1
EXHIBIT 1
KLN&F Draft 8/12/97
3,600,000 SHARES
XXXXXX INTERNATIONAL INC.
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
[_______], 1997
XXXXXX BROTHERS INC.
X.X. XXXXXXXX & CO.
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx International Inc., an Ohio corporation (the
"Company"), and certain shareholders of the Company named in Schedule 2 hereto
(the "Selling Shareholders"), propose to sell an aggregate of 3,600,000 shares
(the "Firm Stock") of the Company's common stock, no par value per share (the
"Common Stock"). Of the 3,600,000 shares of the Firm Stock, 3,000,000 are being
sold by the Company and 600,000 by the Selling Shareholders. In addition, the
Company proposes to grant to the Underwriters named in Schedule 1 hereto (the
"Underwriters") an option to purchase up to an additional 540,000 shares of the
Common Stock on the terms and for the purposes set forth in Section 5 (the
"Option Stock"). The Firm Stock and the Option Stock, if purchased, are
hereinafter collectively called the "Stock." This is to confirm the agreement
concerning the purchase of the Stock from the Company by the Underwriters.
1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 (No.
333-30581), including Amendments No. 1, [____] thereto, with respect to
the Stock has (i) been prepared by the Company in conformity with the
requirements of the Securities Act of 1933 (the "Securities Act") and
the rules and regulations (the "Rules and
2
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act, and (iii) become effective under the Securities Act; a
final prospectus is now proposed to be filed with the Commission.
Copies of such registration statement, Amendments No. 1, [___] thereto
and the form of such final prospectus have been delivered by the
Company to you as the representatives (the "Representatives") of the
Underwriters. As used in this Agreement, "Effective Time" means the
date and the time as of which such registration statement was declared
effective by the Commission; "Effective Date" means the date of the
Effective Time; "Preliminary Prospectus" means each prospectus included
in such registration statement or amendments thereof before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration statement, as amended at the
Effective Time, including all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations in accordance with Section 6(a) hereof and deemed
to be a part of the Registration Statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations;
and "Prospectus" means such final prospectus, as first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Rules
and Regulations with any changes thereto made by the Company with the
consent of the Representatives. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus. "Rule
462(b) Registration Statement" means a registration statement filed
pursuant to Rule 462(b) of the Rules and Regulations relating to the
offering covered by the Registration Statement.
(b) The Registration Statement conforms, and any Rule
462(b) Registration Statement and the Prospectus and any post-effective
amendments or supplements to the Registration Statement or the
Prospectus when they become effective or are filed with the Commission,
as the case may be, conform in all respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not,
as of the applicable effective date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing date (as to
the Prospectus and any amendment or supplement thereto) 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 (as to the Prospectus, in light of the circumstances under
which they were made) not misleading; provided that no representation
or warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein.
(c) The Company and each of its subsidiaries (as
defined in Section 17) have been duly incorporated and are validly
existing as corporations in good standing (or the local law equivalent)
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing (or the local
law equivalent) as foreign corporations in each jurisdiction in which
their
- 2 -
3
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries (taken as a
whole), and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are
engaged. The only subsidiaries of the Company are the subsidiaries
listed on Exhibit 21 to the Registration Statement.
(d) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and conform to the description
thereof contained in the Prospectus; and all of the issued shares of
capital stock of each subsidiary of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(e) The shares of the Stock to be issued and sold by
the Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued, fully paid and
non-assessable; and the Stock will conform to the description thereof
contained in the Prospectus.
(f) This Agreement has been duly authorized, executed
and delivered by the Company.
(g) The execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby and the amendment of the Company's charter and the
transactions each of which are described in the Registration Statement
and the Prospectus under the caption "Termination of S Corporation
Status" (hereinafter, the "Reorganization") will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter, code
of regulations or by-laws of the Company or any of its subsidiaries or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets; and except
for the registration of the Stock under the Securities Act and the
Rules and Regulations and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Exchange Act of 1934 (the "Exchange Act") and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or
- 3 -
4
body is required for the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby and the Reorganization, other than such actions as
are contemplated in the Prospectus or such actions as have already been
taken.
(h) There are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(i) Except as described in the Registration
Statement, (i) the Company has not sold or issued any shares of Common
Stock during the six-month period preceding the date of the Prospectus,
including any sales pursuant to Rule 144A under, or Regulations D or S
of, the Securities Act and (ii) there is no commitment, plan or
arrangement to issue, and no outstanding option, warrant or other right
calling for the issuance of, any share of capital stock of the Company
or of any subsidiary or any security or other instrument that by its
terms is convertible into exercisable for, or exchangeable for capital
stock of the Company.
(j) Neither the Company nor any of its subsidiaries
has sustained, since the date of the latest audited financial
statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus nor has the Company
incurred or undertaken any liability or obligation, direct or
contingent, that are material to the Company except for liabilities or
obligations (i) incurred or undertaken in the ordinary course of
business or (ii) described in the Registration Statement, and, since
such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
(taken as a whole), otherwise than as set forth or contemplated in the
Prospectus.
(k) The financial statements (including the related
notes and supporting schedules) filed as part of the Registration
Statement or included in the Prospectus present fairly the financial
condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved. The pro forma financial statements and other pro forma
financial information (including the notes thereto) included in the
Registration Statement and the Prospectus (i) present fairly
- 4 -
5
the information shown therein, (ii) have been prepared in accordance
with the applicable requirements of Rule 11-02 of the Rules and
Regulations, (iii) have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and (iv) have been properly compiled on the basis described
therein and the assumptions used in the preparation of the pro forma
financial statements and other pro forma information (including the
notes thereto) and included in the Registration Statement and the
Prospectus are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
(l) Coopers & Xxxxxxx L.L.P., who have certified
certain financial statements of the Company, whose report appears in
the Prospectus and who have delivered the initial letter referred to in
Section 9(g) hereof, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(m) The Company and each of its subsidiaries do not
own any real property. The Company and each of its subsidiaries have
good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the Company
and its subsidiaries; and all real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries.
(n) The Company and each of its subsidiaries carry,
or are covered by, insurance in such amounts and covering such risks as
is adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for companies
engaged in similar businesses in similar industries.
(o) The Company and each of its subsidiaries own or
possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and licenses
necessary for the conduct of their respective businesses. The Company
has no reason to believe that the conduct of its business will conflict
with, and has not received any notice of any claim of conflict with,
any such rights of others, nor, to the best of the Company's knowledge
is there an infringement by others of such rights of the Company which
would result in a material adverse effect on the stockholders' equity,
assets, liabilities, business, results of operations, condition
(financial or otherwise), cash flows, affairs or prospects of the
Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect").
(p) There are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or
of which any property or
- 5 -
6
assets of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its subsidiaries,
might have a Material Adverse Effect; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(q) There are no contracts or other documents which
are required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to the Registration Statement.
(r) No relationship, direct or indirect, exists
between or among the Company on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company on the
other hand, which is required to be described in the Prospectus which
is not so described.
(s) No labor disturbance by the employees of the
Company exists or, to the knowledge of the Company, is imminent which
might be expected to have a Material Adverse Effect.
(t) The Company is in compliance in all material
respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which the Company would
have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and
each "pension plan" for which the Company would have any liability that
is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification.
(u) The Company has filed all federal, state, local
and foreign income and franchise tax returns required to be filed
through the date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company or any of its
subsidiaries which has had (nor does the Company have any knowledge of
any tax deficiency which, if determined adversely to the Company or any
of its subsidiaries, might have) a Material Adverse Effect.
(v) Since the date as of which information is given
in the Prospectus through the date hereof, and except as may otherwise
be disclosed in the Prospectus, the Company has not (i) issued or
granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which were
incurred in the ordinary course of business, (iii) entered into any
transaction not in
- 6 -
7
the ordinary course of business or (iv) declared or paid any dividend
on its capital stock.
(w) The Company (i) makes and keeps accurate books
and records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial statements
and to maintain accountability for its assets, (C) access to its assets
is permitted only in accordance with management's authorization and (D)
the reported accountability for its assets is compared with existing
assets at reasonable intervals.
(x) Neither the Company nor any of its subsidiaries
(i) is in violation of its charter, code of regulations or by-laws,
(ii) is in default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its properties or assets is
subject or (iii) is in violation in any respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of
its business where such violation or failure would have a Material
Adverse Effect. Each such indenture, mortgage, deed of trust, loan
agreement, lease license or other agreement is in full force and
effect.
(y) Neither the Company nor any of its subsidiaries,
nor any director, officer, agent, employee or other person associated
with or acting on behalf of the Company or any of its subsidiaries, has
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity;
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is in
violation of any provision of the Foreign Corrupt Practices Act of
1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(z) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from any of
the property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak,
- 7 -
8
emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries
or with respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would not
be reasonably likely to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect; and the terms
"hazardous wastes", "toxic wastes", "hazardous substances" and "medical
wastes" shall have the meanings specified in any applicable local
state, federal and foreign laws or regulations with respect to
environmental protection.
(aa) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
(bb) The Company and each of its subsidiaries possess
such permits, licenses, approvals, consents, orders and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies, court, department, commission or any board, bureau, review
board or similar organization (collectively, "Authority") necessary to
conduct the business now operated by them, except where the failure to
possess the same would not, singly or in the aggregate, have a Material
Adverse Effect; the Company and each of its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses, which
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(cc) The Company and each of its subsidiaries are in
compliance with all applicable laws, statutes, ordinances, rules
regulations, injunctions or decrees, certificates of need, or any other
published requirements or mandatory policies of any Authority
(collectively, "Laws") of any applicable jurisdiction, the enforcement
of which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any
of its subsidiaries has received any written notice from any Authority
to the effect that the Company or any subsidiary is not in compliance
with any Laws, nor that the Company or any subsidiary is the subject or
target of any investigation with respect to any violation or possible
violation of any Laws, the violation of or non-compliance with which
would reasonably be expected to have a Material Adverse Effect.
- 8 -
9
(dd) The Company has been advised that the Common
Stock (including the Stock) has been approved for quotation on the
Nasdaq National Market, upon official notice of issuance thereof, with
trading scheduled to begin at the Effective Time, or at such later time
as the Underwriters may request.
2. Representations, Warranties and Agreements of the Selling
Shareholders. Each Selling Shareholder severally represents, warrants and agrees
that:
(a) Such Selling Shareholder has, and immediately
prior to the First Delivery Date (as defined in Section 5
hereof) will have, good and valid title to the shares of Stock
to be sold by such Selling Shareholder hereunder on such date,
free and clear of all liens, encumbrances, equities or claims;
and upon delivery of such shares and payment therefor pursuant
hereto, good and valid title to such shares, free and clear of
all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
(b) Such Selling Shareholder has full right, power
and authority to enter into this Agreement; the execution,
delivery and performance of this Agreement by such Selling
Shareholder and the consummation by such Selling Shareholder
of the transactions contemplated hereby will not conflict with
or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Shareholder is a party or by
which such Selling Shareholder is bound or to which any of the
property or assets of such Selling Shareholder is subject, nor
will such actions result in any violation of any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over such Selling
Shareholder or the property or assets of such Selling
Shareholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement by such Selling Shareholder and the consummation by
such Selling Shareholder of the transactions contemplated
hereby.
(c) The Registration Statement and the Prospectus and
any further amendments or supplements to the Registration
Statement or the Prospectus when they become effective or are
filed with the Commission, as the case may be, do not and will
not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto) and as of
the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) 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
- 9 -
10
misleading; provided that no representation or warranty is
made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and
in conformity with written information furnished to the
Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein.
(d) Such Selling Shareholder has no reason to believe
that the representations and warranties of the Company
contained in Section 1 hereof are not materially true and
correct, is familiar with the Registration Statement and the
Prospectus (as amended or supplemented) and has no knowledge
of any material fact, condition or information not disclosed
in the Registration Statement, as of the effective date, or
the Prospectus (or any amendment or supplement thereto), as of
the applicable filing date, which has adversely affected or
may adversely affect the business of the Company and is not
prompted to sell shares of Common Stock by any information
concerning the Company which is not set forth in the
Registration Statement and the Prospectus.
(e) Such Selling Shareholder has not taken and will
not take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be
expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the Stock.
3. Purchase of the Stock by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 3,000,000 shares of
the Firm Stock and each Selling Shareholder hereby agrees to sell the number of
shares of the Firm Stock set forth opposite his or her name in Schedule 2
hereto, severally and not jointly, to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares
of the Firm Stock set opposite that Underwriter's name in Schedule 1 hereto.
Each Underwriter shall be obligated to purchase from the Company, and from each
Selling Shareholder, that number of shares of the Firm Stock which represents
the same proportion of the number of shares of the Firm Stock to be sold by the
Company, and by each Selling Shareholder, as the number of shares of the Firm
Stock set forth opposite the name of such Underwriter in Schedule 1 represents
of the total number of shares of the Firm Stock to be purchased by all of the
Underwriters pursuant to this Agreement. The respective purchase obligations of
the Underwriters with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option
to purchase up to 540,000 shares of Option Stock. Such option is granted solely
for the purpose of covering overallotments in the sale of Firm Stock and is
exercisable as provided in Section 5 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set opposite the name of such Underwriters
- 10 -
11
in Schedule 1 hereto. The respective purchase obligations of each Underwriter
with respect to the Option Stock shall be adjusted by the Representatives so
that no Underwriter shall be obligated to purchase Option Stock other than in
100 share amounts. The price of both the Firm Stock and any Option Stock shall
be [$_____] per share.
The Company and the Selling Shareholders shall not be
obligated to deliver any of the Stock to be delivered on the First Delivery Date
or the Second Delivery Date (as hereinafter defined), as the case may be, except
upon payment for all the Stock to be purchased on such Delivery Date as provided
herein.
4. Offering of Stock by the Underwriters.
Upon authorization by the Representatives of the release of
the Firm Stock, the several Underwriters propose to offer the Firm Stock for
sale upon the terms and conditions set forth in the Prospectus.
5. Delivery of and Payment for the Stock. Delivery of and
payment for the Firm Stock shall be made at the offices of Xxxxxx Brothers Inc.,
Three World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York
City time, on the third full business day following the Effective Date or at
such other date or place as shall be determined by agreement between the
Representatives, the Company and the Selling Shareholders. This date and time
are sometimes referred to as the "First Delivery Date." On the First Delivery
Date, the Company and the Selling Shareholders shall deliver or cause to be
delivered certificates representing the Firm Stock to the Representatives for
the account of each Underwriter against payment to or upon the order of the
Company and the Selling Shareholders of the purchase price by certified or
official bank check or checks payable in New York Clearing House (next-day)
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. Upon delivery, the Firm Stock shall be registered in
such names and in such denominations as the Representatives shall request in
writing not less than two full business days prior to the First Delivery Date.
For the purpose of expediting the checking and packaging of the certificates for
the Firm Stock, the Company and the Selling Shareholders shall make the
certificates representing the Firm Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement the option granted in Section 3 may be exercised by written
notice being given to the Company by the Representatives. Such notice shall set
forth the aggregate number of shares of Option Stock as to which the option is
being exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representatives, when the
shares of Option Stock are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the option shall
have been exercised. The date and time the shares of Option Stock
- 11 -
12
are delivered are sometimes referred to as the "Second Delivery Date" and the
First Delivery Date and the Second Delivery Date are sometimes each referred to
as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at
the place specified in the first sentence of the first paragraph of this Section
5 (or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by certified or official bank
check or checks payable in New York Clearing House (next-day) funds. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Stock shall be registered in such names and
in such denominations as the Representatives shall request in the aforesaid
written notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Stock, the Company shall make the certificates
representing the Option Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the Second Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may
be required by Rule 430A(a)(3) under the Securities Act; to make no
further amendment or any supplement to the Registration Statement or to
the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with
copies thereof; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the
Representatives and to counsel for the Underwriters a signed copy of
the Registration Statement as originally
- 12 -
13
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such
number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration Statement
as originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement) and any Rule
462(b) Registration Statement and (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the
delivery of a prospectus is required at any time after the Effective
Time in connection with the offering or sale of the Stock or any other
securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Securities Act, to notify the
Representatives and, upon their request, to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the judgment of the Company
or the Representatives, be required by the Securities Act or requested
by the Commission;
(e) Prior to filing with the Commission any amendment
to the Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the
filing, which consent shall not be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date,
to make generally available to the Company's security holders and to
deliver to the Representatives an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations (including,
at the option of the Company, Rule 158);
(g) For a period of five years following the
Effective Date, to furnish to the Representatives copies of all
materials furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by the
Company to the principal national securities exchange upon which the
Common Stock may be listed pursuant to requirements of or agreements
with such
- 13 -
14
exchange (or the Nasdaq National Market if the Common Stock is so
listed thereon) or to the Commission pursuant to the Exchange Act or
any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as
the Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Stock; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, offer for sale, sell, grant
any option to purchase or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of)
any shares of Common Stock (other than the Stock and shares issued
pursuant to employee benefit plans, qualified stock option plans or
other employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights), sell or
grant options, rights or warrants with respect to any shares of Common
Stock (other than the grant of options pursuant to option plans
existing on the date hereof), or waive the restrictions on sale
contained in any agreement or award letter to which the options or
shares of Common Stock of any officer or director of the Company are
subject without the prior written consent of Xxxxxx Brothers Inc. on
behalf of the Representatives; and to cause each person that was a
shareholder of the Company prior to the issuance of the Stock to be
sold hereunder to furnish to the Representatives, prior to the First
Delivery Date, a letter or letters, in form and substance satisfactory
to counsel to the Underwriters, pursuant to which each such person
shall agree not to, directly or indirectly, offer for sale, sell, grant
any option to purchase or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of)
any shares of Common Stock for a period of 180 days from the date of
the Prospectus, without the prior written consent of Xxxxxx Brothers
Inc. on behalf of the Representatives;
(j) Prior to the Effective Date, to apply for the
inclusion of the Stock on the Nasdaq National Market and to use its
best efforts to complete that inclusion, subject only to official
notice of issuance or the effectiveness of the Registration Statement
and evidence of satisfactory distribution, prior to the First Delivery
Date;
(k) Prior to filing with the Commission any reports
on Form SR pursuant to Rule 463 of the Rules and Regulations, to
furnish a copy thereof to the counsel for the Underwriters and receive
and consider its comments thereon, and to
- 14 -
15
deliver promptly to the Representatives a signed copy of each report on
Form SR filed by it with the Commission;
(l) To apply the net proceeds from the sale of the
Stock being sold by the Company as set forth in the Prospectus;
(m) To comply with all registration, filings and
reporting requirements of the Exchange Act, which may from time to time
be applicable to the Company and to comply with all provisions of all
undertakings contained in the Registration Statement; and
(n) To take such steps as shall be necessary to
ensure that neither the Company nor any subsidiary shall become an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
7. Further Agreements of the Selling Shareholders. Each
Selling Shareholder agrees:
(a) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, offer for sale,
sell or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result
in the disposition by any person at any time in the future of)
any shares of Common Stock (other than the Stock), without the
prior written consent of Xxxxxx Brothers Inc.
(b) That the Stock to be sold by such Selling
Shareholder hereunder is subject to the interest of the
Underwriters and that the obligations of such Selling
Shareholder hereunder shall not be terminated by any act of
such Selling Shareholder, by operation of law, by the death or
incapacity of such Selling Shareholder or, in the case of a
trust, by the death or incapacity of any executor or trustee
or the termination of such trust, or the occurrence of any
other event.
(c) To deliver to the Representatives prior to the
First Delivery Date a properly completed and executed United
States Treasury Department Form W-9.
8. Expenses. (1) The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Stock and
any taxes payable in that connection; (b) the costs incident to the
preparation, printing and filing under the Securities
------------
1 Expenses could be be borne entirely by the Company, instead of by the
Company and the Selling Shareholders in proportion to the shares to be
sold by each, if determined by the Company's Board of Directors.
- 15 -
16
Act of the Registration Statement and any amendments and exhibits thereto; (c)
the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus, all as provided in this Agreement;
(d) the costs of printing and distributing this Agreement and any other related
documents in connection with the offering, purchase, sale and delivery of the
stock; (e) the filing fees and expenses (including related fees and expenses of
counsel to the Underwriters) incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of sale of the
Stock; (f) any applicable listing or other related fees; (g) the fees and
expenses of qualifying the Stock under the securities laws of the several
jurisdictions as provided in Section 6(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters, which fees shall not exceed $15,000); (h) the fees
and expenses of any transfer agent or registrar for the Stock; and (i) all other
costs and expenses incident to the performance of the obligations of the Company
and the Selling Shareholders under this Agreement; provided that, except as
provided in this Section 8 and in Section 13, the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Stock which they may sell and the expenses of advertising
any offering of the Stock made by the Underwriters and the Selling Shareholders
shall pay the fees and expenses of their counsel and any transfer taxes payable
in connection with their respective sales of Stock to the Underwriters and
reimburse the Company for their pro rata share of the fees and expenses paid by
the Company in connection with the offering of the Stock.
9. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Shareholders contained herein, to the performance by the Company
and the Selling Shareholders of their obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with
the Commission in accordance with Section 6(a) hereof, and the
Representatives shall have received notice thereof, not later than the
first full business day next following the date of this Agreement or
such later date as shall be consented to in writing by the
Representatives; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and
disclosed to the Company on or prior to such Delivery Date that the
Registration Statement or the Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the reasonable
opinion of Kramer, Levin, Naftalis & Xxxxxxx, counsel for the
Underwriters, is material or omits to state a fact which in the
reasonable opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not
misleading.
- 16 -
17
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Stock, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxxxxx, Muething & Xxxxxxx P.L.L. shall have
furnished to the Representatives their written opinion, as counsel to
the Company, addressed to the Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company and each of its subsidiaries
have been duly incorporated and are validly existing as
corporations in good standing (or the local law equivalent)
under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in
good standing (or the local law equivalent) as foreign
corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their
respective businesses requires such qualification, except
where the failure to be so qualified or in good standing would
not have a Material Adverse Effect, and have all power and
authority necessary to own or hold their respective properties
and conduct the businesses in which they are engaged;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and all of the
issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and
nonassessable and conform to the description thereof contained
in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and
validly authorized and issued and are fully paid,
nonassessable and (except for directors' qualifying shares)
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(iii) Other than as set forth in the
Prospectus, there are (A) no preemptive or other rights to
subscribe for or to purchase the capital stock of the Company
arising under the Ohio General Corporation Law, or, to the
knowledge of such counsel, otherwise, (B) to the knowledge of
such counsel no outstanding options, warrants or other rights
calling for the issuance of any share of capital stock of the
Company or other instrument that by its terms is convertible
into, exercisable for or exercisable for capital stock of the
Company, and no rights, by contract or otherwise, to require
registration under the Securities Act of shares of Stock, and
(C) no restriction upon the voting or transfer of, any shares
of the Stock pursuant to the Company's charter or by-laws or
any agreement or other instrument known to such counsel;
- 17 -
18
(iv) To the best of such counsel's knowledge
and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any
of its subsidiaries, might have a material adverse effect on
the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company
and its subsidiaries (taken as a whole); and, to the best of
such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
(v) This Agreement has been duly authorized,
executed and delivered by the Company;
(vi) The shares of Stock being delivered on
such Delivery Date have been duly and validly authorized, and,
when issued and delivered to and paid for by the Underwriters
pursuant to the terms of this Agreement, will be validly
issued, fully paid and non-assessable; and the shares of Stock
being delivered on such Delivery Date conform to the
description thereof contained in the Prospectus under the
caption "Description of Capital Stock". Upon delivery of the
payment for the Stock to be sold by the Company to the
Underwriters pursuant to this Agreement, each Underwriter
(assuming that it acquires such Shares without notice of any
adverse claim, as such term is used in Section 8-302 of the
Uniform Commercial Code in effect in the State of New York)
will acquire good and marketable title to the Stock so sold
and delivered to it, free and clear of all liens, pledges,
charges, claims, security interests, restrictions on transfer,
agreements or other defects of title whatsoever (other than
those resulting from any action taken by such Underwriter);
(vii) The Registration Statement, including
any Rule 462(b) Registration Statement, was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge
of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(viii) The Registration Statement, including
any Rule 462(b) Registration Statement, and the Prospectus and
any further amendments or supplements thereto made by the
Company prior to such Delivery Date (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act
and the Rules and Regulations;
- 18 -
19
(ix) All descriptions in the Prospectus of
contracts and other documents to which the Company or any of
its subsidiaries is a party are accurate as summaries in all
material respects. To the best of such counsel's knowledge,
there are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules
and Regulations which have not been described or filed as
exhibits to the Registration Statement;
(x) To the best of such counsel's knowledge,
there are no contracts, agreements or understandings between
the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company
to include such securities in the securities registered
pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement
filed by the Company under the Securities Act;
(xi) The Common Stock (including the Stock)
is duly authorized for listing on the Nasdaq National Market,
subject only to official notice of issuance;
(xii) Except for the registration of the
Stock under the Securities Act and such consents, approvals,
authorizations, registrations and qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is
required for the consummation of the Reorganization; and the
Reorganization has been consummated;
(xiii) The issue and sale of the shares of
Stock being delivered on such Delivery Date by the Company and
the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions
contemplated hereby and the Reorganization will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the charter, code of regulations, or by-laws of
the Company or any of its subsidiaries, nor will such actions
result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets; and
except for the registration of the Stock under the Securities
Act and the Rules
- 19 -
20
and Regulations and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and
the consummation of the transactions contemplated hereby and
the Reorganization;
(xiv) To the best of such counsel's
knowledge, neither the Company nor any subsidiary of the
Company is in violation of its charter, code of regulations or
by-laws and no default by the Company or any subsidiary exists
in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
material contract or other agreement or instrument that is
described or referred to in the Registration Statement or the
Prospectus or filed as an exhibit to the Registration
Statement;
(xv) To the best of such counsel's
knowledge, the Company and its subsidiaries are in compliance
in all material respects with all applicable and material
laws, statutes, injunctions or decrees, certificates of need,
ordinances, rules or regulations of any Authority of any
applicable jurisdiction except as reflected in the Prospectus
or where the failure to comply would not have a Material
Adverse Effect; and
(xvi) The Company is not, and upon the
issuance and sale of the Stock as contemplated in the
Agreement and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment
company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the
Commission thereunder.
In rendering such opinion, such counsel may (i) state
that their opinion is limited to matters governed by the Federal laws
of the United States of America, the laws of the State of Ohio and the
General Corporation Law of the State of Delaware; and (ii) in respect
of matters of fact, rely upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state that they
believe that both the Underwriters and they are justified in relying
upon such certificates. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and
dated such Delivery Date, in form and substance satisfactory to the
Representatives, to the effect that (x) such counsel has acted as
counsel to the Company on certain other matters and has acted as
counsel to the Company in connection with the preparation of the
Registration Statement, and (y) based on the foregoing, no facts have
come to the attention of such counsel which lead them to believe that
the Registration Statement, as of the Effective Date and as of such
Delivery Date, contains any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the
- 20 -
21
statements therein not misleading, or that the Prospectus, as of its
date and as of such Delivery Date, contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The
foregoing opinion and statement may be qualified by a statement to the
effect that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for the statements made
in the Prospectus under the captions "Shares Eligible for Future Sale"
and "Description of Capital Stock," insofar as such statements relate
to the Stock and concern legal matters.
(e) Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L. shall have
furnished to the Representatives their written opinion, as counsel to the
Selling Shareholders, addressed to the Underwriters and dated the First Delivery
Date, in form and substance reasonably satisfactory to the Representatives, to
the effect that:
(i) Each Selling Shareholder has full right,
power and authority to enter into this Agreement; the
execution, delivery and performance of this Agreement
by each Selling Shareholder and the consummation by
each Selling Shareholder of the transactions
contemplated hereby will not conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
statute, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to
such counsel to which any Selling Shareholder is a
party or by which any Selling Shareholder is bound or
to which any of the property or assets of any Selling
Shareholder is subject, nor will such actions result
in any violation of any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
any Selling Shareholder or the property or assets of
any Selling Shareholder; and, except for the
registration of the Stock under the Securities Act
and such consents, approvals, authorizations,
registrations or qualifications as may be required
under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or
filing or registration with, any such court or
governmental agency or body is required for the
execution, delivery and performance of this Agreement
by any Selling Shareholder and the consummation by
any Selling Shareholder of the transactions
contemplated hereby;
(ii) This Agreement has been duly executed
and delivered by each Selling Shareholder;
(iv) Immediately prior to the First Delivery
Date, each Selling Shareholder had good and valid
title to the shares of Stock to be
- 21 -
22
sold by such Selling Shareholder under this
Agreement, free and clear of all liens, encumbrances,
equities or claims, and full right, power and
authority to sell, assign, transfer and deliver such
shares to be sold by such Selling Shareholder
hereunder; and
(v) Good and valid title to the shares of
Stock to be sold by each Selling Shareholder under
this Agreement, free and clear of all liens,
encumbrances, equities or claims, has been
transferred to each of the several Underwriters.
In rendering such opinion, such counsel may (i) state that
their opinion is limited to matters governed by the Federal
laws of the United States of America, the laws of the State of
Ohio and the General Corporation Law of the State of Delaware
and (ii) in rendering the opinion in Section 9(e)(iv) above,
rely upon a certificate of each Selling Shareholder in respect
of matters of fact as to ownership of and liens, encumbrances,
equities or claims on the shares of Stock sold by such Selling
Shareholder, provided that such counsel shall furnish copies
thereof to the Representatives and state that they believe
that both the Underwriters and they are justified in relying
upon such certificate. Such counsel shall also have furnished
to the Representatives a written statement, addressed to the
Underwriters and dated the First Delivery Date, in form and
substance satisfactory to the Representatives, to the effect
that (x) such counsel has acted as counsel to each Selling
Shareholder on a regular basis and has acted as counsel to
each Selling Shareholder in connection with the preparation of
the Registration Statement, and (y) based on the foregoing, no
facts have come to the attention of such counsel which lead
them to believe that the Registration Statement, as of the
Effective Date, contained any untrue statement of a material
fact relating to any Selling Shareholder or omitted to state
such a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, or that the Prospectus contains any untrue
statement of a material fact relating to any Selling
Shareholder or omits to state such a material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. The foregoing opinion and statement may
be qualified by a statement to the effect that such counsel
does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus.
(f) The Representatives shall have received from
Kramer, Levin, Naftalis & Xxxxxxx, counsel for the Underwriters, such
opinion or opinions, dated such Delivery Date, with respect to the
issuance and sale of the Stock, the Registration Statement, the
Prospectus and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
- 22 -
23
(g) At the time of execution of this Agreement, the
Representatives shall have received from Coopers & Xxxxxxx L.L.P. a
letter, in form and substance satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof (i) confirming
that they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, and (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five days prior
to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in connection
with registered public offerings.
(h) At each such Delivery Date, the Representatives
shall have received from Coopers & Xxxxxxx L.L.P. a letter (the
"bring-down letter") of such accountants, addressed to the Underwriters
and dated such Delivery Date (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than five days prior to the
date of the bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters
covered by the letter furnished pursuant to clause (g) of this Section
9 and (iii) confirming in all material respects the conclusions and
findings set forth in the letter furnished pursuant to clause (g) of
this Section 9.
(i) The Company shall have furnished to the
Representatives a certificate, dated such Delivery Date, of its Chief
Executive Officer and its chief financial officer stating that:
(i) The representations, warranties and
agreements of the Company in Section 1 are true and correct as
of such Delivery Date; the Company has complied with all its
agreements contained herein; and the conditions set forth in
Sections 9(a) and 9(k) have been fulfilled; and
(ii) They have carefully examined the
Registration Statement and the Prospectus and, in their
opinion (A) as of the Effective Date, the Registration
Statement and Prospectus did not include any untrue statement
of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading (as to the Prospectus, in
light of the circumstances under which they were made), and
(B) since the Effective Date no event has occurred which
should have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus.
- 23 -
24
(j) Each Selling Shareholder shall have furnished to
the Representatives on the First Delivery Date a certificate, dated the
First Delivery Date, signed by, or on behalf of, such Selling
Shareholder stating that the representations, warranties and agreements
of such Selling Shareholder contained herein are true and correct as of
the First Delivery Date and that such Selling Shareholder has complied
with all agreements contained herein to be performed by such Selling
Shareholder at or prior to the First Delivery Date.
(k) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest audited
financial statements included in the Prospectus any loss or
interference with its business from fire, explosion flood, or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii) since such
date there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is, in the
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Stock being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or in the over-the-counter market, or trading
in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in
the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the
Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(l) The Nasdaq National Market shall have approved
the Stock for inclusion subject only to official notice of issuance or
effectiveness of the Registration Statement and evidence of
satisfactory distribution.
- 24 -
25
(m) The National Association of Securities Dealers,
Inc., upon review of the terms of the underwriting arrangements for the
public offering of the Stock, shall have raised no objection thereto.
(n) Prior to any Delivery Date, the Company shall
have furnished to the Representatives such other information,
certificates and documents as they may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which that Underwriter,
officer, employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the Stock
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading or
(iii) any act or failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to, the Stock or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Company shall not
be liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse each Underwriter and each
such officer, employee or controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or
- 25 -
26
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application, in reliance upon and in conformity
with written information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) The Selling Shareholders, severally in proportion to the
number of shares of Stock to be sold by each of them hereunder, shall indemnify
and hold harmless each Underwriter, its officers and employees, and each person,
if any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Stock), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, Registration Statement or the Prospectus, or in any
amendment or supplement thereto, any material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Underwriter, its officers and employees and each such controlling person
for any legal or other expenses reasonably incurred by that Underwriter, its
officers and employees or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Selling
Shareholders shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or in any such amendment or supplement in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Selling Shareholders may otherwise have to any Underwriter
or any officer, employee or controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors, and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the
- 26 -
27
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer,
employee or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure; and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnifying party, otherwise than under this Section
10. If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 10 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company or the Selling Shareholders under this Section
10 if, in the reasonable judgment of the Representatives, it is advisable for
the Representatives and those Underwriters, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the Company or the
Selling Shareholders. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or
- 27 -
28
(ii) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Selling Shareholders on the one hand
and the Underwriters on the other from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Stock purchased under this Agreement
(before deducting expenses) received by the Company and the Selling
Shareholders, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of the Stock
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Shareholders or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 10(e) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10 shall be deemed to include, for
purposes of this Section 10(e), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 10(e), unless
guilty of a fraudulent misrepresentation (within the meaning of Section 11(F) of
the Securities Act), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Stock underwritten
by it and distributed to the public was offered to the public exceeds the amount
of any damages which such Underwriter has otherwise paid or
- 28 -
29
become liable to pay by reason of any 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 10(e) are several in proportion to their respective underwriting
obligations and not joint.
(f) The Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public offering of the
Stock by the Underwriters set forth on the cover page of, the legend concerning
over-allotments on the inside front cover page of, and the concession and
reallowance figures appearing under the caption "Underwriting" in, the
Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
11. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Stock which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining non-defaulting Underwriter in
Schedule 1 hereto bears to the total number of shares of the Firm Stock set
opposite the names of all the remaining non-defaulting Underwriters in Schedule
1 hereto; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Stock on such Delivery Date if the
total number of shares of the Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total number of shares of the Stock to be purchased on such Delivery Date, and
any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of shares of the Stock which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 3. If the foregoing maximums
are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Stock to be purchased on such Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of the Company to sell, the Option Stock)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company or the Selling Shareholders, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 8 and 13. As used in this Agreement, the term "Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule 1 hereto who, pursuant to this Section 11,
purchases Firm Stock which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company and the Selling
Shareholders for damages caused by its default.
- 29 -
30
If other underwriters are obligated or agree to purchase the Stock of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, the Prospectus
or in any other document or arrangement.
12. Termination. The obligations of the Underwriters hereunder
may be terminated by the Representatives by notice given to and received by the
Company and the Selling Shareholders prior to delivery of and payment for the
Firm Stock if, prior to that time, any of the events described in Sections 9(i)
or 9(j) shall have occurred or if the Underwriters shall decline to purchase the
Stock for any reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If the Company or
any Selling Shareholder shall fail to tender the Stock for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company or the Selling Shareholders to perform any agreement on its part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company is not fulfilled, the Company
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters in
connection with this Agreement and the proposed purchase of the Stock, and upon
demand the Company shall pay the full amount thereof to the Representatives. If
this Agreement is terminated pursuant to Section 11 by reason of the default of
one or more Underwriters, neither the Company nor any Selling Shareholder shall
be obligated to reimburse any defaulting Underwriter on account of those
expenses.
14. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(o) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx Brothers Inc.,
Three World Financial Center, New York, New York 10285, Attention:
Syndicate Department (Fax: 212-526- 6588), with a copy, in the case of
any notice pursuant to Section 10(c), to the Director of Litigation,
Office of the General Counsel, Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(p) if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Xxxxxxx Xxxxxx (Fax:
000-000-0000), with a copy to Xxxxxxx, Meuthing & Xxxxxxx, P.L.L. 1800
Provident Tower, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx, Xx.;
(c) if to any Selling Shareholder, shall be
delivered or sent by mail, telex or facsimile transmission to such
Selling Shareholder at the address set forth on Schedule 2 hereto;
- 30 -
31
provided, however, that any notice to an Underwriter pursuant to Section 10(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by Xxxxxx Brothers Inc. on behalf of the
Representatives.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company
and the Selling Shareholders, and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that (A) the representations, warranties, indemnities and
agreements of the Company and the Selling Shareholders contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Underwriter within the meaning of Section 15 of the
Securities Act and (B) the indemnity agreement of the Underwriters contained in
Section 10(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 15, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Shareholders and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
17. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means any day on which the
New York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
19. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
- 31 -
32
[Balance of Page Intentionally Blank]
- 32 -
33
If the foregoing correctly sets forth the agreement of the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
XXXXXX INTERNATIONAL INC.
By:
---------------------------------------
Name:
Title:
The Selling Shareholders:
By:
---------------------------------------
Name: Xxxxxxx Xxxxxx Xxxxx
By:
---------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Accepted:
XXXXXX BROTHERS INC.
X.X. XXXXXXXX & CO.
For themselves and as Representatives
of the Several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By
------------------------------
Authorized Representative
- 33 -
34
SCHEDULE 1
----------
Number of
Underwriter Shares
-----------
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . .
X.X. Xxxxxxxx & Co.. . . . . . . . . . . . . . . . . . . .
Total
- 34 -
35
SCHEDULE 2
----------
Name and Address Number of Shares
of Selling Shareholder of Firm Stock
---------------------- -------------
Xxxxxxx Xxxxxx Xxxxx...................................................
Address:
Xxxxxxxxxxx X. Xxxxxx..................................................
Address:
Total
- 35 -
