreement or other instrument, except as described in the
Prospectus; and, except for Xxxxxxx X. Xxxxxxx, Xx., no holders of
securities of the Company have rights to the registration thereof under the
Registration Statement or, if any such holders have such rights, such
holders have waived such rights;
(xi) To the extent summarized therein, all contracts and agreements
summarized in the Registration Statement and the Prospectus are fairly
summarized therein, conform in all material respects to the descriptions
thereof contained therein, and, to the extent such contracts or agreements
or any other material agreements are required under the Act or the rules
and regulations thereunder to be filed or incorporated by reference
therein, as exhibits to the Registration Statement, they are so filed or
incorporated by reference; and such counsel does not know of any contracts
or other documents required to be summarized or disclosed in the Prospectus
or to be so filed or incorporated by reference as an exhibit to the
Registration statement, which have not been so summarized or disclosed, or
so filed or incorporated by reference;
(xii) All descriptions in the Prospectus of statutes, regulations or
legal or governmental proceedings are fair summaries thereof and fairly
present the information required to be shown with respect to such matters;
(xiii) Nothing has come to such counsel's attention to give such
counsel reason to believe that any of the representations and warranties of
the Company contained in this Agreement or in any certificate or document
contemplated under this Agreement to be delivered are not true or correct
or that any of the covenants and agreements herein contained to be
performed on the part of the Company or any of the conditions herein
contained, or set forth in the Registration Statement and the Prospectus,
to be fulfilled or complied with by the Company have not been or will not
be duly and timely performed, fulfilled or complied with;
(xiv) The Registration Statement has become effective under the Act,
the Prospectus has been filed in accordance with Rule 424(b) of the rules
and regulations of the Commission under the Act, including the applicable
time periods set forth therein, or such filing is not required and, to the
knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or threatened under the Act,
and the Registration Statement, the 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 thereunder; and the documents
incorporated by reference in the Prospectus comply as to form in all
material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder; it being understood with
respect to all of the foregoing that such counsel need express no opinion
as to the financial statements and schedules or other financial data
contained or incorporated by reference in the Registration Statement or the
Prospectus; and
(xv) The conditions for use of Form S-2 as set forth in the General
Instructions thereto have been satisfied.
Such counsel shall also state that nothing has come to such
counsel's attention that would lead such counsel to believe that either the
Registration Statement or any amendment or supplement thereto, at the time such
Registration Statement or amendment or supplement became effective and as of the
Time of Delivery, or the Prospectus or any amendment or supplement thereto, as
of its date and as of the Time of Delivery, contains or contained any untrue
statement of material fact or omitted or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering its opinion set forth in Section 7(d) above, such
counsel may rely, to the extent deemed advisable by such counsel, (a) as to
factual
matters, upon certificates of public officials and officers of the Company, and
(b) as to the laws of any jurisdiction other than the United States and
jurisdictions in which they are admitted, on opinions of counsel (PROVIDED,
HOWEVER, that you shall have received a copy of each of such opinions which
shall be dated the Time of Delivery, addressed to you or otherwise authorizing
you to rely thereon, and X'Xxxxxx & Xxxxxx in its opinion to you delivered
pursuant to this subsection, shall state that such counsel are satisfactory to
them and that X'Xxxxxx & Xxxxxx has no reason to believe that the Underwriters
and they are not justified to so rely);
(e) With respect to each of the Selling Stockholders, X'Xxxxxx &
Xxxxxx, counsel for the Selling Stockholders shall have furnished to you its
written opinion, dated the Time of Delivery, in form and substance satisfactory
to you and to Xxxxxxxx Xxxx & Xxxxx LLP to the effect that:
(i) each Selling Stockholder has full legal right, power and authority
to enter into this Agreement and the Power-of-Attorney and to sell,
transfer and deliver the Securities being sold by such Selling Stockholder
hereunder in the manner provided in this Agreement and to perform its
obligations under the Power-of-Attorney; the execution and delivery of this
Agreement and the Power-of-Attorney have been duly authorized by all
necessary action of each Selling Stockholder; this Agreement and the
Power-of-Attorney have been duly executed and delivered by each Selling
Stockholder; assuming due authorization, execution and delivery by the
Custodian, the Power-of-Attorney is the legal, valid and binding agreement
of each Selling Stockholder, enforceable in accordance with its terms,
except as enforcement of the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(ii) upon delivery of and payment for the Securities being sold by
each Selling Stockholder, the Underwriters will receive good and valid
title to such Securities, free and clear of all liens, encumbrances,
equities, security interests, claims or other defects;
(iii) the sale of the Securities to the Underwriters by the Selling
Stockholders pursuant to this Agreement, the compliance by the Selling
Stockholders with the other provisions of this Agreement and the
Power-of-Attorney and the consummation of the other transactions herein
contemplated do not (i) to the knowledge of such counsel, conflict with, or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge, claim or encumbrance on any property of any Selling
Stockholder under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which any Selling
Stockholder is a party or by which any Selling Stockholder or any of the
Selling Stockholders' property is bound or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to any Selling Stockholder, or
(ii) require the consent, approval, authorization, order, registration or
qualification of or with any governmental authority, except such as have
been obtained and such as may be required under state or foreign securities
or Blue Sky laws; and
(iv) there are no transfer or other taxes (other than income taxes)
known to such counsel payable in connection with the sale and delivery of
the Securities by the Selling Stockholders to the Underwriters or all such
taxes have been fully paid in connection with such sale and delivery.
Such counsel shall also state that nothing has come to such
counsel's attention that would lead such counsel to believe that either the
Registration Statement or any amendment or supplement thereto, at the time such
Registration Statement or amendment or supplement became effective and as of the
Time of Delivery, or the Prospectus or any amendment or supplement thereto, as
of its date and as of the Time of Delivery, contains or contained any untrue
statement of material fact or omitted or omits to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering its opinion set forth in Section 7(e) above, such
counsel may rely, to the extent deemed advisable by such counsel, as to factual
matters, upon certificates of public officials and the Selling Stockholders.
(f) Xxxxxxxx Xxxx & Xxxxx LLP, counsel to the Underwriters,
shall have furnished to you its written opinion or opinions, dated the Time of
Delivery, in form and substance satisfactory to you, with respect to the
incorporation of the Company, the validity of the Securities, the Registration
Statement, the Prospectus and other related matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters.
(g) With respect to the letter of Xxxxxx Xxxxxxxx LLP delivered
to you concurrently with the execution of this Agreement (the "initial letter"),
the Company shall have furnished to you a letter (as used in this paragraph, the
"bring-down letter") of Xxxxxx Xxxxxxxx LLP, addressed to you and dated the Time
of Delivery (i) confirming that they are independent public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable rules and regulations thereunder, (ii) stating, as of the date of
the bring-down letter (or, with respect to matters involving changes or
developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down letter),
the conclusions and findings of Xxxxxx Xxxxxxxx LLP with respect to the
financial information and other matters covered by the initial letter, and
(iii) confirming in all material respects the conclusions and findings set forth
in the initial letter.
(h) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss of or material dispute
with any of its ten largest customers or its ten largest suppliers of products
or services (measured by dollar volume during the Company's most recent fiscal
year) or any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute, work stoppage or work slowdown or court or governmental action, order
or decree; and since the respective dates as of which information is given in
the Prospectus, there shall not have been any change in the capital stock (other
than shares issued pursuant to the exercise of Option Shares, pursuant to the
exercise of warrants that the Prospectus indicates are outstanding, or pursuant
to the terms of convertible or exchangeable securities of the Company or its
subsidiaries outstanding on the date hereof and described in the Prospectus) or
short-term debt or long-term debt of the Company or any of its subsidiaries that
is described in the Prospectus nor any change or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case is in your judgment so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner contemplated in
the Prospectus.
(i) Between the date hereof and the Time of Delivery, there
shall have been no declaration of war by the Government of the United States; at
the Time of Delivery, there shall not have occurred any material adverse change
in the financial or securities markets in the United States or in political,
financial or economic conditions in the United States or any outbreak or
material escalation of hostilities or other calamity or crisis, the effect of
which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the resale of
Securities and no event shall have occurred resulting in (i) trading in
securities generally on the New York Stock Exchange or in the Common Stock on
the principal securities exchange or market in which the Common Stock is listed
or quoted being suspended or limited or minimum or maximum prices being
generally established on such exchange or market, or (ii) additional material
governmental restrictions, not in force on the date of this Agreement, being
imposed upon trading in securities generally by the New York Stock Exchange or
in the Common Stock on the principal securities exchange or market in which the
Common Stock is listed or quoted or by order of the Commission or any court or
other governmental authority, or (iii) a general banking moratorium being
declared by either federal or New York authorities.
(j) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to you at the Time of Delivery certificates
signed by the chief executive officer and the chief financial officer, on behalf
of the Company, and by each Selling Stockholder or the Attorney-in-Fact on
behalf of each Selling Stockholder, satisfactory to you as to such matters as
you may reasonably request and as to (i) the accuracy of its and their
respective representations and warranties herein at and as of the Time of
Delivery and (ii) the performance by the Company and each Selling Stockholder of
all their respective obligations hereunder to be performed at or prior to the
Time of Delivery; the Company shall have furnished or caused to be furnished to
you at the Time of Delivery certificates signed by the chief executive officer
and the chief financial officer, on behalf of the Company as to (i) the fact
that it has carefully examined the Registration Statement and Prospectus and,
(a) as of the Effective Date, the statements contained or incorporated by
reference in the Registration Statement and the Prospectus were true and correct
and neither the Registration Statement nor the Prospectus omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (b) since the Effective Date, no event has occurred that is
required by the Act or the rules and regulations of the Commission thereunder to
be set forth in an amendment of, or a supplement to, the Prospectus that has not
been set forth in such an amendment or supplement; and (ii) the matters set
forth in subsection (a) of this Section 7.
(k) Each director, executive officer, Selling Stockholder and
five percent stockholder of the Company shall have delivered to you an agreement
not to offer, sell, contract to sell or otherwise dispose of any shares of
capital stock of the Company (or securities convertible into, or exchangeable
for, capital stock of the Company), directly or indirectly, for a period of
120 days after the date of this Agreement, without the prior written consent of
Xxxxxxxx & Co. Inc.
(l) The Company shall have delivered to you evidence that the
Securities to be sold by the Company have been authorized for quotation on the
Nasdaq National Market System as of the Effective Date.
8. (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 (i) any untrue statement or
alleged untrue statement of a material fact contained or incorporated by
reference in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or in any Blue Sky
application or other document executed by the Company specifically for that
purpose or based upon information furnished by the Company filed in any state or
other jurisdiction in order to qualify any or all of the Securities under the
securities laws thereof or filed with the Commission or any securities
association or securities exchange (each, an "Application"), or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the
statements made or incorporated by reference therein, in the light of the
circumstances under which they were made, not misleading, or (ii) any untrue
statement or alleged untrue statement made by the Company in Section 1A of this
Agreement, or (iii) the employment by the Company of any device, scheme or
artifice to defraud, or the engaging by the Company in any act, practice or
course of business that operates or would operate as a fraud or deceit, or any
conspiracy with respect thereto, in which the Company shall participate, in
connection with the issuance and sale of any of the Securities, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating, preparing to defend,
defending or appearing as a third-party witness in connection with any such
action or claim; PROVIDED, HOWEVER, that the Company shall 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 or
omission or alleged omission relating to an Underwriter made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or such amendment or
supplement or any Application in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use therein.
(b) Each Selling Stockholder, severally and not jointly, will
indemnify and hold harmless (but only in the proportion that the number of
shares of Firm Securities sold by such Selling Stockholder bears to the total
number of Firm Securities sold, and PROVIDED, HOWEVER, that in no event shall
the liability of any Selling Stockholder under any subsection of this Section 8
exceed the proceeds received by such Selling Stockholder from the sale of the
Firm Securities sold by such Selling Stockholder) each Underwriter, the Company
and the other Selling Stockholders against any losses, claims, damages or
liabilities to which such Underwriter, 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 (i) any untrue statement or alleged untrue statement of a material fact
contained or incorporated by reference in the Preliminary Prospectus, the
Registration Statement, or the Prospectus, or any amendment or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements made or
incorporated by reference therein, in the light of the circumstances under which
they were made, 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 the Preliminary Prospectus, the Registration
Statement, the Prospectus or such amendment or supplement in reliance upon and
in conformity with information furnished to such Underwriter or the Company by
such Selling Stockholder expressly for use therein, or (ii) any untrue statement
or alleged untrue statement made by such Selling Stockholder in Section 1B of
this Agreement, and will reimburse such Underwriter, the Company or such Selling
Stockholder for any legal or other expenses reasonably incurred by such
Underwriter, the Company or such Selling Stockholder in connection with
investigating, preparing to defend, defending or appearing as a third-party
witness in connection with any such action or claim.
(c) In addition to any obligations of the Company and each of
the Selling Stockholders under Section 8(a) and 8(b), the Company and each of
the Selling Stockholders agree that they shall perform their indemnification
obligations under Section 8(a) and Section 8(b) (as modified by the last
paragraph of this Section 8(c)) with respect to counsel fees and expenses and
other expenses reasonably incurred by making payments within 45 days to the
Underwriter in the amount of the statements of the Underwriter's counsel or
other statements that shall be forwarded by the Underwriter, and that it shall
make such payments notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the obligation to reimburse the Underwriters
for such expenses and the possibility that such payments might later be held to
have been improper by a court until such time as a court orders the return of
such payments.
The indemnity agreement in Section 8(a) and Section 8(b) shall be
in addition to any liability that the Company or any of 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 or
the Exchange Act.
(d) Each Underwriter will indemnify and hold harmless the
Company and the Selling Stockholders 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 an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or any Application, 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, in
the light of the circumstances under which they were made, 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 any
Preliminary Prospectus, the Registration Statement, the Prospectus or such
amendment or supplement or any Application in reliance upon and in conformity
with written information furnished to the Company or such Selling Stockholder by
such Underwriter relating to such Underwriter through you expressly for use
therein, and will reimburse the Company or such Selling Stockholder for any
legal or other expenses reasonably incurred by the Company or such Selling
Stockholder in connection with investigating or defending any such action or
claim.
The indemnity agreement in this Section 8(d) shall be in addition
to any liability that the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company or of any Selling Stockholder and to each person, if any, who controls
the Company or any Selling Stockholder within the meaning of the Act or the
Exchange Act.
(e) Promptly after receipt by an indemnified party under
Section 8(a), 8(b) or 8(d) of notice of the commencement of any action
(including any governmental investigation), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability that it may have to any indemnified party under
Section 8(a), 8(b) or 8(d) except to the extent it was unaware of such action
and has been prejudiced in any material respect by such failure or from any
liability that it may have to any indemnified party otherwise than under such
Section 8(a), 8(b) or 8(d). In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation. If, however, (i) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party or (ii) an indemnified party shall have
reasonably concluded that representation of such indemnified party and the
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct due to actual or potential differing interests
between them and the indemnified party so notifies the indemnifying party, then
the indemnified party shall be entitled to employ counsel different than counsel
for the indemnifying party at the expense of the indemnifying party, and the
indemnifying party shall not have the right to assume the defense of such
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to local counsel) for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same set
of allegations or circumstances. The counsel with respect to which fees and
expenses shall be so reimbursed shall be designated in writing by Xxxxxxxx & Co.
Inc. in the case of parties indemnified pursuant to Section 8(a) and
Section 8(b) and by the Company in the case of parties indemnified pursuant to
Section 8(d).
If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by Section 8(c), the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party,
without the prior written consent of the indemnified party, shall effect any
settlement of any pending or threatened proceeding 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 claims that are the subject matter of such proceeding.
(f) In order to provide for just and equitable contribution
under the Act in any case in which (i) any Underwriter (or any person who
controls any Underwriter within the meaning of the Act or the Exchange Act)
makes claim for indemnification pursuant to Section 8(a) or Section 8(b) hereof,
but is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that Section 8(a) or Section 8(b)
provides for indemnification in such case or (ii) contribution under the Act may
be required on the part of any Underwriter or any such controlling person in
circumstances for which indemnification is provided under Section 8(d), then,
and in each such case, each indemnifying party shall contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject as an
indemnifying party hereunder (after contribution from others) 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. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 8(e) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits 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 that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), 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 of the Securities purchased under this Agreement received by
the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Securities purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. 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 or the Selling
Stockholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8(f) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to above in this Section 8(f). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above
in this Section 8(f) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8(f), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that 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 a 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 Section 8(f) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(g) Promptly after receipt by any party to this Agreement of
notice of the commencement of any action, suit or proceeding, such party will,
if a claim for contribution in respect thereof is to be made against another
party (the "contributing party"), notify the contributing party of the
commencement thereof; but the omission so to notify the contributing party will
not relieve it from any liability that it may have to any other party for
contribution under the Act except to the extent it was unaware of such action
and has been prejudiced in any material respect by such failure or from any
liability that it may have to any other party other than for contribution under
the Act. In case any such action, suit or proceeding is brought against any
party, and such party notifies a contributing party of the commencement thereof,
the contributing party will be entitled to participate therein with the
notifying party and any other contributing party similarly notified.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Securities that it has agreed to purchase hereunder, you may
in your discretion arrange for you or another party or other parties to purchase
such Firm Securities on the terms contained herein. If the aggregate number of
Firm Securities as to which Underwriters default is more than one-eleventh of
the aggregate number of all the Firm Securities and within 36 hours after such
default by any Underwriter you do not arrange for the purchase of such Firm
Securities, then the Company and the Selling Stockholders shall be entitled to a
further period of 36 hours within which to procure another party or other
parties satisfactory to you to purchase such Firm Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company
and the Selling Stockholders that you have so arranged for the purchase of such
Firm Securities, or the Company and the Selling Stockholders notify you that
they have so arranged for the purchase of such Firm Securities, you or the
Company shall have the right to postpone the Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus that in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such Firm
Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Firm Securities of such defaulting Underwriter or Underwriters by you or
the Company and the Selling Stockholders or both as provided in subsection (a)
above, the aggregate number of such Firm Securities that remain unpurchased does
not exceed one-eleventh of the aggregate number of all the Firm Securities, then
the Company and the Selling Stockholders shall have the right to require each
non-defaulting Underwriter to purchase the number of the Firm Securities that
such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Firm Securities that such Underwriter agreed to purchase hereunder) of the
Firm Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Firm Securities of a defaulting Underwriter or Underwriters by you or the
Company and the Selling Stockholders as provided in subsection (a) above, the
aggregate number of such Firm Securities which remain unpurchased exceeds
one-eleventh of the aggregate number of all the Firm Securities, or if the
Company and the Selling Stockholders shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Firm
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate without liability on the part of any non-defaulting
Underwriter, the Company or any Selling Stockholder, except for the expenses to
be borne by the Company and the Selling Stockholders and the Underwriters as
provided in Section 6 hereof and the indemnity agreement in Section 8 hereof;
but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, each of the Selling Stockholders
and the Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or an officer or director or controlling person
of the Company, or any of the Selling Stockholders, or any controlling person of
any of the Selling Stockholders, and shall survive delivery of and payment for
the Securities.
11. This Agreement shall become effective (a) if the
Registration Statement has not heretofore become effective, at the earlier of
12:00 Noon, New York City time, on the first full business day after the
Registration Statement becomes effective, or at such time after the Registration
Statement becomes effective as you may authorize the sale of the Securities to
the public by Underwriters or other securities dealers, or (b) if the
Registration Statement has heretofore become
effective, at the earlier of 24 hours after the filing of the Prospectus with
the Commission or at such time as you may authorize the sale of the Securities
to the public by Underwriters or securities dealers, unless, prior to any such
time you shall have received notice from the Company that it elects that this
Agreement shall not become effective, or you, or through you such of the
Underwriters as have agreed to purchase in the aggregate fifty percent or more
of the Firm Securities hereunder, shall have given notice to the Company that
you or such Underwriters elect that this Agreement shall not become effective;
PROVIDED, HOWEVER, that the provisions of this Section and Section 6 and
Section 8 hereof shall at all times be effective.
If this Agreement shall be terminated pursuant to Section 9
hereof, or if this Agreement, by election of you or the Underwriters, shall not
become effective pursuant to the provisions of this Section, the Company and the
Selling Stockholders shall not then be under any liability to any Underwriter
except as provided in Section 6 and Section 8 hereof, but if this Agreement
becomes effective and is not so terminated but the Securities are not delivered
by or on behalf of the Company or any of the Selling Stockholders as provided
herein because the Company or any of the Selling Stockholders has been unable
for any reason beyond its control and not due to any default by it to comply
with the terms and conditions hereof, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities, but the Company and the Selling Stockholders shall then be under no
further liability to any Underwriter except as provided in Section 6 and
Section 8 hereof.
12. The statements set forth in the last paragraph on the front
cover page of the Preliminary Prospectus or Prospectus, the paragraph on the
inside front cover of the Preliminary Prospectus or Prospectus containing
language relating to stabilization and the statements under the caption
"Underwriting" in the Preliminary Prospectus or Prospectus (to the extent such
statements relate to the Underwriters) constitute the only information furnished
by any Underwriter through the Representatives to the Company for purposes of
Sections 1A(b), 1A(c) and 8 hereof.
13. In all dealings hereunder, you shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by you jointly or by Xxxxxxxx & Co. Inc. on behalf of you as the
Representatives, and in all dealings with the Selling Stockholders hereunder,
you and the Company shall be entitled to act and rely upon any statement,
request, notice or agreement furnished in writing by or on behalf of such
Selling Stockholder or made or given by the Attorney-in-Fact for such Selling
Stockholder.
All statements, requests, notices and agreements hereunder,
unless otherwise specified in this Agreement, shall be in writing and, if to the
Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission (subsequently confirmed by delivery or by letter sent by mail) to
you as the Representatives in care of Xxxxxxxx & Co. Inc., Equitable Center, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department; and
if to the Company or the Selling Stockholders, shall be delivered or sent by
letter sent by mail, telex or facsimile transmission (subsequently confirmed by
delivery or by letter sent by mail) to the address of the Company set forth in
the Registration Statement, Attention: Xxxx X. Xxxxxxxx, Executive Vice
President; PROVIDED, HOWEVER, that any notice to any Underwriter pursuant to
Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission (subsequently confirmed by delivery or by letter sent by mail) to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
14. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and each of the Selling
Stockholders and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of the Company and each person who controls the Company,
any Selling Stockholder or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
16. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF.
17. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument. If the foregoing is in accordance with your understanding,
please sign and return to us two counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and each of the Selling Stockholders. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in the Master Agreement
Among Underwriters, manually or facsimile executed counterparts of which, to the
extent practicable and upon request, shall be submitted to the Company for
examination, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
THE MIDDLEBY CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
SELLING STOCKHOLDERS
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
As Attorney-in-Fact for each of
the Selling Stockholders listed in
Schedule II
Accepted as of the date hereof:
XXXXXXXX & CO. INC.
XXXXX XXXXXX & CO., INC.
as Representatives of the several Underwriters
By: XXXXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Managing Director
SCHEDULE I
Underwriter Number of Firm Securities
----------- -------------------------
Xxxxxxxx & Co. Inc. 945,000
Xxxxx Xxxxxx & Co., Inc. 945,000
Credit Suisse First Boston Corporation 60,000
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation 60,000
Xxxxxxx, Sachs & Co. 60,000
Xxxxxx Brothers Inc. 60,000
Xxxxxxxxxxx & Co., Inc. 60,000
Invemed Associates, Inc. 60,000
Xxxxxxx and X. Xxxxxxxxxxxx, Inc. 30,000
Xxxxxx X. Xxxxx & Co. Incorporated 30,000
Xxxxxxx Xxxxx & Company, L.L.C. 30,000
Xxxxx (H.D.) & Co. Inc. 30,000
Cleary, Gull, Xxxxxxx & XxXxxxxx Inc. 30,000
Xxxx Xxxxxxxx Incorporated 30,000
Xxxxxx Xxxx LLC 30,000
Xxxxxx & Xxxxxx, Inc. 30,000
X.X. Xxxx & Associates, Inc. 30,000
XxXxxxxx & Company Securities, Inc. 30,000
Xxxxxxxxx & Xxxxxx LLC 30,000
Xxxxx & Xxxxxxxxxxxx, Inc. 30,000
------
Total 2,610,000
---------
---------
SCHEDULE II
Number of Firm
Selling Stockholder Securities to be Sold
------------------- ---------------------
Xxxxxxx X. Xxxxxxx, Xx. 300,000
Xxxxx X. Xxxxx 180,000
Xxxxx X. Xxxxxxx 100,000
The Xxxxx X. Xxxxx Irrevocable Trust 30,000
Total -------
610,000
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