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EXHIBIT 1.1
2,700,000 Shares
SPR Inc.
Common Stock
FORM OF
UNDERWRITING AGREEMENT
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January , 1996
XXXXX XXXXXX INC.
XXXXXX X. XXXXX & CO. INCORPORATED
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
SPR Inc., a Delaware corporation (the "Company"), proposes to issue
and sell an aggregate of 1,666,666 shares of its common stock, $0.01 par value
per share, to the several Underwriters named in Schedule II hereto (the
"Underwriters"), and the persons named in Part A of Schedule I hereto (the
"Selling Stockholders") propose to sell to the several Underwriters an
aggregate of 1,033,334 shares of common stock of the Company. The Company and
the Selling Stockholders are hereinafter sometimes referred to as the
"Sellers." The Company's common stock, $0.01 par value, is hereinafter
referred to as the "Common Stock" and the 1,666,666 shares of Common Stock to
be issued and sold to the Underwriters by the Company and the 1,033,334 shares
of Common Stock to be sold to the Underwriters by the Selling Stockholders are
hereinafter referred to as the "Firm Shares." The Company and the Selling
Stockholders listed in Part B of Schedule I hereto also propose to sell to the
Underwriters, upon the terms and conditions set forth in Section 2 hereof, up
to an additional 405,000 shares (the "Additional Shares") of Common Stock. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "Shares." All references to the "Company" refer to SPR Inc., after the
Reorganizations described in Section 7(d) hereof have been effected, or to the
Constituent Corporations, as defined in Section 7(d) hereof, as appropriate.
The Company and the Selling Stockholders wish to confirm as follows
their respective agreements with you (the "Representatives") and the other
several Underwriters on whose behalf you are acting, in connection with the
several purchases of the Shares by the Underwriters.
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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-1 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Shares. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it becomes effective, or, if the registration statement
became effective prior to the execution of this Agreement, as supplemented or
amended prior to the execution of this Agreement. If it is contemplated, at
the time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Shares may commence, the term "Registration Statement" as used
in this Agreement means the registration statement as amended by said
post-effective amendment. If an abbreviated registration statement is prepared
and filed with the Commission in accordance with Rule 462(b) under the Act (an
"Abbreviated Registration Statement"), the term "Registration Statement" as
used in this Agreement includes the Abbreviated Registration Statement. The
term "Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement as supplemented by the addition of the Rule 430A information
contained in the prospectus filed with the Commission pursuant to Rule 424(b).
The term "Prepricing Prospectus" as used in this Agreement means the prospectus
subject to completion in the form included in the registration statement at the
time of the initial filing of the registration statement with the Commission,
and as such prospectus shall have been amended from time to time prior to the
date of the Prospectus.
2. Agreements to Sell and Purchase. Subject to such adjustments as
you may determine in order to avoid fractional shares, the Company hereby
agrees, subject to all the terms and conditions set forth herein, to issue and
sell to each Underwriter and, upon the basis of the representations, warranties
and agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $_____ per Share (the "purchase price per share"), the number of Firm
Shares which bears the same proportion to the aggregate number of Firm Shares
to be issued and sold by the Company as the number of Firm Shares set
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forth opposite the name of such Underwriter in Schedule II hereto (or such
number of Firm Shares increased as set forth in Section 12 hereof) bears to the
aggregate number of Firm Shares to be sold by the Company and the Selling
Stockholders.
Subject to such adjustments as you may determine in order to avoid
fractional shares, each Selling Stockholder agrees, subject to all the terms
and conditions set forth herein, to sell to each Underwriter and, upon the
basis of the representations, warranties and agreements of the Company and the
Selling Stockholders herein contained and subject to all the terms and
conditions set forth herein, each Underwriter, severally and not jointly,
agrees to purchase from each Selling Stockholder at the purchase price per
share that number of Firm Shares which bears the same proportion to the number
of Firm Shares set forth opposite the name of such Selling Stockholder in
Schedule I hereto as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule II hereto (or such number of Firm Shares increased
as set forth in Section 12 hereof) bears to the aggregate number of Firm Shares
to be sold by the Company and the Selling Stockholders.
The Company and the Selling Stockholders listed in Part B of Schedule
I hereto also agree, subject to all the terms and conditions set forth herein,
to sell to the Underwriters, and, upon the basis of the representations,
warranties and agreements of the Company and the Selling Stockholders herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Company and the Selling
Stockholders listed in Part B of Schedule I hereto, at the purchase price per
share, pursuant to a one-time option (the "over-allotment option") which may be
exercised at any time prior to 9:00 P.M., New York City time, on the 30th day
after the date of the Prospectus (or, if such 30th day shall be a Saturday or
Sunday or a holiday, on the next business day thereafter when the New York
Stock Exchange is open for trading), up to an aggregate of _______ Additional
Shares from the Company and up to an aggregate of ________ shares from the
Selling Stockholders listed in Part B of Schedule I hereto (the maximum number
of Additional Shares which each of them agrees to sell upon the exercise by the
Underwriters of the over-allotment option is set forth opposite their
respective names in Part B of Schedule I). Additional Shares may be purchased
only for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The number of Additional Shares which the
Underwriters elect to purchase upon exercise of the over-allotment option shall
be provided by the Company and by each Selling Stockholder who has agreed to
sell Additional Shares in proportion to the respective maximum numbers of
Additional Shares which the Company and each such Selling Stockholder has
agreed to sell. Upon exercise of the over-allotment option, each Underwriter,
severally and not jointly, agrees to purchase from the Company and
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each Selling Stockholder who has agreed to sell Additional Shares the number of
Additional Shares (subject to such adjustments as you may determine in order to
avoid fractional shares) which bears the same proportion to the number of
Additional Shares to be sold by the Company and each Selling Stockholder who
has agreed to sell Additional Shares as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II hereto (or such number of
Firm Shares increased as set forth in Section 12 hereof) bears to the aggregate
number of Firm Shares to be sold by the Company and the Selling Stockholders.
Certificates in transferable form for the Shares (including any
Additional Shares) which each of the Selling Stockholders agrees, severally and
solely with respect to the Shares to be sold by such Selling Stockholder
hereunder, to sell pursuant to this Agreement have been placed in custody with
_______________ (the "Custodian") for delivery under this Agreement pursuant to
a Custody Agreement and Power of Attorney (the "Custody Agreement") executed by
each of the Selling Stockholders appointing ____________ and ____________ as
agents and attorneys-in-fact (the "Attorneys-in-Fact"). Each Selling
Stockholder so agrees that (i) the Shares represented by the certificates held
in custody pursuant to the Custody Agreement are subject to the interests of
the Underwriters, the Company and each other Selling Stockholder, (ii) the
arrangements made by the Selling Stockholders for such custody are, except as
specifically provided in the Custody Agreement, irrevocable, and (iii) the
obligations of the Selling Stockholders hereunder and under the Custody
Agreement shall not be terminated by any act of such Selling Stockholder or by
operation of law, whether by the death or incapacity of any Selling Stockholder
or the occurrence of any other event. If any Selling Stockholder shall die or
be incapacitated or if any other event shall occur before the delivery of the
Shares hereunder, certificates for the Shares of such Selling Stockholder shall
be delivered to the Underwriters by the Attorneys-in-Fact in accordance with
the terms and conditions of this Agreement and the Custody Agreement as if such
death or incapacity or other event had not occurred, regardless of whether or
not the Attorneys-in-Fact or any Underwriter shall have received notice of such
death, incapacity or other event. Each Attorney-in-Fact is authorized, on
behalf of each of the Selling Stockholders, to execute this Agreement and any
other documents necessary or desirable in connection with the sale of the
Shares to be sold hereunder by such Selling Stockholder, to make delivery of
the certificates for such Shares, to receive the proceeds of the sale of such
Shares, to give receipts for such proceeds, to pay therefrom any expenses to be
borne by such Selling Stockholder in connection with the sale and public
offering of such Shares, to distribute the balance thereof to such Selling
Stockholder, and to take such other action as may be necessary or desirable in
connection with the transactions contemplated by this
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Agreement. Each Attorney-in-Fact agrees to perform his duties under the
Custody Agreement.
3. Terms of Public Offering. The Sellers have 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.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the offices of
Wildman, Harrold, Xxxxx & Xxxxx, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX
00000-0000, at 9:00 A.M., Chicago time, on January ___, 1996 (the "Closing
Date"). The place of closing for the Firm Shares and the Closing Date may be
varied by agreement among you, the Company and the Attorneys-in-Fact.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the aforementioned office
of Wildman, Harrold, Xxxxx & Xxxxx at such time on such date (the "Option
Closing Date"), which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date nor earlier than two nor later than ten
business days after the giving of the notice hereinafter referred to, as shall
be specified in a written notice from you on behalf of the Underwriters to the
Company and the Attorneys-in-Fact of the Underwriters' determination to
purchase a number, specified in such notice, of Additional Shares. The place
of closing for any Additional Shares and the Option Closing Date for such
Shares may be varied by agreement among you, the Company and the
Attorneys-in-Fact.
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 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option 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 in New York City on
the Closing Date or the Option Closing Date, as the case may be, against
payment of the purchase price therefor in immediately available funds.
5. Agreements of the Company. The Company agrees with the several
Underwriters as follows:
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(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement, a post-effective amendment
thereto or any Abbreviated Registration Statement to be declared effective
before the offering of the Shares may commence, the Company will endeavor to
cause the Registration Statement, or such post-effective amendment or
Abbreviated Registration Statement, to become effective as soon as possible and
will advise you promptly and, if requested by you, will confirm such advice in
writing, when the Registration Statement, or such post-effective amendment or
Abbreviated Registration Statement has become effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) 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 purpose; and (iii) within the period of time referred to in paragraph
(f) below, of any change, or any development involving a prospective change, in
the Company's condition (financial or other), business, properties, net worth
or results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material fact
required by the Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading, 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 of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, six signed
copies 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, but without exhibits, as you may request.
(d) The Company will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to
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which you shall reasonably object after being so advised or (ii) so long as, in
the opinion of counsel for the Underwriters, a Prospectus is required to be
delivered in connection with sales by any Underwriter or dealer, file any
information, documents or reports pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act") without delivering a copy of such
information, documents or reports to you, as Representatives of the
Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each form of the Prepricing Prospectus. 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 Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto)
as you may request; provided, however, that in the event any Underwriter is
required to deliver a Prospectus in connection with sales of any of the Shares
at any time nine months or more after the date of the Prospectus, the Company
will expeditiously deliver to such Underwriter, upon request of such
Underwriter but at such Underwriter's expense, as many copies of the Prospectus
(and of any amendment or supplement thereto) as such Underwriter may request.
The Company consents to the use of the Prospectus (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 during
such period of time any event shall occur that, in the opinion of counsel for
the Underwriters and counsel for the Company, 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 the provisions of paragraph (d) above,
file with the Commission an
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appropriate supplement or amendment thereto, and will expeditiously furnish to
the Underwriters and dealers a reasonable number of copies thereof, subject to
the proviso to the first sentence of this Section 5(f). In the event that the
Company and you, as Representatives of the several Underwriters, agree that the
Prospectus should be amended or supplemented, the Company, if requested by you,
will promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with 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 designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; 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 which
would subject it to service of process in suits, other than those arising out
of the offering or sale of the Shares, in any jurisdiction where it is not now
so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering
a twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as
practicable after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section ll(a) of the Act.
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission, and (ii) from time to time
such other information concerning the Company as you may request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 12 hereof or by notice given by you terminating
this Agreement pursuant to Section 12 or Section 13 hereof), or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Company or the Selling Stockholders to comply with
the terms or fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the Representatives for all reasonable out-of-pocket
expenses (including fees and expenses of counsel for the Underwriters) incurred
by you in connection herewith. In no event following termination of this
Agreement for any reason will
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the Underwriters seek to recover lost profits from the Sellers, or any of them.
(k) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder substantially in accordance with the
description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and will
advise you of the time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not,
sell, contract to sell or otherwise dispose of any Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
grant any options, warrants or any other instrument convertible, exchangeable
or granting any right to purchase Common Stock, for a period of 180 days after
the date of the Prospectus, without the prior written consent of Xxxxx Xxxxxx
Inc.; provided, however, that the Company may grant options under its Combined
Incentive and Non-Statutory Stock Option Plan (and may issue shares of Common
Stock, in accordance with the terms of such Plan and applicable option
agreements executed in connection therewith, upon exercise of any such options)
and sell shares of Common Stock under the Employee Stock Purchase Plan, in each
case as described in the Prospectus.
(n) The Company has furnished or will furnish to you "lock-up"
letters as described in Section 6(d) hereof, in the form previously delivered
by you (the "Lock-Up Letter"), signed by each of its current officers and
directors and each of its current stockholders.
(o) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the Common
Stock listed, subject to notice of issuance, on the Nasdaq National Market
concurrently with the effectiveness of the registration statement.
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6. Agreements of the Selling Stockholders. Each of the Selling
Stockholders agrees, severally and solely with respect to such Selling
Stockholder and the Shares to be sold by such Selling Stockholder, with the
several Underwriters as follows:
(a) Such Selling Stockholder will cooperate to the extent
necessary to cause the Registration Statement or any post-effective amendment
thereto or any Abbreviated Registration Statement to become effective at the
earliest possible time.
(b) Such Selling Stockholder will pay all Federal and other
taxes, if any on the transfer or sale of the Shares being sold by the Selling
Stockholder to the Underwriters.
(c) Such Selling Stockholder will do or perform all things
required to be done or performed by the Selling Stockholder prior to the
Closing Date or any Option Closing Date, as the case may be, to satisfy all
conditions precedent to the delivery of the Shares pursuant to this Agreement.
(d) Such Selling Stockholder has executed or will execute a
Lock-Up Letter agreeing not to sell, contract to sell or otherwise dispose of
any Common Stock, except for the sale of Shares to the Underwriters pursuant to
this Agreement, prior to the expiration of 180 days after the date of the
Prospectus, without the prior written consent of Xxxxx Xxxxxx Inc.; provided,
however, that any sale or other disposition to a member of such Selling
Stockholder's immediate family, or to a trust for the benefit of a member of
such Selling Stockholder's immediate family, may be effected without the prior
written consent of Xxxxx Xxxxxx Inc. so long as such Selling Stockholder
delivers to Xxxxx Xxxxxx Inc., no later than three days prior to any such sale
or other disposition (i) written notice describing the terms of such sale or
disposition and (ii) the written agreement of the transferee to be bound by the
terms of the Lock-Up Letter executed by such Selling Stockholder. A Selling
Stockholder's "immediate family" consists of his or her spouse, parents,
children (including adoptive), grandchildren, siblings, mothers and
fathers-in-law, sons- and daughters-in-law and brothers- and sisters-in-law.
(e) Except as stated in this Agreement and in the Prepricing
Prospectus and the Prospectus, such Selling Stockholder will not take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(f) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of
time referred to in Section 5(f) hereof, of (i) any
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change, or any development involving a prospective change, in the Company's
condition (financial or other), business, properties, net worth or results of
operations, or in information contained in the Prospectus, or any amendment or
supplement thereto, relating to the Company, which comes to the attention of
such Selling Stockholder, or (ii) any new information relating to the Company,
or relating to any matter stated in the Prospectus or any amendment or
supplement thereto, which comes to the attention of such Selling Stockholder,
or (iii) any change in information contained in the Prospectus, or any
amendment or supplement thereto, under the heading "Principal and Selling
Stockholders" relating to such Selling Stockholder, any of which suggests that
any statement made in the Registration Statement or the Prospectus (as then
amended or supplemented, if amended or supplemented) is or may be untrue in any
material respect or that the Registration Statement or Prospectus (as then
amended or supplemented, if amended or supplemented) omits or may omit to state
a material fact or a fact necessary to be stated therein in order to make the
statements therein not misleading in any material respect, or of the necessity
to amend or supplement the Prospectus (as then amended or supplemented, if
amended or supplemented) in order to comply with the Act or any other law.
7. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act, except that
this representation and warranty does not apply to statements in or omissions
from the Prepricing Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
or on behalf of any Underwriter through you expressly for use therein. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The Registration Statement in the form in which it became
or becomes effective and also in such form as it may be when any post-effective
amendment thereto or any Abbreviated Registration Statement shall become
effective and the prospectus and any supplement or amendment thereto when filed
with the Commission under Rule 424(b) under the Act, complied or will comply in
all material respects with the provisions of the Act and did not or will not at
any such times 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, except that this representation and warranty
does not apply to statements in or omissions from the registration statement or
the prospectus made in reliance upon and in conformity with information
relating to any
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Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) All the outstanding shares of Common Stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights; the Shares to be issued and
sold by the Company have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor in accordance with the terms hereof,
will be validly issued, fully paid and nonassessable and free of any preemptive
or similar rights; and the capital stock of the Company conforms to the
description thereof in the registration statement and the prospectus.
(d) Each of (i) the Merger Agreement dated October 30, 1996
between the Company and SPR Chicago, Inc. (the "Chicago Merger Agreement") and
(ii) the Merger Agreements dated October 31, 1996 between the Company and each
of SPR-Wisconsin, Inc., Systems and Programming Resources, Inc. ("Systems
Inc."), Consulting Acquisition Corporation ("Data Flex") and SPR Tulsa, Inc.
(the "Second Merger Agreements" and, collectively with the Chicago Merger
Agreement, the "Merger Agreements") has been duly and validly authorized,
executed and delivered by each of the parties thereto and constitutes the valid
and legally binding agreement of each party thereto, enforceable against such
party in accordance with its terms, except to the extent that enforceability
thereof may be limited by applicable bankruptcy, insolvency or other similar
laws relating to or affecting creditors' rights and remedies generally. All
necessary consents, approvals, assignments and other authorizations of (A)
governmental authorities and creditors and (B) material lessors, clients,
vendors and other third parties doing business with any of the parties to the
Merger Agreements that are necessary in order to effect the transactions
contemplated by the Merger Agreements (the "Reorganizations"), and for the
Company to assume and continue the businesses of each of SPR Chicago, Inc.,
SPR-Wisconsin, Inc., SPR Tulsa, Inc., Systems and Programming Resources, Inc.
and Data Flex, Inc. (collectively, the "Constituent Corporations"), without
interruption or delay, have been obtained. The Reorganization contemplated by
the Chicago Merger Agreement was consummated on October 30, 1996 and the
Reorganizations contemplated by the Second Merger Agreements were consummated
on October 31, 1996. Subject to the Company making the payments relating to
the Reorganizations described in the Prospectus under the heading "Certain
Transactions," in the amounts set forth therein, the Company has no liabilities
or obligations of any kind whatsoever to the former stockholders of the
Constituent Corporations in their capacities as former stockholders of such
corporations. Other than as described in the financial statements contained in
the Prospectus, the Company will not incur any material liability for the
payment of any taxes as a result of the Reorganizations.
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(e) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company. The Company
does not own or control, directly or indirectly, any subsidiary (as defined in
the rules and regulations promulgated under the Act).
(f) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the Company or to which
the Company or any of its properties is subject, that are required to be
described in the Registration Statement or the Prospectus but are not described
as required, and there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement that are not described or filed as required by the Act.
(g) The Company is not (i) in violation of its certificate of
incorporation or by-laws, or other organizational documents, (ii) in violation
of any law, ordinance, administrative or governmental rule or regulation
applicable to the Company, or of any decree of any court or governmental agency
or body having jurisdiction over the Company, except any such violation(s)
that, individually or in the aggregate, could not have a material adverse
effect on the condition (financial or other), business, net worth or results of
operations of the Company, or (iii) in default in any material respect in the
performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any material
agreement, indenture, lease or other instrument to which it is a party or by
which the Company or any of its properties may be bound.
(h) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the consummation
by the Company of the transactions contemplated hereby (A) 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 and the Exchange Act and compliance with the
securities or Blue Sky laws of various jurisdictions) or conflicts or will
conflict with or constitutes or will constitute a breach of,
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14
or a default under, the certificate of incorporation or bylaws, or other
organizational documents, of the Company or (B) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Company is a party
or by which its properties may be bound, or (C) violates or will violate any
statute, law, rule, regulation, judgment, injunction, order or decree
applicable to the Company or any of its properties, or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to the terms of any agreement or instrument to
which it is a party or by which it may be bound, or to which any of its
property or assets is subject, except any such violations that, individually or
in the aggregate, could not have a material adverse effect on the condition
(financial or other), business, net worth or results of operations of the
Company.
(i) The accountants, Xxxxxx Xxxxxxxx LLP, who have certified
the financial statements included in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) are independent public
accountants as required by the Act.
(j) The financial statements, together with related schedules
and notes, included in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), present fairly the financial position,
results of operations 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 consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and data
included in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(k) The execution and delivery of, 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 the valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforceability thereof may be limited by
applicable bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights and remedies generally and except to the extent
that rights to indemnity and contribution under this Agreement may be limited
by federal or state securities laws.
(l) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent
- 14 -
15
to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), (i) the Company has not incurred any liability or obligation, direct
or contingent, or entered into any transaction, not in the ordinary course of
business, that in any of such cases is material, individually or in the
aggregate, to the Company, and (ii) there has not been any change in the
capital stock, or material increase in the short-term debt or long-term debt,
of the Company, or any material adverse change, or any development involving or
which may reasonably be expected to involve, a prospective material adverse
change, in the condition (financial or other), business, net worth or results
of operations of the Company.
(m) The Company owns no real property and has good and
marketable title to all personal property described in the Prospectus as being
owned by it, free and clear of all liens, claims, security interests or other
encumbrances, except (i) liens for taxes not yet due and payable, (ii) such as
are described in the Registration Statement and the Prospectus or in a document
filed as an exhibit to the Registration Statement, or (iii) any liens, claims,
security interests or other encumbrances that, individually or in the
aggregate, could not have a material adverse effect on the condition (financial
or other), business, net worth or results of operations of the Company. All of
the property described in the Prospectus as being held under lease by the
Company is held by it under leases that are valid, subsisting and enforceable
against the Company, except to the extent that enforceability thereof may be
limited by applicable bankruptcy, insolvency or other similar laws relating to
or affecting creditors' rights and remedies generally, and, to the best
knowledge of the Company, are valid, subsisting and enforceable against the
other parties thereto.
(n) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the Act.
(o) The Company has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits") as are
necessary to own its respective properties and to conduct its business in the
manner described in the Prospectus, subject to such qualifications as may be
set forth in the Prospectus and except such permits the lack of which,
individually or in the aggregate, could not have a material adverse effect on
the condition (financial or other), business, net worth or results of
operations of the Company; the Company has fulfilled and performed all its
material obligations with respect to such permits and no event has
- 15 -
16
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of the
rights of the holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as described
in the Prospectus, none of such permits contains any restriction that is
materially burdensome to the Company.
(p) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(q) To the Company's knowledge, neither the Company nor any of
its employees or agents has made any payment of funds of the Company or
received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(r) The Company has filed all tax returns required to be filed,
which returns are complete and correct in all material respects, and the
Company is not in default in the payment of any taxes which were payable
pursuant to such returns or any assessments with respect thereto. Each of SPR
Chicago, Inc., SPR-Wisconsin, Inc., SPR Tulsa, Inc., Systems Inc. and Data Flex
validly elected to be an S corporation under federal income tax law and since
January 14, 1994, with respect to SPR Chicago, Inc., [OCTOBER __, 1994], with
respect to SPR-Wisconsin, Inc., September 15, 1994, with respect to SPR Tulsa,
Inc., [___________, 199_], with respect to Systems Inc., and October 29, 1990,
with respect to Data Flex, each such S corporation election has continued in
full force and effect without interruption through the date hereof. For
purposes of this Section 7(r), "S corporation" means a corporation with respect
to which a valid election has been made under Section 1362 of the Internal
Revenue Code of 1986, as amended, and any corresponding provision of state,
local or foreign law.
(s) No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of the
Company (i) because of the filing of the registration statement or consummation
of the transactions contemplated by this Agreement or (ii) subsequent to the
consummation of the transactions contemplated by this Agreement,
- 16 -
17
except for the rights to registration described in the Prospectus under the
heading "Description of Capital Stock--Registration Rights."
(t) The Company owns or possesses rights to use all patents,
trademarks, trademark registrations, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights (i)
described in the Prospectus as being owned or possessed by it or (ii) necessary
for the conduct of its business, except any of such rights the lack of which,
individually or in the aggregate, could not have a material adverse effect on
the condition (financial or other), business, net worth or results of
operations of the Company, and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the Company with
respect to the foregoing.
(u) The Company is not now, and after sale of the Shares to be
sold by it hereunder and application of the net proceeds from such sale as
described in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(v) The Company has complied with all provisions of Section 1
of Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba.
8. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder severally represents and warrants to each Underwriter, and
in each case solely with respect to such Selling Stockholder and the Shares to
be sold by such Selling Stockholder hereunder, that:
(a) Such Selling Stockholder now has, and on the Closing Date
and any Option Closing Date will have, valid and marketable title to the Shares
to be sold by such Selling Stockholder, free and clear of any lien, claim,
community property right, voting trust agreement, security interest or other
encumbrance, including, without limitation, any restriction on transfer.
(b) Such Selling Stockholder now has, and on the Closing Date
and any Option Closing Date will have, full legal right, power and
authorization, and any approval required by law, to sell, assign transfer and
deliver such Shares in the manner provided in this Agreement, and upon delivery
of and payment for such Shares hereunder, the several Underwriters will acquire
valid and marketable title to such Shares free and clear of any lien, claim,
community property right, voting trust agreement, security interest, or other
encumbrance.
- 17 -
18
(c) This Agreement and the Custody Agreement have been duly
authorized, executed and delivered by or on behalf of such Selling Stockholder
and are the valid and binding agreements of such Selling Stockholder
enforceable against such Selling Stockholder in accordance with their terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or other similar laws relating to or affecting
creditors' rights and remedies generally and except to the extent that rights
to indemnity and contribution under this Agreement may be limited by federal or
state securities laws.
(d) Neither the execution and delivery of this Agreement or the
Custody Agreement by or on behalf of such Selling Stockholder nor the
consummation of the transactions herein or therein contemplated by or on behalf
of such Selling Stockholder (i) requires any consent, approval, authorization
or order of, or filing or registration with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except
such as may be required under the Act or such as may be required under state
securities or Blue Sky laws governing the purchase and distribution of the
Shares) or (ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or default under, or violates or will violate (A) any
agreement, indenture or other instrument to which such Selling Stockholder is a
party, by which such Selling Stockholder is or may be bound or to which any of
such Selling Stockholder's property or assets is subject, or (B) any statute,
law, rule, regulation, ruling, judgment, injunction, order or decree applicable
to such Selling Stockholder or to any property or assets of such Selling
Stockholder, except any such statutes, laws, rules, regulations, rulings,
judgments, injunctions, orders or decrees the violation of which, individually
or in the aggregate, could not (1) have a material adverse effect on such
Selling Stockholder's ability to consummate the transactions contemplated in
this Agreement or in the Custody Agreement or (2) result in the breach by such
Selling Stockholder of any representation or warranty contained herein or
therein.
(e) The Registration Statement and the Prospectus, insofar as
they relate to such Selling Stockholder, do not and will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(f) Although such Selling Stockholder has not undertaken (and
has no duty to undertake) to determine independently, and does not assume any
responsibility for information contained in the Registration Statement or the
Prospectus (except for information contained therein under the heading
"Principal and Selling Stockholders" relating to such Selling Stockholder),
nothing has
- 18 -
19
come to the attention of such Selling Stockholder that has caused such Selling
Stockholder to believe, and such Selling Stockholder does not have any
knowledge or any reason to believe, that the Registration Statement or the
Prospectus (or any amendment or supplement thereto) contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(g) The representations and warranties of such Selling
Stockholder in the Custody Agreement are, and on the Closing Date and any
Option Closing Date will be, true and correct in all material respects.
(h) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares, except for the lock-up
arrangements described in the Prospectus.
9. Indemnification and Contribution.
(a) The Company and each Selling Stockholder, jointly and
severally, agree to indemnify and hold harmless each of you and each other
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and reasonable fees and
disbursements of counsel) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus or in the Registration Statement 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 not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Company by
or on behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the regulations thereunder, and the untrue
- 19 -
20
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Prepricing Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company or any Selling Stockholder may otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company or any Selling Stockholder, such
Underwriter or such controlling person shall promptly notify the parties
against whom indemnification is being sought (the "indemnifying parties"), and
such indemnifying parties shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. Such Underwriter
or any such controlling person shall have the right to employ separate counsel
in any such action, suit or proceeding and to 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 parties
have agreed in writing to pay such fees and expenses, (ii) the indemnifying
parties have failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
indemnifying parties and such Underwriter or such controlling person shall have
been advised in writing by its counsel 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, suit or
proceeding on behalf of such Underwriter or such controlling person). It is
understood, however, that the indemnifying parties shall, in connection with
any one such action, suit or proceeding, or separate but substantially similar
or related actions, suits or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such Underwriters and controlling persons,
which firm shall be designated in writing by Xxxxx Xxxxxx Inc., and that all
such reasonable fees and expenses shall be reimbursed as they are incurred.
The indemnifying parties shall not be liable for any settlement of any such
action, suit or proceeding effected without their written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the indemnifying parties
agree to indemnify and hold harmless any Underwriter, to the extent
- 20 -
21
provided in the preceding paragraph, and any such controlling person from and
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(c) The aggregate liability of each Selling Stockholder under this
Agreement, including with respect to the indemnification and contribution
provisions contained in Section 9, shall be limited to the aggregate proceeds
received by such Selling Stockholder from the Underwriters for the sale of the
Shares sold by such Selling Stockholder hereunder.
(d) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, each Selling Stockholder, and any person who controls
the Company or any Selling Stockholder within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Selling Stockholders to each Underwriter,
but only with respect to information relating to such Underwriter furnished in
writing by or on behalf of such Underwriter through you expressly for use in
the Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, any
Selling Stockholder, or any such controlling person based on the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph (d), such Underwriter shall have the
rights and duties given to the Company by paragraph (b) above (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 officer,
the Selling Stockholder, and any such controlling person shall have the rights
and duties given to the Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which any Underwriter
may otherwise have.
(e) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a) or (d) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, 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 losses, claims, damages, liabilities or expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Selling Stockholders on the one hand and the Underwriters
on the other hand from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is
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22
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters, 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, the Selling Stockholders or the Underwriters from the offering of the
Shares shall include the net proceeds (before deducting expenses) received by
the Company and the Selling Stockholders, 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 and the Selling Stockholders 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 or the Selling Stockholders 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.
(f) The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 9 were 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 account of the equitable considerations referred
to in paragraph (e) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses referred
to in paragraph (e) above 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 any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to
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23
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 9 are several in proportion
to the respective numbers of Firm Shares set forth opposite their names in
Schedule II hereto (or such numbers of Firm Shares increased as set forth in
Section 12 hereof) and not joint.
(g) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(h) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Stockholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or the Selling Stockholders 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
9.
10. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective amendment
thereto (or an Abbreviated Registration Statement) to be declared effective
before the offering of the Shares may commence, the registration statement or
such post-effective amendment or Abbreviated Registration Statement shall have
become effective not later than 5:30 P.M., New York City time, on the date
hereof, or at such later date and time as shall be
- 23 -
24
consented to in writing by you; all filings, if any, required by Rules 424 and
430A under the Act shall have been timely made; no stop order suspending the
effectiveness of the registration statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge of
the Company or any Underwriter, threatened by the Commission, and any request
of the Commission for additional information (to be included in the
registration statement or the prospectus or otherwise) shall have been complied
with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company not
contemplated by the Prospectus, which in your reasonable opinion, as
Representatives of the several Underwriters, would materially, adversely affect
the market for the Shares, or (ii) any event or development relating to or
involving the Company or any officer or director of the Company or any Selling
Stockholder which makes any statement made in the Prospectus untrue or which,
in the opinion of the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to be
stated therein or necessary in order to make the statements therein not
misleading, if amending or supplementing the Prospectus to reflect such event
or development, in your reasonable opinion, as Representatives of the several
Underwriters, would materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, an opinion of
Wildman, Harrold, Xxxxx & Xxxxx, counsel for the Company and the Selling
Stockholders, dated the Closing Date and addressed to you, as Representatives
of the several Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement 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
so to register or qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company. The Company does not own or control, directly or
indirectly, any subsidiary (as defined in Rule 405 promulgated under the Act).
- 24 -
25
(ii) The authorized and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the Prospectus;
and the authorized capital stock of the Company conforms in all material
respects as to legal matters to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock";
(iii) All the shares of capital stock of the Company
outstanding prior to the issuance of the Shares to be issued and sold by the
Company hereunder, have been duly authorized and validly issued, and are
fully paid and nonassessable;
(iv) 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 payment therefor in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable and free of
any preemptive, or to the best knowledge of such counsel, similar rights that
entitle or will entitle any person to acquire any Shares upon the issuance
thereof by the Company;
(v) The form of certificates for the Shares conforms to
the requirements of the Delaware General Corporation Law;
(vi) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the best
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose are
pending before or contemplated by the Commission; and any required filing of
the Prospectus pursuant to Rule 424(b) has been made in accordance with Rule
424(b);
(vii) The Company has corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Shares to be
sold by it to the Underwriters as provided herein, and this Agreement has been
duly authorized, executed and delivered by the Company and is a valid, legal
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement of rights to indemnity and
contribution hereunder may be limited by Federal or state securities laws or by
general equitable principles and subject to the qualification that the
enforceability of the Company's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally and by general
equitable principles;
(viii) The Company is not in violation of its
certificate of incorporation or bylaws, or other organizational documents, or
to the best knowledge of such counsel, is in default
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26
in the performance of any material obligation, agreement or condition contained
in any bond, debenture, note or other evidence of indebtedness, except as may
be disclosed in the Prospectus;
(ix) None of the offer, sale or delivery of the Shares by
the Company, the execution, delivery or performance of this Agreement,
compliance by the Company with the provisions hereof, or consummation by the
Company of the transactions contemplated hereby (A) conflicts with or
constitutes a breach of, or a default under, the certificate of incorporation
or bylaws, or other organizational documents, of the Company, or any agreement,
indenture, lease or other instrument to which the Company is a party or by
which it or any of its properties is bound that is an exhibit to the
Registration Statement, or that is material and that is known to such counsel,
(B) will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under any agreement,
indenture, lease or other instrument to which the Company is a party or by
which it or any of its properties is bound that is an exhibit to the
Registration Statement, or that is material and that is known to such counsel,
or (C) will result in any violation of any existing law, regulation, ruling
(assuming compliance with all applicable state securities and Blue Sky laws),
judgment, injunction, order or decree known to such counsel, applicable to the
Company or any of its properties, except for any violation which, individually
or in the aggregate, could not have a material adverse effect on the condition
(financial or other), business, net worth or results of operations of the
Company;
(x) No 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 is required on the part
of the Company (except as have been obtained under the Act and the Exchange Act
or such as may be required under state securities or Blue Sky laws governing
the purchase and distribution of the Shares) for the valid issuance and sale of
the Shares by the Company to the Underwriters as contemplated by this
Agreement;
(xi) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements and the
notes thereto and the schedules and other financial data included therein, as
to which such counsel need not express any opinion) comply as to form in all
material respects with the requirements of the Act;
(xii) To the best knowledge of such counsel, (A)
other than as described or contemplated in the Prospectus (or any supplement
thereto), there are no legal or governmental proceedings pending or threatened
against the Company, or to which the Company or any of its property, is
subject, which are required to be
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27
described in the Registration Statement or Prospectus (or any amendment or
supplement thereto) and (B) there are no agreements, contracts, indentures,
leases or other instruments, that are required to be described in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) or to be filed as an exhibit to the Registration Statement that are
not described or filed as required, as the case may be;
(xiii) To the best knowledge of such counsel, the Company
is not in violation of any law, ordinance, administrative or governmental rule
or regulation applicable to the Company or of any decree of any court or
governmental agency or body having jurisdiction over the Company, except for
any violation which, individually or in the aggregate, could not have a
material adverse effect on the condition (financial or other), business, net
worth or results of operations of the Company;
(xiv) The statements in the Registration Statement and
Prospectus, insofar as they are descriptions of contracts, agreements or other
legal documents, or refer to statements of law or legal conclusions, are
accurate and present fairly the information required to be shown;
(xv) This Agreement and the Custody Agreement have each
been duly executed and delivered by or on behalf of each of the Selling
Stockholders and are valid and binding agreements of each Selling Stockholder
enforceable against each Selling Stockholder in accordance with their terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or other similar laws relating to or affecting
creditors' rights and remedies generally and except as enforcement of rights to
indemnity and contribution hereunder may be limited by Federal or state
securities laws or by general equitable principles;
(xvi) Each Selling Stockholder has full legal right,
power and authorization, and any approval required by law, to sell, assign,
transfer and deliver valid and clear title to the Shares which such Selling
Stockholder has agreed to sell pursuant to this Agreement;
(xvii) The execution and delivery of this Agreement
and the Custody Agreement by the Selling Stockholders and the consummation of
the transactions contemplated hereby and thereby will not conflict with,
violate, result in a breach of or constitute a default under the terms or
provisions of any agreement, indenture, mortgage or other instrument known to
such counsel to which any Selling Stockholder is a party or by which any of
them or any of their assets or property is bound, or any court order or decree
known to such counsel, or any law, rule, or regulation applicable to
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28
any Selling Stockholder or to any of the property or assets of any Selling
Stockholder;
(xviii) Assuming the Underwriters purchase such
Shares for value, in good faith and without notice of any adverse claim, upon
delivery of the Shares to be sold by the Selling Stockholders pursuant to this
Agreement against payment therefor as contemplated herein the Underwriters will
acquire valid title to such Shares free and clear of any lien, claim, community
property right, voting trust agreement, security interest, or other
encumbrance, restriction on transfer or other defect in title; and
(xix) Each of SPR Chicago, Inc., SPR-Wisconsin,
Inc., SPR Tulsa, Inc., Systems Inc. and Data Flex validly elected to be an S
corporation under Section 1362 of the Internal Revenue Code of 1986, as
amended, and any corresponding provision of state, local or foreign law and
since January 14, 1994, with respect to SPR Chicago, Inc., [OCTOBER __, 1994],
with respect to SPR-Wisconsin, Inc., September 15, 1994, with respect to SPR
Tulsa, Inc., [___________, 199_], with respect to Systems Inc., and October 29,
1990, with respect to Data Flex, each such S corporation election has continued
in full force and effect without interruption through the date hereof.
(xx) The Reorganizations have been consummated and the
Company possesses all necessary consents, approvals, assignments and other
authorizations of (i) any governmental authorities and creditors with
jurisdiction over any of the Constituent Corporations or the Company and (ii)
material lessors, clients, vendors and other third parties doing business with
any of the parties to the Merger Agreements that were and are necessary for the
Company to continue the businesses of each of the Constituent Corporations,
without interruption or delay. Other than as described in the financial
statements contained in the Prospectus, the Company will not incur any material
liability for the payment of any taxes as a result of the Reorganizations.
(xxi) Such counsel shall further state that, based
upon such counsel's participation in the preparation of the Registration
Statement and the Prospectus, and any amendment or supplement thereto, and upon
such counsel's review and discussion of the contents thereof, but without
independent check or verification or the accuracy or completeness thereof
except as specified, nothing has come to the attention of such counsel that has
caused them to believe that the Registration Statement at the time the
Registration Statement became effective, or the Prospectus, as of its date and
as of the Closing Date or the Option Closing Date, as the case may be (except
for financial statements and the notes thereto and the schedules and other
financial data included therein), contained an untrue statement of a material
fact or omitted to state a material
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29
fact required to be stated therein or necessary to make the statements therein
not misleading or that any amendment or supplement to the Prospectus (except
for financial statements and the notes thereto and the schedules and other
financial data included therein), as of its respective date, and as of the
Closing Date or the Option Closing Date, as the case may be, contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering their opinion as aforesaid, counsel may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
them or the Company as to laws of any jurisdiction other than the United States
or the States of Illinois or Delaware, provided that (1) each such local
counsel is acceptable to the Representatives, (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion is
delivered to the Representatives and is, in form and substance, satisfactory to
them and their counsel, and (3) counsel shall state in their opinion that they
believe that they and the Underwriters are justified in relying thereon.
(d) You shall have received on the Closing Date an opinion of
Xxxx, Gerber & Xxxxxxxxx, counsel for the Underwriters, dated the Closing Date
and addressed to you, as Representatives of the several Underwriters, with
respect to the matters referred to in clauses (v), (vii), (viii), (xii) and
(xx) of the foregoing paragraph (c) and such other related matters as you may
request.
(e) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date, from Xxxxxx Xxxxxxxx LLP, independent certified public
accountants, substantially in the forms heretofore approved by you. If (i) the
letter from Xxxxxx Xxxxxxxx LLP dated the date hereof discloses any material
adverse decreases or increases, as the case may be, in the specified items that
are not disclosed in the Prospectus, or (ii) the letter from Xxxxxx Xxxxxxxx
LLP dated the Closing Date discloses any material adverse decreases or
increases, as the case may be, in the specified items from its letter dated the
date hereof or that are not disclosed in the Prospectus, then the Company shall
explain and substantiate such decreases or increases to the reasonable
satisfaction of the Underwriters. If, in the reasonable judgment of the
Underwriters, such increases or decreases make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares on the terms
and in the manner contemplated by the Prospectus, the Representatives may
terminate this Agreement.
(f) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
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30
that purpose shall have been taken or, to the knowledge of the Company, shall
be contemplated by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other
than in the ordinary course of business) from that set forth or contemplated in
the Registration Statement or the Prospectus (or any amendment or Supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
properties, net worth or results of operations of the Company; (iv) the Company
shall not have any liabilities or obligations, direct or contingent (whether or
not in the ordinary course of business), that are material to the Company,
other than those reflected in the Registration Statement or the Prospectus (or
any amendment or supplement thereto); and (v) all the representations and
warranties of the Company contained in this Agreement shall be true and correct
on and as of the date hereof and on and as of the Closing Date as if made on
and as of the Closing Date, 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 10(f) and in Section 10(g)
hereof.
(g) The Reorganizations shall have been consummated and the
Company shall possesses all necessary consents, approvals, assignments and
other authorizations of (i) any governmental authorities and creditors with
jurisdiction over any of the Constituent Corporations or the Company and (ii)
material lessors, clients, vendors and other third parties doing business with
any of the parties to the Merger Agreements that were and are necessary for the
Reorganizations to become effective and for the Company to continue the
businesses of each of the Constituent Corporations, without interruption or
delay.
(h) The Company shall not have failed at or prior to the
Closing Date to have performed or complied, in all material respects, with any
of its agreements herein contained and required to be performed or complied
with by it hereunder at or prior to the Closing Date.
(i) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing Date
and signed by or on behalf of
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31
the Selling Stockholders to the effect set forth in this Section 10(i) and in
Section 10(j) hereof.
(j) The Selling Stockholders shall not have failed at or prior
to the Closing Date to have performed or complied, in all material respects,
with any of their agreements herein contained and required to be performed or
complied with by them hereunder at or prior to the Closing Date.
(k) The Shares shall have been listed or approved for listing
upon notice of issuance on the Nasdaq National Market.
(l) You shall have received a Lock-Up Letter executed by each
of the current officers and directors of the Company and by each of its current
stockholders.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to you and your counsel.
Any certificate or document signed by any officer of the Company or
any Attorney-in-Fact or any Selling Stockholder and delivered to you, as
Representatives of the Underwriters, or to counsel for the Underwriters, shall
be deemed a representation and warranty by the Company, the Selling
Stockholders or the particular Selling Stockholder, as the case may be, to each
Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option
Closing Date of the conditions set forth in this Section 10, except that, if
any Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (i) shall be dated
the Option Closing Date in question and the opinions called for by paragraphs
(c), (d) and (e) shall be revised to reflect the sale of Additional Shares.
11. Expenses. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the registration statement, each
Prepricing Prospectus, the Prospectus, and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the offering
and sale of the Shares, subject to the nine month limitation set forth
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32
in the first sentence of Section 5(f) hereof; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp taxes in connection with the original issuance and sale of the
Shares; (iv) the printing (or reproduction) and delivery of this Agreement, the
preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Shares; (v) the registration of the Shares under the Exchange Act and
the listing of the Shares on the Nasdaq National Market; (vi) the registration
or qualification of the Shares for offer and sale under the securities or Blue
Sky laws of the several states as provided in Section 5(g) hereof (including
the reasonable fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and delivery of the
preliminary and supplemental Blue Sky Memoranda and such registration and
qualification); (vii) the filing fees and the fees and expenses of counsel for
the Underwriters in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; (viii) the transportation and
other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Shares; and (ix)
the fees and expenses of the Company's accountants and the fees and expenses of
counsel (including local and special counsel) for the Company and the Selling
Stockholders. Except as otherwise provided elsewhere in this Agreement, the
Underwriters will pay their own costs and expenses in connection with the
offering contemplated hereby, including fees and disbursements of their
counsel, travel and entertainment expenses, stock transfer taxes payable on
resale of any of the Shares by them and any advertising expenses connected with
any offers they may make, including, but not limited to, the "tombstone"
advertisement and expenses associated with the preparation of prospectus
memorabilia, if any.
12. Effective Date of Agreement. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto;
provided, however, that if, at the time this Agreement is executed and
delivered, it is necessary for the registration statement or a post-effective
amendment thereto or an Abbreviated Registration Statement to be declared
effective before the offering of the Shares may commence, then the
effectiveness of this Agreement shall be delayed until notification of the
effectiveness of the registration statement or such post-effective amendment or
Abbreviated Registration Statement has been released by the Commission. Until
such time as this Agreement shall have become effective, it may be terminated
by the Company, by notifying you, or by you, as Representatives of the several
Underwriters, by notifying the Company and the Selling Stockholders.
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33
If any one or more of the Underwriters shall fail or refuse to
purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the Underwriters
are obligated to purchase on the Closing Date, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm
Shares set forth opposite its name in Schedule II 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 accordance with
Section 20 of the Master Agreement Among Underwriters of Xxxxx Xxxxxx Inc., to
purchase the Shares which such defaulting Underwriter or Underwriters are
obligated, but fail or refuse, to purchase. If any one or more of the
Underwriters shall fail or refuse to purchase Shares which it or they are
obligated to purchase on the Closing Date and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares which the Underwriters are obligated to purchase on
the Closing Date and arrangements satisfactory to you and the Company for the
purchase of such Shares by one or more non- defaulting Underwriters or other
party or parties approved by you and the Company are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter, the Company or any Selling Stockholder. In
any such case which 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 days, in order that the required changes, if any,
in the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any such
default of any such Underwriter under this Agreement. The term "Underwriter"
as used in this Agreement includes, for all purposes of this Agreement, any
party not listed in Schedule II hereto who, with your approval and the approval
of the Company, purchases Shares which a defaulting Underwriter is obligated,
but fails or refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. 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 or any Selling Stockholder, by notice to the
Company, if prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to the Additional Shares), as the case
may be, (i) trading in securities generally on the New York Stock
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34
Exchange, American Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited, (ii) a general moratorium on commercial
banking activities in New York or Illinois shall have been declared by either
federal or state authorities, or (iii) 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, the effect of
which on the financial markets of the United States is such as to make it, in
your reasonable judgment, impracticable or inadvisable to commence or continue
the offering of the Shares at the offering price to the public set forth on the
cover page of the Prospectus or to enforce contracts for the resale of the
Shares by the Underwriters. Notice of such termination may be given to the
Company by telegram, telecopy or telephone and shall be subsequently confirmed
by letter.
14. Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside cover page, and the statements in the first and third paragraphs under
the caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Sections 7(b) and 9 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5, 12
and 13 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of
the Company at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, President; or (ii) if to the Selling
Stockholders, at ____________, Attention: [INSERT NAME AND TITLE], or (iii) if
to you, as Representatives of the several Underwriters, care of Xxxxx Xxxxxx
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager,
Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 9 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement. Neither
the term "successor" nor the term "successors and assigns" as used in this
Agreement shall include a purchaser from any Underwriter of any of the Shares
in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
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35
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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36
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
SPR, INC.
By:__________________________________
Xxxxxx X. Xxxxxxxx,
President
Each of the Selling Stockholders
named in Schedule I hereto
By:__________________________________
[ATTORNEY-IN-FACT]
By:_________________________________
[ATTORNEY-IN-FACT]
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
XXXXX XXXXXX INC.
XXXXXX X. XXXXX & CO. INCORPORATED
As Representatives of the Several Underwriters
By: XXXXX XXXXXX INC.
By:____________________________
[MANAGING DIRECTOR]
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SCHEDULE I
SPR INC.
Part A - Firm Shares
Number of
Selling Stockholders Firm Shares
-------------------- -----------
Xxxx Xxxxxx 35,000
Xxxx Xxxxxxxx 412,399
Xxxxx Xxxxxxxx 93,500
Xxxxxxx Xxxxxxxx 93,500
Xxxxxx Xxxxx Youny 93,500
Xxxxxx Xxxxxxxx 93,500
Xxxx Xxxxxxxx 93,500
Xxxxxxx Xxxxxxx 46,750
Xxxxxx Xxxxxxxx 71,685
-----------------
Total........ 1,033,334
-----------------
Part B - Additional Shares
--------------------------
Selling Stockholders Number of
-------------------- Additional Shares
-----------------
Xxxx Xxxxxx
Xxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxx Youny
Xxxxxx Xxxxxxxx
Xxxx Xxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxx
-----------------
Total........ 405,000
-----------------
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SCHEDULE II
SPR INC.
Number of Number of
Underwriter Firm Shares Firm Shares
----------- ----------- -----------
Xxxxx Xxxxxx Inc. ......
Xxxxxx X. Xxxxx &
Co. Incorporated ....
Total.....
-----------
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