Exhibit 1.1
3,300,000 SHARES
EMS TECHNOLOGIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
St. Petersburg, Florida
February 9, 2006
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxx & Company, LLC
X.X. Xxxxxxx & Sons, Inc.
As Representatives of the Several Underwriters
listed on Schedule I hereto
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
EMS Technologies, Inc., a Georgia corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
several Underwriters named in Schedule I hereto (the "Underwriters"), an
aggregate of 3,300,000 shares of its Common Stock, par value $0.10 per share
(the "Common Stock"). The aggregate of 3,300,000 shares to be purchased from the
Company are called the "Firm Shares." In addition, the Company has agreed to
sell to the Underwriters, upon the terms and conditions stated herein, up to an
additional 495,000 shares of Common Stock (the "Additional Shares") to cover
over-allotments by the Underwriters, if any. The Firm Shares and the Additional
Shares are collectively referred to in this Agreement as the "Shares." Xxxxxxx
Xxxxx & Associates, Inc., Xxxxxxx & Company, LLC and X.X. Xxxxxxx & Sons, Inc.
are acting as the representatives of the several Underwriters and in such
capacity are referred to in this Agreement as the "Representatives."
The Company wishes to confirm as follows its agreement with you and the
other several Underwriters, on whose behalf you are acting, in connection with
the several purchases of the Shares from the Company.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 (File No. 333-131042),
including a prospectus subject to completion, relating to the Shares. Such
registration statement, as amended, including the financial statements, exhibits
and schedules thereto, at the time when it becomes effective and as thereafter
amended by any post-effective amendment, is referred to in this Agreement as the
"Registration Statement." The prospectus in the form included in the
Registration Statement or, if the prospectus included in the Registration
Statement omits certain information in reliance upon Rule 430A under the Act and
such information is thereafter included in a prospectus filed with the
Commission pursuant to Rule 424(b) under the Act or as part of a post-effective
amendment to the Registration Statement after the Registration Statement becomes
effective, the prospectus as so filed, is referred to in this Agreement as the
"Prospectus." If the Company files another registration statement with the
Commission to register a portion of the Shares pursuant to Rule 462(b) under the
Act (the "Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to include the registration statement on Form
S-3 (File No. 333-131042) and the Rule 462 Registration Statement, as each such
registration statement may be amended pursuant to the Act. The prospectus
subject to completion in the form included in the Registration Statement at the
time of the initial filing of such Registration Statement with the Commission
and as such prospectus is amended or supplemented from time to time until the
date of the Prospectus is referred to in this Agreement as the "Preliminary
Prospectus." For purposes of this Agreement, "free writing prospectus" has the
meaning ascribed to it in Rule 405 under the Act, and "Issuer Free Writing
Prospectus" shall mean each free writing prospectus prepared by or on behalf of
the Company or used or referred to by the Company in connection with the
offering of the Common Stock. "Time of Sale Information" shall mean, as of 11:59
p.m. Eastern time on the date hereof (the "Applicable Time"), the Preliminary
Prospectus, together with each Issuer Free Writing Prospectuses filed or used by
the Company on or before the Applicable Time, including those identified in
Schedule II hereto, and the pricing terms of the offering of the Shares
specified in a final term sheet. All references in this Agreement to the
Registration Statement, the Rule 462 Registration Statement, a Preliminary
Prospectus, the Prospectus or the Time of Sale Information, or any amendments or
supplements to any of the foregoing, shall be deemed to refer to and include any
documents incorporated by reference therein (the "Incorporated Documents"), and
shall include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
2. Agreements to Sell and Purchase. The Company hereby agrees to issue and
sell the Firm Shares to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company at a purchase
price of $15.70 per Share (the "purchase price per Share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto.
-2-
The Company hereby also agrees to sell to the Underwriters, and, upon the
basis of the representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right for 30 days from the date of the Prospectus to
purchase from the Company up to 495,000 Additional Shares at the purchase price
per Share for the Firm Shares. The Additional Shares may be purchased solely for
the purpose of covering over-allotments, if any, made in connection with the
offering of the Firm Shares. If any Additional Shares are to be purchased, each
Underwriter, severally and not jointly, agrees to purchase the number of
Additional Shares (subject to such adjustments as you may determine to avoid
fractional shares) that bears the same proportion to the total number of
Additional Shares to be purchased by the Underwriters as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto
bears to the total number of Shares. The option to purchase Additional Shares
may be exercised at any time within 30 days after the date of the Prospectus.
3. Terms of Public Offering. The Company has been advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
Not later than 12:00 p.m. on the second business day following the date the
Shares are released by the Underwriters for sale to the public, the Company
shall deliver or cause to be delivered copies of the Prospectus in such
quantities and at such places as the Representatives shall request.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of the Firm Shares and payment therefor shall be made at the
offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx at 10:00 a.m., St. Petersburg, Florida time, on February 15,
2006, or such other place, time and date as the Representatives shall designate
by notice to the Company (the time and date of such closing are called the
"Closing Date"). The place of closing for the Firm Shares and the Closing Date
may be varied by agreement between you and the Company. The Company hereby
acknowledges that circumstances under which the Representatives may provide
notice to postpone the Closing Date as originally scheduled include any
determination by the Company or the Representatives to recirculate to the public
copies of an amended or supplemented Prospectus or a delay as contemplated by
the provisions of Section 11 hereof.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at the offices of Xxxxxxx Xxxxx &
Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, at 10:00 a.m.,
St. Petersburg, Florida time, on such date or dates (the "Additional Closing
Date") (which may be the same as the Closing Date, but shall in no event be
earlier than the Closing Date nor earlier than three nor later than ten business
days after the giving of the notice hereinafter referred to) as shall be
specified in a written notice, from the Representatives on behalf of the
Underwriters to the Company, of the Underwriters' determination to purchase a
number, specified in such notice, of Additional Shares. Such notice
-3-
may be given at any time within 30 days after the date of the Prospectus and
must set forth (i) the aggregate number of Additional Shares as to which the
Underwriters are exercising the option and (ii) the names and denominations in
which the certificates for which the Additional Shares are to be registered. The
place of closing for the Additional Shares and the Additional Closing Date may
be varied by agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 1:00 p.m., St. Petersburg, Florida time, not later
than the second full business day preceding the Closing Date or the Additional
Closing Date, as the case may be. Such certificates shall be made available to
you in St. Petersburg, Florida for inspection and packaging not later than 9:30
a.m., St. Petersburg, Florida time, on the business day immediately preceding
the Closing Date or the Additional Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Additional Closing Date, as the case may be, against payment of the purchase
price therefore by wire transfer of immediately available funds to an account
specified in writing, not later than the close of business on the business day
next preceding the Closing Date or the Additional Closing Date, as the case may
be, by the Company. Payment for the Shares sold by the Company hereunder shall
be delivered by the Representatives to the Company.
It is understood that the Representatives have been authorized, for their
own account and the accounts of the several Underwriters, to accept delivery of
and receipt for, and to make payment of the purchase price per Share for the
Firm Shares and the Additional Shares, if any, that the Underwriters have agreed
to purchase. Xxxxxxx Xxxxx and Associates, Inc., individually and not as a
Representative of the Underwriters, may, but shall not be obligated to, make
payment for any Shares to be purchased by any Underwriter whose funds shall not
have been received by the Representatives by the Closing Date or the Additional
Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
5. Covenants and Agreements.
The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective, if it has not already
become effective, and will advise you promptly and, if requested by you, will
confirm such advice in writing (i) when the Registration Statement has become
effective and the time and date of any filing of any post-effective Registration
Statement or any amendment or supplement to any Preliminary Prospectus or the
Prospectus and the time and date that any post-effective amendment to the
Registration Statement becomes effective, (ii) if Rule 430A under the Act is
employed, when the Prospectus has been timely filed pursuant to Rule 424(b)
under the Act, (iii) of the receipt of any comments of the Commission, or any
request by the Commission for amendments or supplements to the Registration
Statement, any Preliminary Prospectus or the Prospectus or for additional
-4-
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purposes and (v) within the period of time
referred to in Section 5(h) below, of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or results of
operations, or other event that comes to the attention of the Company and, which
change or other event, in the judgment of the Company, makes any statement made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue in any material respect or that requires the making of any
additions thereto or changes therein in order to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which they were
made) not misleading in any material respect, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal or lifting of such order
at the earliest possible time. The Company will provide the Underwriters with
copies of the form of Prospectus, in such number as the Underwriters may
reasonably request, and file with the Commission such Prospectus in accordance
with Rule 424(b) of the Act before the close of business on the first business
day immediately following the date hereof.
(b) The Company will furnish to you, without charge, three signed
duplicate originals of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits thereto, and will also furnish to you, without charge, such number of
conformed copies of the Registration Statement as originally filed and of each
amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission any amendment
or supplement to the Registration Statement or the Prospectus that may, in the
judgment of the Company or the Representatives, be required by the Act or
requested by the Commission.
(d) The Company will furnish a copy of any amendment or supplement to
the Registration Statement or to the Prospectus or any Issuer Free Writing
Prospectus to you and counsel for Underwriters and will not file any such
amendment or supplement or any such Issuer Free Writing Prospectus to which the
Representatives reasonably object.
(e) The Company will not make any offer relating to the Common Stock
that would constitute an Issuer Free Writing Prospectus without your prior
consent.
(f) The Company will retain in accordance with the Act all Issuer Free
Writing Prospectuses not required to be filed pursuant to the Act; and if at any
time after the date hereof any events shall have occurred as a result of which
any Issuer Free Writing Prospectus, as then amended or supplemented, would
conflict with the information in the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus or would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading,
-5-
or, if for any other reason it shall be necessary to amend or supplement any
Issuer Free Writing Prospectus, to notify you and, upon your request, to file
such document and to prepare and furnish without charge to each Underwriter as
many copies as they may from time to time reasonably request of an amended or
supplemented Issuer Free Writing Prospectus that will correct such conflict,
statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this Agreement, the Company
has delivered or will deliver to you, without charge, in such quantities as you
have requested or may hereafter reasonably request, copies of each form of the
Preliminary Prospectus. Consistent with the provisions of Section 5(h) hereof,
the Company consents to the use, in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers, prior to the date
of the Prospectus, of each Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this Agreement as is
practicable and thereafter from time to time for such period as in the
reasonable opinion of counsel for the Underwriters a prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or a dealer
(the "Prospectus Delivery Period"), and for so long a period as you may request
for the distribution of the Shares, the Company will deliver to each Underwriter
and each dealer, without charge, as many copies of the Prospectus and the Time
of Sale Information (and of any amendment or supplement thereto) as they may
reasonably request. The Company consents to the use of the Prospectus and the
Time of Sale Information (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold, both in connection
with the offering and sale of the Shares and for such period of time thereafter
as the Prospectus is required by the Act to be delivered in connection with
sales by any Underwriter or dealer. If at any time prior to the later of (i) the
completion of the distribution of the Shares pursuant to the offering
contemplated by the Registration Statement or (ii) the expiration of prospectus
delivery requirements with respect to the Shares under Section 4(3) of the Act
and Rule 174 thereunder, any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with the Act or any other law,
the Company will forthwith prepare and, subject to Section 5(a) hereof, file
with the Commission and use its best efforts to cause to become effective as
promptly as possible an appropriate supplement or amendment thereto, and will
furnish to each Underwriter who has previously requested Prospectuses, without
charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for the
Underwriters in connection with the registration or qualification of the Shares
for offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as you may reasonably
designate and will file such consents to service of process or other documents
as
-6-
may be reasonably necessary in order to effect and maintain such registration or
qualification for so long as required to complete the distribution of the
Shares; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to general service of process in suits, other than
those arising out of the offering or sale of the Shares, as contemplated by this
Agreement and the Prospectus, in any jurisdiction where it is not now so
subject. In the event that the qualification of the Shares in any jurisdiction
is suspended, the Company shall so advise you promptly in writing.
(j) The Company will make generally available to its security holders
a consolidated earnings statement (in form complying with the provisions of Rule
158), which need not be audited, covering a twelve-month period commencing after
the effective date of the Registration Statement and the Rule 462 Registration
Statement, if any, and ending not later than 15 months thereafter, as soon as
practicable after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section 11(a) of the Act.
(k) During the Prospectus Delivery Period, the Company will file all
documents required to be filed with the Commission pursuant to Sections 13, 14
and 15 of the Exchange Act in the manner and within the time periods required by
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the "Exchange Act").
(l) During the period ending three years from the date hereof, the
Company will furnish to you and, upon your request, to each of the other
Underwriters, as promptly as practicable after they have been filed or mailed,
as the case may be, a copy of each proxy statement, quarterly or annual report
or other report of the Company mailed to shareholders or filed with the
Commission, the National Association of Securities Dealers, Inc. (the "NASD") or
the Nasdaq Stock Market ("NASDAQ") or any national securities exchange, in each
such case unless they are otherwise available on the Commission's XXXXX system.
(m) If this Agreement shall terminate or shall be terminated pursuant
to clause (i) of Section 12 hereof or if this Agreement shall be terminated by
the Underwriters because of any inability, failure or refusal on the part of the
Company to perform in all material respects any agreement herein or to comply in
all material respects with any of the terms or provisions hereof or to fulfill
in all material respects any of the conditions of this Agreement, the Company
agrees to reimburse you and the other Underwriters for all out-of-pocket
expenses (including travel expenses and reasonable fees and expenses of counsel
for the Underwriters, but excluding wages and salaries paid by you) reasonably
incurred by you in connection herewith.
(n) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder in accordance in all material respects with
the statements under the caption "Use of Proceeds" in the Prospectus.
(o) For a period commencing on the date hereof and ending on the 90th
day after the date of the Prospectus (the "Lock-Up Period"), the Company shall
not, directly or
-7-
indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter
into any transaction or device that is designed to, or could reasonably be
expected to, result in the disposition by any person at any time in the future
of) any shares of Common Stock or securities convertible into or exchangeable
for Common Stock (other than pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights), or sell or grant
options, rights or warrants with respect to any shares of Common Stock or
securities convertible into or exchangeable for Common Stock (other than the
grant of options pursuant to option plans existing on the date hereof), (2)
enter into any swap or other derivatives transaction that transfers to another,
in whole or in part, any of the economic benefits or risks of ownership of such
shares of Common Stock, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Stock or other securities, in
cash or otherwise, (3) file or cause to be filed a registration statement,
including any amendments, with respect to the registration of any shares of
Common Stock or securities convertible, exercisable or exchangeable into Common
Stock or any other securities of the Company or (4) publicly disclose the
intention to do any of the foregoing, in each case without the prior written
consent of the Representatives on behalf of the Underwriters, and shall cause
each executive officer and director of the Company set forth on Schedule III
hereto to furnish to the Representatives, prior to the Closing Date, a letter or
letters, substantially in the form of Exhibit A hereto (the "Lock-Up
Agreements"); notwithstanding the foregoing, if (1) during the last 17 days of
the Lock-Up Period, the Company issues an earnings release or announces material
news or a material event relating to the Company occurs or (2) prior to the
expiration of the Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
Lock-Up Period, then the restrictions imposed in the preceding paragraph shall
continue to apply until the expiration of the 18-day period beginning on the
date of issuance of the earnings release or the announcement of the material
news or the occurrence of the material event, unless the Representatives, on
behalf of the Underwriters, waive such extension in writing.
(p) Prior to the Closing Date or the Additional Closing Date, as the
case may be, the Company will furnish to you, as promptly as possible, copies of
any unaudited interim consolidated financial statements of the Company and its
subsidiaries for any period subsequent to the periods covered by the financial
statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any undertakings
contained in the Registration Statement.
(r) The Company will not at any time, directly or indirectly, take any
action designed, or which might reasonably be expected to cause or result in, or
which will constitute, stabilization or manipulation of the price of the shares
of Common Stock to facilitate the sale or resale of any of the Shares.
(s) Until the completion of the offering, the Company will timely file
with NASDAQ all documents and notices required by the NASDAQ of companies that
have or will issue securities that are traded on the NASDAQ.
-8-
(t) The Company shall engage and maintain, at its expense, a transfer
agent and, if necessary under the jurisdiction of its incorporation or the rules
of any national securities exchange on which the Common Stock is listed, a
registrar (which, if permitted by applicable laws and rules may be the same
entity as the transfer agent) for the Common Stock.
6. Representations and Warranties.
The Company hereby represents and warrants to each Underwriter on the date
hereof, and shall be deemed to represent and warrant to each Underwriter on the
Closing Date and the Additional Closing Date, as the case may be, that:
(a) The Company was not at the time of initial filing of the
Registration Statement and at the earliest time thereafter that the Company or
another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the Act) of the Common Stock, is not on the date hereof and will
not be on the applicable Closing Date an "ineligible issuer" (as defined in Rule
405).
(b) The Registration Statement conformed, and any amendment to the
Registration Statement filed after the date hereof will conform in all material
respects when filed, to the requirements of the Act. The most recent Preliminary
Prospectus conformed, and the Prospectus will conform, in all material respects
when filed with the Commission pursuant to Rule 424(b).
(c) The Registration Statement does 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 not misleading; provided, that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein.
(d) The Company satisfies all of the requirements of the Act for use
of Form S-3 for the offering of Shares contemplated hereby. The Prospectus 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 that no representation or warranty is made as to information contained
in or omitted from the Prospectus in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein. The Commission
has not issued any order preventing or suspending the use of any Preliminary
Prospectus and no proceeding for that purpose has been instituted or threatened
by the Commission or the securities authority of any state or other
jurisdiction.
(e) The Time of Sale Information does not, and will not at the
Applicable
-9-
Time, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information contained
in or omitted from the Time of Sale Information in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein.
(f) Each Preliminary Prospectus and the Prospectus, if filed by
electronic transmission pursuant to XXXXX (except as may be permitted by
Regulation S-T under the Act), was identical to the copy thereof delivered to
the Underwriters for use in connection with the offer and sale of the Shares.
(g) Each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under Rule 433),
when considered together with the Time of Sale Information at the Applicable
Time, 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.
(h) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was file), conformed in all material respects with the requirements of
the Exchange Act, and any further Incorporated Documents so filed will, when
they are filed, conform in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder; no such Incorporated
Document when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and no such further Incorporated Document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
(i) Each Issuer Free Writing Prospectus conformed or will conform in
all material respects to the requirements of the Act on the date of first use,
and the Company has complied with all prospectus delivery and any filing
requirements applicable to such Issuer Free Writing Prospectus pursuant to the
Act. The Company has not made any offer relating to the Common Stock that would
constitute an Issuer Free Writing Prospectus and which is not set forth on
Schedule II hereto without the prior written consent of the Representatives. The
Company has retained in accordance with the Act all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the Act. The Company
has taken all actions necessary so that any "road show" (as defined in Rule 433)
in connection with the offering of the Stock will not be required to be filed
pursuant to the Act.
(j) The capitalization of the Company is and will be as set forth in
the Time of Sale Information (to the extent set forth therein) and the
Prospectus as of the date set forth therein. All the outstanding shares of
Common Stock of the Company have been, and as of the
-10-
Closing Date and the Additional Closing Date, as the case may be, will be, duly
authorized and validly issued, are fully paid and nonassessable and are free of
any preemptive or similar rights; except as set forth in the Time of Sale
Information and the Prospectus or for any issuances of stock options under stock
option plans of the Company referred to in the Prospectus, the Company is not a
party to or bound by any outstanding options, warrants or similar rights to
subscribe for, or contractual obligations to issue, sell, transfer or acquire,
any of its capital stock or any securities convertible into or exchangeable for
any of such capital stock; the Shares to be issued and sold to the Underwriters
by the Company hereunder have been duly authorized and, when issued and
delivered to the Underwriters against full payment therefor in accordance with
the terms hereof will be validly issued, fully paid and nonassessable and free
of any preemptive or similar rights; the capital stock of the Company conforms
to the description thereof in the Registration Statement, the Time of Sale
Information and the Prospectus (or any amendment or supplement thereto); and the
delivery of certificates for the Shares being sold by the Company against
payment therefor pursuant to the terms of this Agreement will pass valid title
to the Shares being sold by the Company, free and clear of any claim,
encumbrance or defect in title, to the several Underwriters purchasing such
shares in good faith and without notice of any lien, claim or encumbrance. The
certificates for the Shares being sold by the Company are in valid and
sufficient form.
(k) Each of the Company and its subsidiaries is a corporation duly
organized and validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation with full corporate power and authority
to own, lease and operate its properties and to conduct its business as
presently conducted and as described in the Registration Statement, the Time of
Sale Information and the Prospectus (and any amendment or supplement thereto)
and is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification, except
where the failure to so register or qualify has not had or will not have a
material adverse effect on the condition (financial or other), business,
properties, net worth, results of operations or prospects of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(l) The issued shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable and are owned by the Company free and clear of any security
interests, liens, encumbrances, equities or claims. The Company does not have
any subsidiaries and does not own a material interest in or control, directly or
indirectly, any other corporation, partnership, joint venture, association,
trust or other business organization, except as set forth in Exhibit 21 the
Company's Annual Report on Form 10-K for its fiscal year ended December 31,
2004, which is incorporated by reference into the Registration Statement. As
used in this Agreement, subsidiaries shall mean direct and indirect subsidiaries
of the Company.
(m) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, against the Company or its subsidiaries or
to which the Company or its subsidiaries or any of their properties are subject,
that are required to be
-11-
described in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) but are not described as required. Except as described in
the Registration Statement, the Time of Sale Information and Prospectus, there
is no action, suit, inquiry, proceeding or investigation by or before any court
or governmental or other regulatory or administrative agency or commission
pending or, to the knowledge of the Company, threatened, against or involving
the Company or its subsidiaries, which might individually or in the aggregate
prevent or adversely affect the transactions contemplated by this Agreement or
result in a Material Adverse Effect, nor to the Company's knowledge, is there
any basis for any such action, suit, inquiry, proceeding or investigation. There
are no agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement, the Time of Sale
Information or the Prospectus (or any amendment or supplement thereto) or to be
filed as an exhibit to the Registration Statement that are not described, filed
or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus as required by the Act. All such contracts to
which the Company or any of its subsidiaries is a party have been duly
authorized, executed and delivered by the Company or the applicable subsidiary,
constitute valid and binding agreements of the Company or the applicable
subsidiary and are enforceable against the Company or the applicable subsidiary
in accordance with the terms thereof, except as enforceability thereof may be
limited by (i) the application of bankruptcy, reorganization, insolvency and
other laws affecting creditors' rights generally and (ii) equitable principles
being applied at the discretion of a court before which any proceeding may be
brought. Neither the Company nor the applicable subsidiary has received notice
or been made aware that any other party is in breach of or default to the
Company under any of such contracts.
(n) Neither the Company nor any of its subsidiaries is (i) in
violation of (A) its articles of incorporation or bylaws, or other
organizational documents, (B) any law, ordinance, administrative or governmental
rule or regulation applicable to the Company or any of its subsidiaries, the
violation of which would have a Material Adverse Effect or (C) any decree of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries; or (ii) in default in any material respect in the
performance of any obligation, agreement or condition contained in (A) any bond,
debenture, note or any other evidence of indebtedness or (B) any agreement,
indenture, lease or other instrument (each of (A) and (B), an "Existing
Instrument") to which the Company or any of its subsidiaries is a party or by
which any of their properties may be bound, which default would have a Material
Adverse Effect; and there does not exist any state of facts that constitutes an
event of default on the part of the Company or any of its subsidiaries as
defined in such documents or that, with notice or lapse of time or both, would
constitute such an event of default.
(o) The Company's execution and delivery of this Agreement and the
performance by the Company of its obligations under this Agreement have been
duly and validly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except to the extent enforceability may be limited by (i) the
application of bankruptcy, reorganization, insolvency and other laws affecting
creditors' rights generally and (ii) equitable principles being applied at the
discretion of a court
-12-
before which any proceeding may be brought, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws.
(p) None of the issuance and sale of the Shares by the Company, the
execution, delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby (i) requires
any consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration of
the Shares under the Act, the listing of the Shares for trading on the NASDAQ,
the registration of the Common Stock under the Exchange Act and compliance with
the securities or Blue Sky laws of various jurisdictions, all of which will be,
or have been, effected in accordance with this Agreement and except for the
NASD's clearance of the underwriting terms of the offering contemplated hereby
as required under the NASD's Rules of Fair Practice), (ii) conflicts with or
will conflict with or constitutes or will constitute a breach of, or a default
under, the Company's articles of incorporation or the Company's bylaws or any
agreement, indenture, lease or other instrument to which the Company or any of
its subsidiaries is a party or by which any of its properties may be bound,
(iii) violates any statute, law, regulation, ruling, filing, judgment,
injunction, order or decree applicable to the Company or any of its subsidiaries
or any of their properties, or (iv) results in a breach of, or default or Debt
Repayment Triggering event (as defined below) under, or results in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, or requires the consent of
any other party to, any Existing Instrument, except for such conflicts,
breaches, defaults, liens, charges or encumbrances that will not, individually
or in the aggregate, result in a Material Adverse Effect. As used herein, a
"Debt Repayment Triggering Event" means any event or condition that gives, or
with the giving of notice or lapse of time would give, the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its subsidiaries.
(q) Except as described in the Time of Sale Information and the
Prospectus, and except for options to purchase capital stock issued pursuant to
the Company's 1997 Stock Incentive Plan and 2000 Stock Incentive Plan, neither
the Company nor any of its subsidiaries has outstanding and at the Closing Date
and the Additional Closing Date, as the case may be, will have outstanding any
options to purchase, or any warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue or sell,
any shares of Common Stock or any such warrants or convertible securities or
obligations. No holder of securities of the Company has rights to the
registration of any securities of the Company as a result of or in connection
with the filing of the Registration Statement or the consummation of the
transactions contemplated hereby that have not been satisfied or heretofore
waived in writing.
(r) Each of KPMG LLP and Ernst & Young LLP is an independent
registered public accounting firm with respect to the Company and its
subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Accounting Oversight Board
-13-
(United States) and as required by the Securities Act and the Exchange Act.
(s) The financial statements, together with related schedules and
notes, included in the Registration Statement, the Time of Sale Information and
the Prospectus (and any amendment or supplement thereto), present fairly the
financial condition, results of operations, cash flows and changes in financial
position of the Company on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth in the Registration
Statement, the Time of Sale Information and the Prospectus (and any amendment or
supplement thereto) is accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company. The pro
forma consolidated financial statements together with related notes thereto
included in the Registration Statement, the Time of Sale Information and the
Prospectus (and any amendment or supplement thereto) have been prepared in
accordance with the Commission's rules and regulations with respect to pro forma
financial statements and have been properly presented on the bases described
therein. The pro forma adjustments made therein have been properly applied to
the historical amounts in the compilation of such statements. Additionally, the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein. No other financial statements or schedules
are required to be included in the Registration Statement.
(t) Except as otherwise disclosed in the Registration Statement, the
Time of Sale Information and the Prospectus, neither the Company nor any
subsidiary has engaged in or effected any transaction or arrangement that would
constitute an "off-balance sheet arrangement" (as defined in Item 303 of
Regulation S-K of the Commission ("Regulation S-K")). All non-GAAP financial
measures (as defined in Regulation G of the Commission ("Regulation G")) have
been presented in compliance with Regulation G and Item 10 of Regulation S-K.
(u) Except as disclosed in the Registration Statement, the Time of
Sale Information and the Prospectus (or any amendment or supplement thereto),
subsequent to the respective dates as of which such information is given in the
Registration Statement, the Time of Sale Information and the Prospectus (or any
amendment or supplement thereto), (i) neither the Company nor any of its
subsidiaries has incurred any material liabilities or obligations, indirect,
direct or contingent, or entered into any material transaction that is not in
the ordinary course of business, (ii) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its business
or properties from fire, flood, windstorm, accident or other calamity, whether
or not covered by insurance, (iii) neither the Company nor any of its
subsidiaries has paid or declared any dividends or other distributions with
respect to its capital stock and the Company is not in default under the terms
of any class of capital stock of the Company or any outstanding debt
obligations, (iv) there has not been any change in the authorized or outstanding
capital stock of the Company (other than pursuant to the exercise of stock
options granted under stock option plans of the Company disclosed in the
Prospectus) or
-14-
any material change in the indebtedness of the Company (other than in the
ordinary course of business) and (v) there has not been any Material Adverse
Effect, or any development involving or that may reasonably be expected to
result in a Material Adverse Effect.
(v) All offers and sales of the Company's capital stock and other debt
or other securities prior to the date hereof were made in compliance with or
were the subject of an available exemption from the Act and all other applicable
state and federal laws or regulations.
(w) The Common Stock (including the Shares) is registered pursuant to
Section 12(g) of the Exchange Act and is listed on the NASDAQ, and the Company
has taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or delisting the
Common Stock from the NASDAQ, nor has the Company received any notification that
the Commission or the NASD is contemplating terminating such registration or
listing.
(x) Other than excepted activity pursuant to Regulation M under the
Exchange Act, the Company has not taken and will not take, directly or
indirectly, any action that constituted, or any action designed to, or that
might reasonably be expected to cause or result in or constitute, under the Act
or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or for any other purpose.
(y) The Company and each of its subsidiaries have filed all tax
returns required to be filed (other than certain state or local tax returns, as
to which the failure to file, individually or in the aggregate, would not have a
Material Adverse Effect), which returns are complete and correct, and neither
the Company nor any subsidiary is in default in the payment of any taxes that
were payable pursuant to said returns or any assessments with respect thereto.
Except as disclosed in the Time of Sale Information and the Prospectus, all
deficiencies asserted as a result of any federal, state, local or foreign tax
audits have been paid or finally settled and no issue has been raised in any
such audit that, by application of the same or similar principles, reasonably
could be expected to result in a proposed deficiency for any other period not so
audited. There are no outstanding agreements or waivers extending the statutory
period of limitation applicable to any federal, state, local or foreign tax
return for any period. On the Closing Date and the Additional Closing Date, as
the case may be, all stock transfer and other taxes that are required to be paid
in connection with the sale of the shares to be sold by the Company to the
Underwriters will have been fully paid by the Company and all laws imposing such
taxes will have been complied with.
(z) Except as set forth in the Time of Sale Information and the
Prospectus, there are no transactions with "affiliates" (as defined in Rule 405
promulgated under the Act) or any officer, director or security holder of the
Company (whether or not an affiliate) that are required by the Act to be
disclosed in the Registration Statement. Additionally, no relationship, direct
or indirect, exists between the Company or any of its subsidiaries on the one
hand, and the directors, officers, stockholders, customers or suppliers of the
Company or any subsidiary on the other hand that is required by the Act to be
disclosed in the Registration Statement, the Time of
-15-
Sale Information and the Prospectus that is not so disclosed.
(aa) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an investment company
within the meaning of the Investment Company Act of 1940, as amended.
(bb) Except as otherwise disclosed in the Prospectus, each of the
Company and its subsidiaries has good and valid title to all property (real and
personal) described in the Prospectus as being owned by it, free and clear of
all liens, claims, security interests or other encumbrances except (i) such as
are described in the Prospectus or (ii) such as are not materially burdensome
and do not have or will not result in a Material Adverse Effect to the use of
the property or the conduct of the business of the Company. All property (real
and personal) held under lease by the Company and its subsidiaries is held by it
under valid, subsisting and enforceable leases with only such exceptions as in
the aggregate are not materially burdensome and do not have or result in a
Material Adverse Effect.
(cc) Except as otherwise disclosed in the Time of Sale Information and
the Prospectus, there is and has been no failure on the part of the Company or
any of its directors or officers, in their capacities as such, to comply in all
material respects with any provision of the Sarbanes Oxley Act of 2002. The
Company and each of its subsidiaries maintain disclosure controls and procedures
(as defined in Rule 13a-15(e) of the Exchange Act) that are designed to ensure
that information required to be disclosed by the Company in the reports that it
has filed or will file under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the Commission's rules and
forms. Except as otherwise disclosed in the Time of Sale Information and the
Prospectus, the Company and each of its subsidiaries maintain internal control
over financial reporting (as defined in Rule 13a-15(f) of the Commission)
sufficient to provide reasonable assurance regarding the (A) reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles, (B)
maintenance of records that in reasonable detail accurately and fairly reflect
transactions and dispositions of the assets of the Company and its subsidiaries,
(C) recording of transactions as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles and that
receipts and expenditures of the Company and its subsidiaries are being made
only in accordance with authorizations of management and directors of the
Company or the applicable subsidiary, and (D) prevention or timely detection of
unauthorized acquisition, use or disposition of the Company's or its
subsidiaries' assets that could have a material effect on the financial
statements.
(dd) Except as otherwise disclosed in the Time of Sale Information and
the Prospectus, neither the Company nor any of its subsidiaries, since each has
been a subsidiary of the Company, nor, to the knowledge of the Company, any
employee or agent of the Company or any of its subsidiaries, has, directly or
indirectly, (i) made any unlawful contribution to any candidate for political
office, or failed to disclose fully any contribution in violation of law or (ii)
made any payment to any federal, state, local or foreign governmental official,
or other person charged with similar public or quasi-public duties, other than
payments required or permitted by
-16-
the laws of the United States or any jurisdiction thereof or applicable foreign
jurisdictions.
(ee) Except as otherwise disclosed in the Time of Sale Information and
the Prospectus, the Company and its subsidiaries are (i) in compliance with any
and all applicable federal, state, local and foreign laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or other approvals would not, individually or in the aggregate, have a
Material Adverse Effect. Neither the Company nor any of its subsidiaries has
been named as a "potentially responsible party" under the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended.
Neither the Company nor any of its subsidiaries owns, leases or occupies any
property that appears on any list of hazardous sites compiled by any state or
local governmental agency.
(ff) Except as otherwise disclosed in the Time of Sale Information and
the Prospectus, each of the Company and its subsidiaries owns and has full
right, title and interest in and to, or has valid licenses to use or distribute,
each material trade name, trademark, service xxxx, patent, copyright, approval,
trade secret and other similar rights (collectively "Intellectual Property")
under which the Company and its subsidiaries conduct all or any material part of
its business, and the Company has not granted any right or license with respect
to, any such Intellectual Property except where the failure to own or obtain a
license or right to use or distribute, or the grant of such right or license
with respect to, any such Intellectual Property has not and will not have a
Material Adverse Effect; there is no claim of infringement, invalidity,
misappropriation or other adverse claim pending before a court or other
governmental authority against the Company or its subsidiaries with respect to
any material Intellectual Property and neither the Company nor any of its
subsidiaries has received notice or otherwise become aware that any material
Intellectual Property that it uses or has used in the conduct of its business
infringes upon or conflicts with the rights of any third party.
(gg) The Company has procured Lock-Up Agreements, in the form of
Exhibit A attached hereto, from each of the Company's executive officers and
directors.
(hh) Except as disclosed to the Representatives in writing prior to
the date hereof, to the knowledge of the Company, no officer, director or
nominee for director of the Company has a direct or indirect affiliation or
association with any member of the NASD.
(ii) Except as otherwise disclosed in the Time of Sale Information and
the Prospectus, the Company and each of its subsidiaries are insured against
such losses and risks and in such amounts as are customary in the businesses in
which it is engaged; and neither the Company nor any of its subsidiaries has
reason to believe that it will not be able to renew its
-17-
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a comparable cost.
(jj) Except as otherwise disclosed in the Time of Sale Information and
the Prospectus, the Company and its subsidiaries and any "employee benefit plan"
(as defined under the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA and all other applicable state and federal
laws. "ERISA Affiliate" means, with respect to the Company or a subsidiary, any
member of any group or organization described in Sections 414(b), (c), (m) or
(o) of the Internal Revenue Code of 1986, as amended (the "Code") of which the
Company or such subsidiary is a member. No "reportable event" (as defined in
ERISA) has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan" were terminated, would have any
"amount of unfunded benefit liabilities" (as defined in ERISA). Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act, that
would cause the loss of such qualification.
(kk) The statements, (including the assumptions described therein)
included in the Registration Statement, the Time of Sale Information and the
Prospectus, including certain statements under the heading "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
are within the coverage of Rule 175(b) under the Act because such data
constitute forward looking statements as defined in Rule 175(c) were made by the
Company with a reasonable basis and reflect the Company's good faith estimate of
the matters described therein.
7. Expenses. Whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective or is terminated, the Company
agrees to pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses of the Company
in connection with the preparation, printing and filing of the Registration
Statement and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof and of any Preliminary Prospectus to
the Underwriters and dealers; (ii) the cost of printing and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, the Prospectus, each Preliminary
Prospectus, the Time of Sale Information, the Blue Sky memoranda, the Master
Agreement Among Underwriters, this Agreement, the Selected Dealers Agreement and
all
-18-
amendments or supplements to any of them as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) consistent with
the provisions of Section 5(i), all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws or
Blue Sky laws, including reasonable attorneys' fees and out-of-pocket expenses
of the counsel for the Underwriters in connection therewith; (iv) the filing
fees incident to securing any required review by the NASD of the fairness of the
terms of the sale of the Shares and the reasonable fees and disbursements of the
Underwriters' counsel relating thereto; (v) the fees and expenses associated
with including the Shares on the NASDAQ; (vi) the cost of preparing stock
certificates; (vii) the costs and charges of any transfer agent or registrar;
(viii) the cost of the tax stamps, if any, in connection with the issuance and
delivery of the Shares to the respective Underwriters; (ix) all other fees,
costs and expenses referred to in Item 14 of the Registration Statement; and (x)
the transportation, lodging, graphics and other expenses incidental to the
Company's preparation for and participation in the "roadshow" for the offering
contemplated hereby. Except as provided in this Section 7 and in Section 8
hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel. In addition, in the event that the proposed
offering is terminated for the reasons set forth in Section 5(m) hereof, the
Company agrees to reimburse the Underwriters as provided in Section 5(m).
8. Indemnification and Contribution. Subject to the limitations in this
paragraph below, the Company agrees to indemnify and hold harmless you and each
other Underwriter, the directors, officers, employees and agents of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses, including
reasonable costs of investigation and attorneys' fees and expenses
(collectively, "Damages") arising out of or based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, in the Registration Statement, the Time of Sale Information, any
Issuer Free Writing Prospectus or the Prospectus or in any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading, except to the extent that any such Damages
arise out of or are based upon an untrue statement or omission or alleged untrue
statement or omission that has been made therein or omitted therefrom in
reliance upon and in conformity with the information furnished in writing to the
Company by or on behalf of any Underwriter through you, expressly for use in
connection therewith or (ii) any failure of the Company to perform its
obligations hereunder or under law. This indemnification shall be in addition to
any liability that the Company may otherwise have.
In addition to its other obligations under this Section 8, the Company
agrees that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any inaccuracy in the representations and warranties
of the Company herein or failure to perform its obligations hereunder, all as
set forth in this Section 8, the party against whom indemnification is being
sought will reimburse each Underwriter on a monthly basis for all reasonable
legal or other out-
-19-
of-pocket expenses incurred in connection with investigating or defending any
such claim, action, investigation, inquiry or other proceeding (to the extent
documented by reasonably itemized invoices therefor), notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
the obligation of the Company to reimburse each Underwriter for such expenses
and the possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, each Underwriter shall
promptly return it to the person(s) from whom it was received. Any such interim
reimbursement payments that are not made to the Underwriters within 30 days of a
request for reimbursement shall bear interest compounded daily at a rate
determined on the basis of the base lending rate announced from time to time by
The Wall Street Journal from the date of such request.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Company, such Underwriter or such controlling person shall promptly
notify in writing the party(s) against whom indemnification is being sought (the
"indemnifying party"), and such indemnifying party shall assume the defense
thereof, including the employment of counsel reasonably acceptable to such
Underwriter or such controlling person and the payment of all reasonable fees of
and expenses incurred by such counsel. Such Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person, unless
(i) the indemnifying party has agreed in writing to pay such fees and expenses,
(ii) the indemnifying party has failed to assume the defense and employ counsel
reasonably acceptable to the Underwriter or such controlling person within a
reasonable period of time after receiving notice of the commencement thereof or
(iii) the named parties to any such action (including any impleaded parties)
include both such Underwriter or such controlling person and the indemnifying
party, and such Underwriter or such controlling person shall have been advised
by its counsel that one or more legal defenses may be available to the
Underwriter that could reasonably be expected to conflict with or be
inconsistent with those available to the Company, or that representation of such
indemnified party and any indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of such
Underwriter or such controlling person (but the Company shall not be liable for
the fees and expenses of more than one counsel for the Underwriters and such
controlling persons)). The indemnifying party shall not be liable for any
settlement of any such action effected without its written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any Underwriter and any such controlling person from and against
any loss, claim, damage, liability or expense by reason of such settlement or
judgment, but in the case of a judgment only to the extent stated in the first
paragraph of this Section 8.
Each Underwriter agrees, severally and jointly, to indemnify and hold
harmless the
-20-
Company, its directors, its officers who sign the Registration Statement and any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing several
indemnity from the Company to each Underwriter, but only with respect to
information furnished in writing by or on behalf of such Underwriter through you
expressly for use in the Registration Statement, the Prospectus, the Time of
Sale Information, any Issuer Free Writing Prospectus or any Preliminary
Prospectus, or any amendment or supplement thereto. If any action or claim shall
be brought or asserted against the Company, any of its directors, any of its
officers or any such controlling person based on the Registration Statement, the
Prospectus, the Time of Sale Information or any Preliminary Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph, such Underwriter shall have
the rights and duties given to the Company by the immediately preceding
paragraph (except that if the Company shall have assumed the defense thereof
such Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter's expense), and the Company, its
directors, any such officers and any such controlling persons, shall have the
rights and duties given to the Underwriters by the immediately preceding
paragraph.
In any event, no indemnifying party shall, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry
of any judgment in any proceeding or threatened claim, action, suit or
proceeding in respect of which any indemnified party is or could have been a
party and indemnification may be sought hereunder (whether or not the
indemnified party is a party to such claim, action, suit or proceeding) unless
such settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
If the indemnification provided for in this Section 8 is unavailable or
insufficient for any reason whatsoever to an indemnified party in respect of any
Damages referred to herein, then an indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Damages (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand, and the Underwriters on the other hand, from the offering and sale of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative and
several fault of the Company on the one hand, and the Underwriters on the other
hand, in connection with the statements or omissions that resulted in such
Damages as well as any other relevant equitable considerations. The relative and
several benefits received by the Company on the one hand, and the Underwriters
on the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus; provided that, in the event that the Underwriters shall have
purchased any Additional Shares hereunder, any determination of the relative
benefits received by the Company or the Underwriters from the offering of the
Shares shall include the net proceeds (before deducting expenses) received by
the
-21-
Company and the underwriting discounts and commissions received by the
Underwriters, from the sale of such Additional Shares, in each case computed on
the basis of the respective amounts set forth in the notes to the table on the
cover page of the Prospectus. The relative fault of the Company on the one hand,
and the Underwriters on the other hand, 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 on the one hand, or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 was determined by a 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 into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Damages
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, 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, no Underwriter shall be required to contribute any amount in excess
of the amount of the underwriting commissions received by such underwriter in
connection with the Shares underwritten by it and distributed to the public. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto (or such numbers of Firm Shares increased as set forth in Section 10
hereof) and not joint.
Notwithstanding the second paragraph of this Section 8, any Damages for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as Damages are incurred after receipt of reasonably itemized invoices therefor.
The indemnity, contribution and reimbursement agreements contained in this
Section 8 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Company, its directors or officers or any
person controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder and (iii) any termination of this Agreement. A successor to
any Underwriter or any person controlling any Underwriter, or to the Company,
its directors or officers or any person controlling the Company, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in the second paragraph of this
Section 8, including the amounts of any
-22-
requested reimbursement payments and the method of determining such amounts,
shall be settled by arbitration conducted pursuant to the Code of Arbitration
Procedure of the NASD. Any such arbitration must be commenced by service of a
written demand for arbitration or written notice of intention to arbitrate,
therein electing the arbitration tribunal. In the event the party demanding
arbitration does not make such designation of an arbitration tribunal in such
demand or notice, then the party responding to said demand or notice is
authorized to do so. Such arbitration would be limited to the operation of the
interim reimbursement provisions contained in the second and fourth paragraphs
of this Section 8, and would not resolve the ultimate propriety or
enforceability of the obligation to reimburse expenses that is created by the
provisions of the second paragraph of this Section 8.
9. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase the Firm Shares hereunder are subject to the following
conditions:
(a) The Registration Statement shall have become effective not later
than 3:00 p.m., New York City time, on the date hereof, or at such later date
and time as shall be consented to in writing by the Representative, and all
filings required by Rules 424(b), 430A and 462 under the Act shall have been
timely made.
(b) You shall be reasonably satisfied that since the respective dates
as of which information is given in the Registration Statement, the Time of Sale
Information and Prospectus, (i) there shall not have been any change in the
capital stock of the Company (other than pursuant to the exercise of stock
options granted under stock option plans of the Company disclosed in the
Prospectus) or any material change in the indebtedness (other than in the
ordinary course of business) of the Company, (ii) except as set forth or
contemplated by the Registration Statement, the Time of Sale Information or the
Prospectus, no material oral or written agreement or other transaction shall
have been entered into by the Company that is not in the ordinary course of
business or that could reasonably be expected to result in a material reduction
in the future earnings of the Company, (iii) no loss or damage (whether or not
insured) to the property of the Company shall have been sustained that had or
could reasonably be expected to have a Material Adverse Effect, (iv) no legal or
governmental action, suit or proceeding affecting the Company or any of its
properties that is material to the Company or that affects or could reasonably
be expected to affect the transactions contemplated by this Agreement shall have
been instituted or threatened and (v) there shall not have been any material
change in the condition (financial or otherwise), business, management, results
of operations or prospects of the Company or its subsidiaries that makes it
impractical or inadvisable in your judgment to proceed with the public offering
or purchase of the Shares as contemplated hereby.
(c) You shall have received on the Closing Date (and the Additional
Closing Date, if any) an opinion of Xxxxxxxxxx Xxxxxxxx LLP, counsel to the
Company, substantially in the form contained in Exhibit B-1, and Xxxxxxx X.
Xxxx, the General Counsel of the Company, substantially in the form contained in
Exhibit B-2.
(d) You shall have received on the Closing Date or Additional Closing
Date,
-23-
as the case may be, an opinion of Xxxxxx & Bird LLP, as counsel for the
Underwriters, dated the Closing Date or Additional Closing Date, as the case may
be, with respect to the issuance and sale of the Shares, the Registration
Statement and other related matters as you may reasonably request, and the
Company and its counsel shall have furnished to your counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(e) You shall have received letters addressed to you and dated the
date hereof and the Closing Date or the Additional Closing Date, as the case may
be, from the firms of KPMG LLP and Ernst & Young LLP, each an independent
registered public accounting firm.
(f) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued by the Commission and no proceedings for that
purpose shall be pending or, to the knowledge of the Company, shall be
threatened or contemplated by the Commission at or prior to the Closing Date or
Additional Closing Date, as the case may be; (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or registration
of the Shares under the securities or Blue Sky laws of any jurisdiction shall be
in effect and no proceeding for such purpose shall be pending or, to the
knowledge of the Company, threatened or contemplated by the authorities of any
jurisdiction; (iii) any request for additional information on the part of the
staff of the Commission or any such authorities shall have been complied with to
the satisfaction of the staff of the Commission or such authorities; (iv) after
the date hereof, no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted to
you and you did not object thereto in good faith; and (v) all of the
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects (except for such representations
and warranties qualified by materiality, which representations and warranties
shall be true and correct in all respects) on and as of the date hereof and on
and as of the Closing Date or Additional Closing Date, as the case may be, as if
made on and as of the Closing Date or Additional Closing Date, as the case may
be, and you shall have received a certificate, dated the Closing Date and signed
by the chief executive officer and the chief financial officer of the Company
(or such other officers as are acceptable to you) to the effect set forth in
this Section 9(f) and in Sections 9(b) and 9(g) hereof.
(g) The Company shall not have failed in any material respect at or
prior to the Closing Date or the Additional Closing Date, as the case may be, to
have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date or Additional Closing Date, as the case may be.
(h) The Company shall have furnished or caused to have been furnished
to you such further certificates and documents as you shall have reasonably
requested.
(i) At or prior to the Closing Date, you shall have received the
written Lock-Up Agreements from each of the Company's executive officers and
directors substantially in the form of Exhibit A hereto.
-24-
(j) At or prior to the effective date of the Registration Statement,
you shall have received a letter from the Corporate Financing Department of the
NASD confirming that such Department has determined to raise no objections with
respect to the fairness or reasonableness of the underwriting terms and
arrangements of the offering contemplated hereby.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase Additional Shares
hereunder are subject to the satisfaction on and as of the Additional Closing
Date of the conditions set forth in this Section 9, except that, if the
Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in this Section 9 shall be dated as of the
Additional Closing Date and the opinions called for by paragraphs (c) and (d)
shall be revised to reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 9 shall
not have been satisfied when and as required by this Agreement, this Agreement
may be terminated by you by notifying the Company of such termination in writing
or by telegram at or prior to such Closing Date, but you shall be entitled to
waive any of such conditions.
10. Effective Date of Agreement. This Agreement shall become effective upon
the later of (a) the execution and delivery hereof by the parties hereto and (b)
release of notification of the effectiveness of the Registration Statement by
the Commission; provided, however, that the provisions of Sections 7 and 8 shall
at all times be effective.
11. Defaulting Underwriters. If any one or more of the Underwriters shall
fail or refuse to purchase Firm Shares that it or they have agreed to purchase
hereunder, and the aggregate number of Firm Shares that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Firm Shares, each non-defaulting
Underwriter shall be obligated, severally, in the proportion in which the number
of Firm Shares set forth opposite its name in Schedule I hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters or in such other proportion as you may specify in
the Agreement Among Underwriters, to purchase the Firm Shares that such
defaulting Underwriter or Underwriters agreed, but failed or refused to
purchase. If any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case that does not result in termination of this Agreement,
either you or the Company shall have the right to postpone the Closing Date, but
in no event for longer than seven (7) days, in order that the required changes,
if any, in the Registration Statement and the
-25-
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement.
12. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company by notice to the Company, if prior to the Closing
Date or the Additional Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, in your sole judgment,
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the NASDAQ, (ii) trading in securities generally on the NYSE or
NASDAQ shall have been suspended or materially limited, or minimum or maximum
prices shall have been generally established on such exchange, or additional
material governmental restrictions, not in force on the date of this Agreement,
shall have been imposed upon trading in securities generally by any such
exchange or by order of the Commission or any court or other governmental
authority, (iii) a general moratorium on commercial banking activities shall
have been declared by either federal or New York State authorities (iv) any
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act (v) any such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities or (vi) there shall have occurred any outbreak
or escalation of hostilities or other international or domestic calamity, crisis
or change in political, financial or economic conditions or other material event
the effect of which on the financial markets of the United States is such as to
make it, in your judgment, impracticable or inadvisable to market the Shares or
to enforce contracts for the sale of the Shares. Notice of such cancellation
shall be promptly given to the Company and its counsel by telegraph, telecopy or
telephone and shall be subsequently confirmed by letter.
13. Information Furnished by the Underwriters. The Company acknowledges
that the fifth, eighth, ninth, tenth, eleventh and twelfth paragraphs under the
caption "Underwriting" in any Preliminary Prospectus, constitute the only
information furnished by or on behalf of the Underwriters through you or on your
behalf as such information is referred to in Sections 6(c), 6(d), 6(e) and 8
hereof and elsewhere in this Agreement.
14. Underwriter Free- Writing Prospectuses. Each Underwriter severally
agrees that such Underwriter shall not include any "issuer information" (as
defined in Rule 433) in any free writing prospectus used or referred to by such
Underwriter without the prior consent of the Company (any such issuer
information with respect to whose use the Company has given its consent,
"Permitted Issuer Information"); provided that (i) no such consent shall be
required with respect to any such issuer information contained in any document
filed by the Company, and not superseded or corrected by a document subsequently
filed by the Company, with the Commission prior to the use of such free writing
prospectus and (ii) "issuer information," as used in this Section 14, shall not
be deemed to include information prepared by or on behalf of such Underwriter on
the basis of or derived from issuer information. Each Underwriter also severally
represents and agrees that such Underwriter has not used or referred to any free
writing
-26-
prospectus in connection with the offering that includes any information other
than Permitted Issuer Information if such free writing prospectus conflicts with
information contained in (i) the Registration Statement, including any
Preliminary Prospectus or the Prospectus and not superseded or modified or (ii)
any document filed or furnished under the Exchange Act that is incorporated by
reference into the Registration Statement and not superseded or modified.
15. No Fiduciary Relationship. Each of the Company and the Underwriters
acknowledges and agrees that (i) the purchase and sale of the Shares pursuant to
this Agreement, including the determination of the public offering price of the
Shares and any related discounts and commissions, is an arm's-length commercial
transaction between the Company, on the one hand, and the several Underwriters,
on the other hand, (ii) in connection with the offering contemplated hereby and
the process leading to such transaction each Underwriter is and has been acting
solely as a principal and is not the agent or fiduciary of the Company or its
subsidiaries, or its shareholders, creditors, employees or any other party,
(iii) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company or its subsidiaries with respect to the
offering contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Company and
its subsidiaries on other matters) and no Underwriter has any obligation to the
Company or its subsidiaries with respect to the offering contemplated hereby
except the obligations expressly set forth in this Agreement, (iv) the
Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and
its subsidiaries, and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and each of the Company and its subsidiaries has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed appropriate.
-27-
15. Miscellaneous. Except as otherwise provided in Sections 5 and 12
hereof, notice given pursuant to any of the provisions of this Agreement shall
be in writing and shall be delivered
(i) to the Company
EMS Technologies, Inc.
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
with a copy to
Xxxxxxxxxx Xxxxxxxx LLP
Suite 2800
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
(ii) to the Underwriters
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
with a copy to
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company and its directors and officers.
16. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without reference
to choice of law principles thereunder.
This Agreement may be signed in various counterparts, which together shall
constitute one and the same instrument.
This Agreement shall be effective when, but only when, at least one
counterpart hereof
-28-
shall have been executed on behalf of each party hereto.
The Company and the Underwriters each hereby irrevocably waive any right
they may have to a trial by jury in respect to any claim based upon or arising
out of this Agreement or the transactions contemplated hereby.
[SIGNATURES ON NEXT PAGE]
-29-
Please confirm that the foregoing correctly sets forth the agreement among
the Company and the several Underwriters.
Very truly yours,
EMS Technologies, Inc.
/S/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
CONFIRMED as of the date first above mentioned, on behalf of the Representatives
and the other several Underwriters named in Schedule I hereto.
XXXXXXX XXXXX & ASSOCIATES, INC. XXXXXXX & COMPANY, LLC
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------------- ------------------------------------
Authorized Representative Authorized Representative
Senior Vice President Managing Director
X.X. XXXXXXX & SONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Authorized Representative
Sr. Vice President
Director of Syndicate
