EXHIBIT 99.H1
3,500,000 Shares
MEDALLION FINANCIAL CORP.
Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
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April __, 0000
XXXXXX XXXX LLC
BEAR, XXXXXXX & CO. INC.
EVEREN SECURITIES, INC.
X.X. XXXXXXXX & CO.
As Representatives of the several Underwriters
named on Schedule I hereto
x/x Xxxxxx Xxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Introductory. Medallion Financial Corp., a Delaware corporation (the
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"Company"), proposes to sell, pursuant to the terms of this Agreement, to the
several underwriters named on Schedule I hereto (the "Underwriters," or each, an
"Underwriter", which term shall also include any underwriter substituted as
hereinafter provided in Section 12), an aggregate of 3,500,000 shares of the
Company's common stock, par value $.01 per share (the "Common Stock"). The
3,500,000 shares so proposed to be sold are hereinafter referred to as the "Firm
Shares." The Company also proposes to sell to the Underwriters, upon the terms
and conditions set forth in Section 3 hereof, up to an additional 525,000 shares
of Common Stock (the "Option Shares"). The Firm Shares and the Option Shares
are hereinafter referred to collectively as the "Shares." Xxxxxx Xxxx LLC
("Xxxxxx Xxxx"), Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") EVEREN Securities,
Inc. ("Everen") and X.X. Xxxxxxxx & Co. ("Bradford") and are acting as
representatives of the several Underwriters and in such capacity are hereinafter
referred to collectively as the "Representatives." Capitalized terms used in
this Agreement without definition have the meanings specified in the Prospectus
(as hereinafter defined).
2. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form N-2 (File No. 333-____) with
respect to the Shares has been prepared in conformity in all material
respects with the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations (the "Securities Act
Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, and the Investment Company Act of 1940, as
amended (the "Investment Company Act" and, together with the Securities
Act, the "Acts"), and the rules and regulations thereunder (the "Investment
Company Act Rules and Regulations" and, together with the Securities Act
Rules and Regulations, the "Rules and Regulations"); such registration
statement has been filed with the Commission under the Securities Act and
has been declared effective by the Commission under the Securities Act and
no post-effective amendment to such registration statement has been filed
as of the date of this Agreement; one or more amendments to such
registration statement, including in each case an amended preliminary
prospectus, copies of which amendments have heretofore been delivered to
you, have been so prepared and filed. The term "Registration Statement"
means such registration statement, as amended, at the time it was declared
effective by the Commission and shall be deemed to include all information
omitted therefrom in reliance upon Rule 430A and contained in the
Prospectus referred to below. If it is contemplated, at the time this
Agreement is executed, that a post-effective amendment to the registration
statement will be filed and must be declared effective before the offering
of the Shares may commence, the term "Registration Statement" as used in
this Agreement means the registration statement as amended by said post-
effective amendment. The term "Registration Statement" as used in this
Agreement shall also include any registration statement relating to the
Shares that is filed and declared effective pursuant to Rule 462(b) under
the Securities Act. The term "Prospectus" as used in this Agreement means
the prospectus as first filed pursuant to Rule 497(b), (c) or (h) under the
Securities Act, except that if any revised prospectus shall be provided to
the Underwriters by the Company in conformity with this Agreement for use
in connection with the offering of the Shares which differs from the
Prospectus on file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 497(b), (c) or (h) under the
Securities Act), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Underwriters
for such use. The term "Preliminary Prospectus" as used in this Agreement
means the prospectus subject to completion in the form included in
[Amendment No. 1] to the Registration Statement at the time of the initial
filing of [Amendment No. 1] to the Registration Statement with the
Commission, and as such prospectus shall have been amended from time to
time prior to the date of the Prospectus and any prospectus filed by the
Company with the consent of the Representatives pursuant to Rule 497(a)
under the Securities Act. No document has been or will be prepared or
distributed in reliance on Rule 434 under the Securities Act. For purposes
of the following representations and warranties, to the extent reference is
made to the Prospectus and at the relevant time the Prospectus is not
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yet in existence, such reference shall be deemed to be to the most recent
Preliminary Prospectus.
(b) Neither the Commission nor any state regulatory authority has issued
or, to the Company's knowledge, threatened to issue any order preventing or
suspending the use of any Preliminary Prospectus, and, at its date of
issue, each Preliminary Prospectus conformed in all material respects with
the requirements of the Acts and did not include any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and, when the
Registration Statement became effective and at all times subsequent thereto
up to and including the Closing Dates (as defined in Section 3 hereof) the
Registration Statement and the Prospectus at the time the Registration
Statement became effective (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the Company for
use in connection with the offering of the Shares which differs from the
Prospectus on file at the Commission at the time the Registration Statement
became effective, in which case at the time it is first provided to the
Underwriters for such use) and at the Closing Dates, conformed or will
conform, as the case may be, in all material respects to the requirements
of the Acts and the Registration Statement and the Prospectus at such times
did not or will not, as the case may be, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the foregoing representations, warranties and agreements
shall not apply to information contained in or omitted from any Preliminary
Prospectus or the Registration Statement or the Prospectus or any amendment
thereto in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter, directly or
through the Representatives, specifically for use in the preparation
thereof; there is no franchise, lease, contract, agreement or other
document required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration Statement which
is not described or filed therein as required and the exhibits that have
been filed are complete and correct copies of the documents of which they
purport to be copies; and all descriptions of any such franchises, leases,
contracts, agreements or other documents contained in the Registration
Statement are accurate and complete descriptions of such documents in all
material respects and fairly present the information required to be shown
with respect thereto by Form N-2 under the Act.
(c) The Company and each of Medallion Funding Corp., Medallion Media,
Inc., Xxxxxxx Capital Corp. and Transportation Capital Corp. (together, the
"Subsidiaries") have been duly organized and are validly existing and in
good standing as corporations under the laws of their respective
jurisdictions of organization, and have the corporate power and authority
to own or lease their properties and to conduct their respective businesses
as described in the Prospectus; the Company and each of the Subsidiaries
are in possession of and operating in compliance in all material respects
with all franchises, grants, registrations, qualifications, authorizations,
licenses, permits, easements, consents, certificates and orders required
for the conduct of their respective businesses as now being
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conducted and as described in the Registration Statement and the
Prospectus, or for the ownership, leasing and operation of their respective
properties, all of which are valid and in full force and effect and no such
franchise, grant, registration, consent, certificate or order contains a
materially burdensome restriction not adequately disclosed in the
Registration Statement or the Prospectus; and the Company and each of the
Subsidiaries are duly qualified to do business and are in good standing as
foreign corporations in all jurisdictions where their respective ownership
or leasing of properties or the conduct of their respective businesses
requires such qualification and in which the failure to so qualify would
have a Material Adverse Effect (as defined in subsection 2(i)).
(d) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) neither the Company
nor any of the Subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any other transactions
not in the ordinary course of business, (ii) there has not been any
material adverse change or development involving a material prospective
change in the condition (financial or otherwise), properties, business,
management, prospects, net worth, capital stock, investment objectives,
investment policies or results of operations of the Company and the
Subsidiaries taken as a whole, or any change in the capital stock, or
material change in the short-term or long-term debt, of the Company and the
Subsidiaries taken as a whole and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company [or the
Subsidiaries on any class of their respective capital stock].
(e) The financial statements, together with the related notes and
schedules, of the Company set forth in the Prospectus and elsewhere in the
Registration Statement fairly present, on the basis stated in the
Registration Statement, the financial position and the results of
operations and changes in financial position of the Company at the
respective dates or for the respective periods therein specified. Such
statements and related notes and schedules have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein). The
selected financial and statistical data set forth in the Prospectus under
the caption "Selected Financial Data" fairly present, on the basis stated
in the Prospectus, the information set forth therein and have been prepared
in conformity with the requirements of the Securities Act and the
Securities Act Rules and Regulations. The pro forma financial statements
and other pro forma financial information included in the Registration
Statement and the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements, have been properly compiled
on the pro forma bases described therein, and, in the opinion of the
Company, the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(f) Xxxxxx Xxxxxxxx LLP, Xxxxxxxx Xxxxxx & Green LLP and Coopers &
Xxxxxxx LLP, who have expressed opinions on the audited financial
statements and related schedules included in the Registration Statement and
the Prospectus are
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independent certified public accountants as required by the Securities Act
and the Securities Act Rules and Regulations.
(g) The Company's capitalization conforms to the description thereof in
the Prospectus and has been duly authorized and validly issued and are
fully paid and nonassessable and has been issued in compliance with all
federal and state securities laws and was not issued in violation of or
subject to any preemptive rights or similar rights to subscribe for or
purchase securities. Except as disclosed in or contemplated by the
Prospectus and the financial statements of the Company and related notes
thereto included in the Prospectus, neither the Company nor the
Subsidiaries has outstanding any options or warrants to purchase, or any
preemptive rights or other rights to subscribe for or to purchase any
securities or obligations convertible into, or any contracts or commitments
to issue or sell, shares of their respective capital stock or any such
options, rights, convertible securities or obligations. The description of
the Company's stock option and other stock plans or arrangements, and the
options or other rights granted thereunder, as set forth in the Prospectus,
accurately and fairly presents in all material respects the information
required to be shown with respect to such plans, arrangements, options and
rights. All shares of capital stock of each Subsidiary are owned, directly
or indirectly, by the Company free and clear of any liens, encumbrances,
equities or claims.
(h) The Shares 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 nonassessable, free of any preemptive or
similar rights and will conform to the description thereof in the
Prospectus, and good and marketable title to the Shares will pass to the
Underwriters on the Closing Dates free and clear of any lien, encumbrance,
security interest, claim or restriction whatsoever except for (a) those
restrictions imposed under the Company's credit agreements filed as
exhibits to the Registration Statement and (b) those restrictions imposed
generally under the Investment Company Act, the Investment Company Act
Rules and Regulations, the SBIA and the SBA Regulations.
(i) There are no legal or governmental proceedings pending to which the
Company or any of the Subsidiaries or any of their affiliated persons, as
defined under the Investment Company Act, is a party or of which any
property of the Company or any Subsidiary or any of their affiliated
persons is subject, which, if determined adversely to the Company or any
Subsidiary or any of their affiliated person, might individually or in the
aggregate (i) prevent or materially and adversely affect the transactions
contemplated by this Agreement, (ii) suspend the effectiveness of the
Registration Statement, (iii) prevent or suspend the use of the Preliminary
Prospectus in any jurisdiction or (iv) result in a Material Adverse Effect
(as defined below); and to the Company's knowledge no such proceedings are
threatened or contemplated against the Company or any Subsidiary or any of
their affiliated persons by governmental authorities or others. Except as
disclosed in the Prospectus, the Company is not a party nor subject to the
provisions of any material injunction, judgment, decree or order of any
court, regulatory body or other governmental agency or body. "Material
Adverse Effect" means, when used in connection with the
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Company and the Subsidiaries, any development, change or effect that could
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), properties, business, management, prospects, net
worth or results of operations of the Company and the Subsidiaries taken as
a whole had been consummated.
(j) Neither the Company nor any of the Subsidiaries is in violation of
its respective charter, by-laws or other organizational documents or in
default in the performance of any note or other evidence of indebtedness or
any indenture, mortgage, deed of trust, note agreement or other contract,
lease or other instrument to which it is a party or by which it is bound,
or to which any of its property or assets is subject other than defaults
which would not, individually or in the aggregate, result in a Material
Adverse Effect and, as of the Closing Dates, no condition or event shall
have occurred which, with notice or a lapse of time or both, would
constitute a default under such instruments or agreements or result in the
imposition of any penalty or acceleration of any indebtedness other than
such defaults, penalties or acceleration which would not, individually or
in the aggregate, result in a Material Adverse Effect.
(k) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein will not result in a
breach or violation of any of the terms or provisions of or constitute a
default under any note or other evidence of indebtedness or any indenture,
mortgage, deed of trust, note agreement or other contract, lease or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their properties is or may be bound, the
certificate of incorporation, by-laws or other organizational documents of
the Company or any of the Subsidiaries, or any law, order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries or any of their properties and
will not result in the creation of any lien, charge or encumbrance upon the
assets of the Company or the Subsidiaries.
(l) Other than those obtained prior to the date hereof, no consent,
approval, authorization or order of any court or governmental agency or
body is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required by the SBA,
as described in subsection 2(m), the National Association of Securities
Dealers, Inc. (the "NASD") or the securities or "Blue Sky" laws of any
jurisdiction in connection with the purchase and distribution of the Shares
by the Underwriters.
(m) The Company has duly elected to be treated by the Commission under
the Investment Company Act as a business development company and all
required action has been taken by the Company under Section 54 of the
Investment Company Act to qualify the Company as a business development
company [and under the Acts to make the public offering and consummate the
sale of the Shares as provided in this Agreement.]
(n) The Company intends to direct the investment of the proceeds of the
Offering (as defined in the Prospectus) in such a manner as to comply with
the requirements of
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Subchapter M of the Internal Revenue Code of 1986, as amended (the "Code"),
and, immediately after the First Closing Date, the Company and the RIC
Subsidiaries will each be eligible to qualify as a regulated investment
company under Subchapter M of the Code.
(o) The Company has the full corporate power and authority to enter
into this Agreement and to perform its obligations hereunder (including to
issue, sell and deliver the Shares), and this Agreement has been duly and
validly authorized, executed and delivered by the Company.
(p) The Company and the Subsidiaries are in compliance with, and
conduct their respective businesses in conformity with, all applicable
federal, state, local and foreign laws, rules and regulations of any court
or governmental agency or body except non-compliance which would not result
in a Material Adverse Effect; to the knowledge of the Company, other than
as set forth in the Registration Statement and the Prospectus, no
prospective change in any of such federal, state, local or foreign laws,
rules or regulations has been adopted which, when made effective, would
have a Material Adverse Effect.
(q) The Company and the Subsidiaries have filed all necessary federal,
state, local and foreign income, payroll, franchise and other tax returns
and have paid all taxes shown as due thereon or with respect to any of
their properties, and there is no tax deficiency that has been, or to the
knowledge of the Company is likely to be, asserted against the Company or
any of the Subsidiaries or any of their respective properties or assets
that would have a Material Adverse Effect.
(r) No person or entity has the right to require registration of shares
of Common Stock or other securities of the Company because of the filing or
effectiveness of the Registration Statement or otherwise.
(s) Neither the Company nor the Subsidiaries nor any of their
respective officers, directors or any of their affiliated persons has taken
or will take, directly or indirectly, any action designed or intended to
stabilize or manipulate the price of any security of the Company, or which
caused or resulted in, or which might in the future reasonably be expected
to cause or result in, stabilization or manipulation of the price of any
security of the Company.
(t) The Company and the Subsidiaries own or possess all patents,
trademarks, trademark registrations, service marks, service xxxx
registrations, tradenames, copyrights, licenses, inventions, trade secrets
and rights described in the Prospectus as being owned by them or any of
them or necessary for the conduct of their respective businesses, and the
Company is not aware of any claim to the contrary or any challenge by any
other person to the rights of the Company and the Subsidiaries with respect
to the foregoing. The Company's and the Subsidiaries' businesses as now
conducted and as proposed to be conducted do not and will not infringe or
conflict with in any material respect any patents, trademarks, service
marks, tradenames, copyrights, trade secrets, licenses or any other
intellectual property or franchise right of any person. No claim has been
made against the
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Company or any Subsidiary alleging the infringement by the Company or any
Subsidiary of any patent, trademark, servicemark, tradename, copyright,
trade secret, license in or other intellectual property right or franchise
right of any person.
(u) The Company and the Subsidiaries have performed all material
obligations required to be performed by them under all contracts required
by Item 24 of Form N-2 under the Securities Act to be filed as exhibits to
the Registration Statement, and neither the Company, any of the
Subsidiaries nor any other party to such contract is in default under or in
breach of any such obligations except such as would not result in a
Material Adverse Effect. Neither the Company nor any of the Subsidiaries
has received any notice of such default or breach.
(v) Neither the Company or any of the Subsidiaries is involved in any
labor dispute which would result in the Material Adverse Effect nor, to the
Company's knowledge, is any such dispute threatened. Neither the Company
nor any of the Subsidiaries is aware that (i) any executive, key employee
or significant group of employees of the Company or any of the Subsidiaries
plans to terminate employment with the Company or any of the Subsidiaries
or (ii) any such executive or key employee is subject to any noncompete,
nondisclosure, confidentiality, employment, consulting or similar agreement
that would be violated by the present or proposed business activities of
the Company or the Subsidiaries. Neither the Company nor any Subsidiary
has or expects to have any liability for any prohibited transaction or
funding deficiency or any complete or partial withdrawal liability with
respect to any pension, profit sharing or other plan which is subject to
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
to which the Company or any Subsidiary makes or ever has made a
contribution and in which any employee of the Company or any Subsidiary is
or has ever been a participant. With respect to such plans, the Company
and each Subsidiary are in compliance in all material respects with all
applicable provisions of ERISA.
(w) The Company has obtained the written agreement described in Section
8(k) of this Agreement from each of its officers, directors and holders of
Common Stock listed on Schedule II hereto.
(x) The Company and the Subsidiaries have, and the Company and the
Subsidiaries as of the Closing Dates will have, good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned or proposed to be owned by them, in each case free
and clear of all liens, charges, encumbrances and defects except as
disclosed in the Prospectus or such as would not have a Material Adverse
Effect, and any real property and buildings held under lease by the Company
and the Subsidiaries or proposed to be held after giving effect to the
transactions described in the Prospectus are, or will be as of the Closing
Dates, held by them under valid, subsisting and enforceable leases with
such exceptions as would not have a Material Adverse Effect, in each case
except as described in or contemplated by the Prospectus .
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(y) The Company and the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are customary in the businesses in which they are engaged
or propose to engage after giving effect to the transactions described in
the Prospectus; and neither the Company nor any Subsidiary has any reason
to believe that it will not be able to renew such insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue their business at a cost that
would not have a Material Adverse Effect.
(z) Other than as contemplated by this Agreement or as disclosed in the
Prospectus, there is no broker, finder or other party that is entitled to
receive from the Company or the Subsidiaries any brokerage or finders' fee
or other fee or commission as a result of any of the transactions
contemplated by this Agreement.
(aa) The Company has complied with all applicable provisions of Section
517.075 of the Florida Statutes (Chapter 92-198; Laws of Florida).
(bb) Neither the Company or any of the Subsidiaries, nor any director,
officer, agent or employee acting on behalf of the Company or the
Subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity, (ii) made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate
funds, (iii) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977 or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(cc) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization,
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(dd) To the Company's knowledge, neither the Company, any of the
Subsidiaries nor any employee or agent of the Company or any of the
Subsidiaries has made any payment of funds of the Company or any of the
Subsidiaries or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus.
(ee) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters in connection
to this Agreement or the transactions contemplated hereby shall be deemed
to be a representation and warranty by the Company as to the matters
covered thereby.
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3. Purchase by, and Sale and Delivery to, the Underwriters Closing
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Dates.
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(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters the Firm Shares, and the
Underwriters agree, severally and not jointly, to purchase the Firm Shares from
the Company, the number of Firm Shares to be purchased by each Underwriter being
set opposite its name on Schedule I, subject to adjustment in accordance with
Section 12 hereof.
(b) The purchase price per share to be paid by the Underwriters to the
Company will be $ _____ per share (the "Purchase Price").
(c) The Company will deliver the Firm Shares to the Representatives for
the respective accounts of the several Underwriters (in the form of definitive
certificates) issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 noon, New York City time, on the second full business day preceding the
First Closing Date or, if no such direction is received, in the names of the
respective Underwriters or in such other names as Xxxxxx Xxxx may designate
(solely for the purpose of administrative convenience) and in such denominations
as Xxxxxx Xxxx may determine, against payment of the aggregate Purchase Price
therefor by federal funds wire transfer (same day funds) to an account or
accounts previously designated in writing by the Company, all at the offices of
Xxxxxxx Xxxx & Xxxxxxxxx, One Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000. The time and date of the delivery and closing shall be at 10:00
a.m., New York City time, on ______, 1997, in accordance with Rule 15c6-1 of the
Exchange Act. [The Company will bear the one-day cost of funds of Xxxxxx Xxxx
in providing the aggregate Purchase Price in same day funds, rather than next
day funds.] The time and date of such payment and delivery are herein referred
to as the "First Closing Date." The First Closing Date and the location of
delivery of, and the form of payment for, the Firm Shares may be varied by
agreement between the Company and Xxxxxx Xxxx. The First Closing Date may be
postponed pursuant to the provisions of Section 12.
(d) The Company shall make the certificates for the Firm Shares
available to the Representatives for examination on behalf of the Underwriters
not later than 10:00 a.m., New York City time, on the business day preceding the
First Closing Date at the offices of Xxxxxx Xxxx LLC, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
(e) It is understood that Xxxxxx Xxxx, Bear Xxxxxxx, Xxxxxx or
Xxxxxxxx, individually and not as Representatives of the several Underwriters,
may (but shall not be obligated to) make payment to the Company on behalf of any
Underwriter or Underwriters, for the Shares to be purchased by such Underwriter
or Underwriters. Any such payment by Xxxxxx Xxxx, Bradford or Everen shall not
relieve such Underwriter or Underwriters from any of its or their other
obligations hereunder.
(f) The several Underwriters propose to make a public offering of the
Firm Shares (other than to residents of or in any jurisdiction in which
qualification of the Firm Shares is
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required and has not become effective) at the public offering price and upon the
other terms set forth in the Prospectus as soon after the effectiveness of the
Registration Statement as in their judgment is advisable. The Representatives
shall promptly advise the Company of the making of the public offering.
(g) For the purpose of covering any over-allotments in connection with
the distribution and sale of the Firm Shares as contemplated by the Prospectus,
the Company hereby grants to the Underwriters an option to purchase, severally
and not jointly, up to the aggregate number of shares of Option Shares. The
price per share to be paid for the Option Shares shall be the Purchase Price.
The option granted hereby may be exercised as to all or any part of the Option
Shares at any time, but only once, not more than 30 days subsequent to the
effective date of this Agreement. No Option Shares shall be sold and delivered
unless the Firm Shares previously have been, or simultaneously are, sold and
delivered. The right to purchase the Option Shares or any portion thereof may be
surrendered and terminated at any time prior to exercise upon notice by the
Underwriters to the Company. The option granted hereby may be exercised by the
Underwriters by giving written notice from Xxxxxx Xxxx to the Company setting
forth the number of Option Shares to be purchased by them and the date and time
for delivery of and payment for the Option Shares. Each date and time for
delivery of and payment for the Option Shares (which may be the First Closing
Date, but not earlier) is herein called the "Option Closing Date" and shall in
no event be earlier than two business days nor later than five business days
after written notice is given. The Option Closing Date and the First Closing
Date are herein collectively called the "Closing Dates." All purchases of Option
Shares from the Company shall be made on a pro rata basis. Option Shares shall
be purchased for the account of each Underwriter in the same proportion as the
number of Firm Shares set forth opposite such Underwriter's name on Schedule I
hereto bears to the total number of Firm Shares (subject to adjustment by the
Underwriters to eliminate odd lots). Upon exercise of the option by the
Underwriters, the Company agrees to sell to the Underwriters the number of
Option Shares set forth in the written notice of exercise and the Underwriters
agree, severally and not jointly and subject to the terms and conditions herein
set forth, to purchase the number of such shares determined as aforesaid. The
Company will deliver the Option Shares to the Underwriters (in the form of
definitive certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 noon, New York City time, on the second full business day preceding the
Option Closing Date or, if no such direction is received, in the names of the
respective Underwriters or in such other names as Xxxxxx Xxxx may designate
(solely for the purpose of administrative convenience) and in such denominations
as Xxxxxx Xxxx may determine, against payment of the aggregate Purchase Price
therefor by certified or official bank check or checks in New York Clearing
House funds (next day funds), payable to the order of the Company all at the
offices of Xxxxxxx Xxxx & Xxxxxxxxx, One Citicorp Center, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. The Company shall make the certificates for the Option
Shares available to the Underwriters for examination not later than 10:00 a.m.,
New York City time, on the business day preceding the Option Closing Date at the
offices of Xxxxxx Xxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Option
Closing Date and the location of delivery of, and the form of payment for, the
Option Shares may be varied by agreement between the Company and Xxxxxx Xxxx.
The Option Closing Date may be postponed pursuant to the provisions of Section
12.
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4. Covenants and Agreements of the Company. The Company covenants and
---------------------------------------
agrees with the several Underwriters that:
(a) The Company will (i) if the Company and the Representatives have
determined not to proceed pursuant to Rule 430A, use its best efforts to
cause the Registration Statement to become effective, (ii) if the Company
and the Representatives have determined to proceed pursuant to Rule 430A,
use its best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 430A and Rule 497 of
the Securities Act Rules and Regulations and (iii) if the Company and the
Representatives have determined to deliver Prospectuses pursuant to Rule
434 of the Securities Act Rules and Regulations, to use its best efforts to
comply with all the applicable provisions thereof. The Company will advise
the Representatives promptly as to the time at which the Registration
Statement becomes effective, will advise the Representatives promptly of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of any
proceedings for such purposes, and will use its best efforts to prevent the
issuance of any such stop order, and to obtain as soon as possible the
lifting thereof, if issued. The Company will advise the Representatives
promptly of the receipt of any comments of the Commission or any request by
the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for additional information and will not at
any time file any amendment to the Registration Statement or supplement to
the Prospectus which shall not previously have been submitted to the
Representatives a reasonable time prior to the proposed filing thereof or
to which the Representatives shall reasonably object in writing or which is
not in compliance with the Acts. The Company will advise the
Representatives promptly of receipt by the Company or any representative or
attorney of the Company of any other communication from the Commission
relating to (i) the Company, if received during the time a Prospectus
relating to the Shares is required to be delivered under the Securities
Act, or (ii) the Registration Statement, any Preliminary Prospectus, the
Prospectus or the transactions contemplated by this Agreement.
(b) The Company will promptly prepare and file with the Commission any
amendments or supplements to the Registration Statement or the Prospectus
which in the judgment of the Company or in the reasonable opinion of the
Representatives may be necessary to enable the several Underwriters to
continue the distribution of the Shares and will use its best efforts to
cause the same to become effective as promptly as possible.
(c) If at any time after the effective date of the Registration
Statement when a prospectus relating to the Shares is required to be
delivered under the Securities Act any event relating to or affecting the
Company or any of the Subsidiaries occurs as a result of which the
Prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Acts, the Company will
promptly notify the Representatives thereof and will prepare an
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amended or supplemented prospectus which will correct such statement or
omission; and in case any Underwriter is required to deliver a prospectus
relating to the Shares nine months or more after the effective date of the
Registration Statement in connection with the initial sale of any Shares
which such Underwriter purchased from the Company pursuant to this
Agreement, the Company upon the request of the Representatives but at the
expense of such Underwriter will prepare promptly such prospectus or
prospectuses as may be necessary to permit compliance with the requirements
of Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or before the
Closing Dates, copies of the Registration Statement as originally filed
with the Commission, and all amendments thereto including all financial
statements and exhibits thereto, and will deliver to the Representatives
such number of copies of the Registration Statement, including such
financial statements but without exhibits, and all amendments thereto, as
the Representatives may reasonably request. The Company will deliver or
mail to or upon the order of the Representatives, from time to time until
the effective date of the Registration Statement, as many copies of the
Preliminary Prospectus as the Representatives may reasonably request. The
Company will deliver or mail to or upon the order of the Representatives on
the date of the public offering, and thereafter from time to time during
the period when delivery of a prospectus relating to the Shares is required
under the Securities Act, as many copies of the Prospectus, in final form
or as thereafter amended or supplemented as the Representatives may
reasonably request.
(e) The Company will make generally available to its shareholders as
soon as practicable, but not later than 15 months after the effective date
of the Registration Statement, an earnings statement which will be in
reasonable detail (but which need not be audited) and which will comply
with Section 11(a) of the Securities Act, covering a period of at least 12
months beginning after the "effective date" (as defined in Rule 158 under
the Securities Act) of the Registration Statement.
(f) The Company will furnish to its shareholders annual reports
containing financial statements audited by independent certified public
accountants and with quarterly summary financial information in reasonable
detail which may be unaudited. During the period of five years from the
date hereof, the Company will deliver to the Representatives and, upon
request, to each of the other Underwriters, as soon as they are available,
copies of each annual report of the Company and each other report furnished
by the Company to its shareholders and will deliver to the Representatives,
(i) as soon as they are available, copies of any other reports (financial
or other) which the Company shall publish or otherwise make available to
its shareholders as such, (ii) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission
or any national securities exchange or the Nasdaq National Market and (iii)
from time to time such other information concerning the Company as the
Representatives may reasonably request. So long as the Company has active
subsidiaries, such financial statements will be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its shareholders generally. Separate
financial
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statements shall be furnished for all subsidiaries whose accounts are not
consolidated but which at the time are significant subsidiaries as defined
in the Securities Act Rules and Regulations.
(g) The Company will use its best efforts to cause the Shares to be
duly appropriate for quotation on the Nasdaq National Market prior to the
First Closing Date.
(h) The Company will maintain a transfer agent and registrar for its
Common Stock.
(i) The Company will not, without the prior written consent of Xxxxxx
Xxxx, offer, sell, assign, transfer, encumber, contract to sell, grant an
option to purchase or otherwise dispose of any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock
(including, without limitation, Common Stock of the Company which may be
deemed to be beneficially owned by the Company in accordance with the
Securities Act Rules and Regulations) during the 180 days following the
date of the Prospectus first filed pursuant to Rule 497(b), (c) or (h),
other than (i) the Company's sale of Shares hereunder and the Company's
issuance of Common Stock upon the exercise of stock options which are
outstanding on the First Closing Date or described in the Prospectus and
(ii) the Company's issuance of stock options which are described in the
Prospectus.
(j) The Company will apply the net proceeds from the sale of the Shares
as set forth in the description under the caption "Use of Proceeds" in the
Prospectus.
(k) The Company will supply the Representatives with copies of all
written correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Shares under the
Securities Act and the Nasdaq National Market.
(l) Prior to the Closing Dates, the Company will furnish to the
Representatives, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company and its
subsidiaries for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the
Prospectus.
(m) Prior to the Closing Dates, unless required under the Acts or the
Rules and Regulations, the Company will issue no press release or other
communications directly or indirectly and hold no press conference with
respect to the Company or any of its subsidiaries, the financial condition,
results of operation, business, prospects, assets or liabilities of any of
them, or the offering of the Shares, without the prior written consent of
the Representatives, which shall not be unreasonably withheld. For a
period of 12 months following the Closing Date, the Company will use its
best efforts to provide to the Representatives copies of each press release
or other public communications with respect to the financial condition,
results of operations, business, prospects, assets or liabilities of
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the Company [at least 24 hours prior to the public issuance thereof or such
longer advance period as may reasonably be practicable.]
(n) During the period of five years hereafter, the Company will furnish
to the Representatives, and upon request of the Representatives, to each of
the Underwriters, (i) as soon as practicable after the end of each fiscal
year, copies of the annual report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and statements of
income, shareholders' equity and cash flows for the year then ended and the
opinion thereon of the Company's independent certified public accountants,
(ii) as soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Report on Form 8-K or other report filed by the Company with the
Commission, or the Nasdaq National Market or any national securities
exchange, (iii) as soon as available, copies of any report or communication
of the Company mailed generally to holders of its Common Stock and (iv) all
public reports and all reports and financial statements furnished by the
Company to the Commission pursuant to the Investment Company Act and the
Investment Company Act Rules and Regulations thereunder.
5. Payment of Expenses. The Company will pay or cause to be paid
-------------------
(directly or by reimbursement) all costs, fees and expenses incurred in
connection with and expenses incident to the performance of the obligations of
the Company under this Agreement, as follows: (i) all expenses and taxes
incident to the issuance and delivery of the Shares to the Representatives, (ii)
all expenses incident to the registration of the Shares under the Securities
Act, (iii) the costs of preparing stock certificates (including printing and
engraving costs), (iv) all fees and expenses of the registrar and transfer agent
of the Shares, (v) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Shares to the Underwriters, (vi)
all fees and expenses of the Company's counsel and the Company's independent
certified public accountants, (vii) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of
the Registration Statement, each Preliminary Prospectus and the Prospectus
(including all exhibits and financial statements) and all amendments and
supplements provided for herein, the Master Agreement Among Underwriters between
the Representatives and the Underwriters, the Master Selected Dealer Agreement,
the Blue Sky memoranda and this Agreement, (viii) all filing fees, reasonable
attorneys' fees and expenses incurred by the Company or the Underwriters in
connection with exemptions from qualifying or registering (or obtaining
qualification or registration of) all or any part of the Shares for offer and
sale and determination of its eligibility for investment under the Blue Sky or
other securities laws of such jurisdictions as the Representatives may
designate, (ix) all fees and expenses paid or incurred in connection with
filings made with the NASD, (x) all fees and expenses paid or incurred in
connection with the listing of the Shares on the Nasdaq National Market and (xi)
all other costs, fees and expenses incurred by the Company incident to the
performance of the Company's obligations hereunder which are not otherwise
specifically provided for in this Section; provided that, except as provided in
Section 11, the Underwriters shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Shares which
they may sell, and the expenses of advertising any offering of the Shares made
by the Underwriters.
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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 the Shares), 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, the 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 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 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 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.
The foregoing indemnity agreement with respect to any Preliminary
Prospectus, Prospectus or Registration Statement shall not inure to the benefit
of any Underwriter (its officers and employees or any person who controls such
Underwriter within the meaning of the Securities Act) from whom the person
asserting any such loss, claims, damages or liabilities purchased Shares if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, at or prior to the written
confirmation of the sale of such Shares to such person and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability; provided, that the Company has complied with
--------
its obligation under subsection 4(d) of this Agreement to provide copies of the
Prospectus to the Representatives.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of its officers who signed the Registration
Statement, each of its directors, and each person, if any, who controls the
Company within the meaning of the Securities Act, from and
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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 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, the 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, 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 furnished to the
Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall promptly 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.
(c) Promptly after receipt by an indemnified party under this Section 6
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 6, 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 6 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 indemnified party otherwise than under this Section 6. 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 6 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
(x) 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 under this Section 6 if, in the
-17-
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 and (y)
the Company shall have the right to employ counsel to represent the Company, its
officers, directors, and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Company against the Underwriters under this Section 6 if, in the reasonable
judgment of the Company, it is advisable for the Company, its officers,
directors and controlling persons to be represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
Underwriters. In no event shall the Company or the Underwriters, as the case may
be, be liable for the fees and expenses of more than one such separate counsel
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. 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 (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.
(d) If the indemnification provided for in this Section 6 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) 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
on the one hand and the Underwriters on the other from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company 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 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
Shares purchased under this Agreement (after deducting expenses) received by the
Company, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under this
Agreement, on the other hand, bear to the total net proceeds from the offering
of the Shares 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 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 and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 6(d)
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
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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 6 shall be deemed to include, for purposes of this Section
6(d), 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 6(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares 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 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 6(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges
that the first sentence of the last paragraph on the cover page of the
Prospectus, concerning conditions of sale; the last three sentences of the
second paragraph under the caption "Underwriting" in the Prospectus, concerning
the terms of the offering by the Underwriters; and the eighth paragraph under
the caption "Underwriting" in the Prospectus, concerning accounts over which the
Underwriters exercise discretionary authority constitute the only information
furnished in writing to the Company through the Representatives by or behalf of
any Underwriter specifically for inclusion in the Registration Statement and
Prospectus.
7. Survival of Indemnities, Representations, Warranties, etc. The
----------------------------------------------------------
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by them respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement or any investigation made by or on behalf of any Underwriter,
the Company or any of its officers or directors or any controlling person, and
shall survive delivery of and payment for the Shares.
8. Conditions of Underwriters' Obligations. The respective obligations
---------------------------------------
of the several Underwriters hereunder shall be subject to the accuracy, at and
(except as otherwise stated herein) as of the date hereof and at and as of the
Closing Dates, of the representations and warranties made herein by the Company,
to compliance at and as of the Closing Dates by the Company with its covenants
and agreements herein contained and other provisions hereof to be satisfied at
or prior to the Closing Dates, and to the following additional conditions:
(a) The Registration Statement shall have become effective and no stop
order suspending the effectiveness thereof shall have been issued and no
proceedings for that purpose shall have been initiated or, to the knowledge
of the Company or the Representatives, shall be threatened by the
Commission, and any request for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the reasonable satisfaction
of the Representatives. Any filings of the Prospectus, or any supplement
thereto, required pursuant to Rule 497 or Rule 434 of the Securities Act
Rules and
-19-
Regulations, shall have been made in the manner and within the
time period required by Rule 497 and Rule 434 of the Securities Act Rules
and Regulations, as the case may be.
(b) There shall not have occurred any Material Adverse Effect or any
change in the investment objectives, investment policies, capital stock,
short-term or long-term debt of the Company and the Subsidiaries taken as a
whole, such that (i) the Registration Statement or the Prospectus, or any
amendment or supplement thereto, contains an untrue statement of fact
which, in the opinion of the Representatives, is material, or omits to
state a fact which, in the opinion of the Representatives, is required to
be stated therein or is necessary to make the statements therein not
misleading in any material respect or (ii) it is unpracticable in the
reasonable judgment of the Representatives to proceed with the public
offering or purchase the Shares as contemplated hereby.
(c) No legal or governmental action, suit or proceeding affecting the
Company which is material and adverse to the Company or which affects or
may affect the Company's ability to perform its obligations under this
Agreement shall have been instituted or threatened and there shall have
occurred no material adverse development in any existing such action, suit
or proceeding.
(d) At the time of execution of this Agreement, the Representatives
shall have received from Xxxxxx Xxxxxxxx LLP, independent certified public
accountants, a "cold comfort" letter, dated the date hereof, in form and
substance satisfactory to the Underwriters.
(e) The Representatives shall have received from Xxxxxx Xxxxxxxx LLP,
independent certified public accountants, letters, dated the Closing Dates,
to the effect that such accountants reaffirm, as of the Closing Dates, and
as though made on the Closing Dates, the statements made in the letter
furnished by such accountants pursuant to paragraph (f) of this Section 8.
(f) The Representatives shall have received from Xxxxxx & Dodge LLP,
counsel for the Company, an opinion, dated the Closing Dates, addressed to
the Underwriters (and stating that it may be relied upon by counsel to the
Underwriters) to the effect that:
(i) The Company and each of the Subsidiaries has been duly
incorporated and are validly existing and in good standing as
corporations under the laws of their respective jurisdictions of
incorporation and have the corporate power and authority to own or
lease their properties and to conduct their respective businesses as
described in the Prospectus. To such counsel's knowledge, the Company
and each of the Subsidiaries are duly qualified to do business and are
in good standing as foreign corporations in all jurisdictions where
their respective ownership or leasing of properties or the conduct of
their respective businesses requires such qualification, except where
the failure to be so qualified would not have a Material Adverse
Effect.
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(ii) The Company has full corporate power and authority to
enter into this Agreement and to issue, sell and deliver to the
Underwriters the Shares to be issued and sold hereunder. The Company
has full corporate power and authority to execute, deliver and perform
its obligations under each of the Acquisition Agreements.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Company has authorized and outstanding capital stock
as set forth under the caption "Capitalization" in the Prospectus; the
authorized shares of the Company's Common Stock have been duly
authorized; the outstanding shares of the Company's Common Stock have
been duly authorized and validly issued and are fully paid and
nonassessable; all of the Shares conform to the description thereof
contained in the Prospectus; the certificates for the Shares are in
due and proper form; the Shares have been duly authorized and will be
validly issued, fully paid and nonassessable when issued and paid for
as contemplated by this Agreement; and no preemptive rights of
stockholders exist with respect to any of the Shares or the issue or
sale thereof.
(v) To such counsel's knowledge, (a) there are no outstanding
securities of the Company or the Subsidiaries convertible or
exchangeable into or evidencing the right to purchase or subscribe for
any shares of capital stock of the Company or the Subsidiaries and
except as disclosed in the Prospectus, there are no outstanding or
authorized options, warrants or rights of any character obligating the
Company or the Subsidiaries to issue any shares of its capital stock
or any securities convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of such stock; and (b)
there is no holder of any securities of the Company or the
Subsidiaries or any other person who has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to them, or
to permit them to underwrite the sale of, any of the Shares or the
right to have any Common Stock or other securities of the Company
included in the Registration Statement or the right, as a result of
the filing of the Registration Statement, to require registration
under the Securities Act of any Common Stock or other securities of
the Company.
(vi) The Registration Statement and all post-effective
amendments thereto, if any, have become effective under the Securities
Act; any and all filings, if any, required by Rules 497, 434 and 430A
of the Securities Act Rules and Regulations have been made; and, to
the knowledge of such counsel, no stop order proceedings with respect
thereto have been instituted or are pending or threatened under the
Securities Act; any required filing of the Prospectus and any
supplement thereto pursuant to Rule 497 of the Securities Act Rules
and Regulations has been made in the manner and within the time period
required by Rule 497.
-21-
(vii) The Registration Statement and the Prospectus, and each
amendment or supplement thereto, comply as to form in all material
respects with the requirements of the Acts and the applicable rules
and regulations thereunder (except that such counsel need express no
opinion as to the financial statements and related schedules or
financial and statistical data included therein).
(viii) Such counsel knows of no material legal or governmental
proceedings pending or threatened against the Company or any of the
Subsidiaries.
(ix) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will
not result in a breach or violation of any of the terms or provisions
of, or constitute a default under, the charter, by-laws or other
organizational documents of the Company or the Subsidiaries, or any
agreement or instrument filed as an exhibit to the Registration
Statement to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries may be bound, or,
to such counsel's knowledge, any order of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of their respective properties except to the
extent that any such conflict, breach, violation or default would not
have a Material Adverse Effect.
(x) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution
and delivery of this Agreement and the consummation of the
transactions herein contemplated (other than as may be required by the
SBA, the NASD or as required by state securities and Blue Sky laws or
regulations, as to which such counsel need express no opinion) except
such as have been obtained or made.
(xi) The Company has duly elected to be treated under the
Investment Company Act as a business development company and all
required action has been taken by the Company under the Acts to make
the public offering and consummate the sale of the Shares as provided
in this Agreement; the provisions of the corporate charter and by-laws
of the Company and the Subsidiaries and the investment policies and
restrictions described in the Prospectus comply with the requirements
of the Investment Company Act.
(xii) The Shares are duly approved, subject to official notice
of issuance, for quotation on the Nasdaq National Market and a
registration statement has been filed pursuant to Section 12 of the
Exchange Act for the Shares and has been declared effective.
In rendering such opinion Xxxxxx & Dodge LLP may (i) as to matters
governed by the laws of states or jurisdictions other than the Commonwealth
of Massachusetts or the General Corporation Law of the State of Delaware,
render such opinion as if the laws of
-22-
the Commonwealth of Massachusetts governed, (ii) rely as to matters
governed by the SBIA and the rules, regulations, policies and procedures of
the SBA, on the opinion of Xxxx & Priest LLP, and (iii) rely as to matters
of fact, upon certificates of officers of the Company, provided that copies
of such opinion and certificates are provided to the Representatives. In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that (i) the Registration Statement, or
any amendment thereto (except as to the financial statements and related
schedules or financial and statistical data included therein, with respect
to which such counsel need express no belief), as of the time it became
effective under the Securities Act, as of the First Closing Date or the
Option Closing Date, as applicable, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and (ii) the Prospectus, or any supplement thereto, on the
date it was filed pursuant to the Securities Act Rules and Regulations and
as of the First Closing Date or the Option Closing Date, as applicable,
contained or contains, an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements,
in the light of the circumstances under which they are made, not misleading
(except that such counsel need express no belief as to financial statements
and related schedules or financial and statistical data included therein).
With respect to such statement, Xxxxxx & Dodge LLP may state that their
belief is based upon the procedures set forth therein, but is without
independent check and verification.
(g) The Representatives shall have received from Xxxxxxx Xxxx &
Xxxxxxxxx, counsel for the Underwriters, their opinion or opinions dated
the First Closing Date with respect to the incorporation of the Company,
the validity of the Shares, the Registration Statement and the Prospectus
and such other related matters as they may reasonably request, and the
Company shall have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such matters. In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that (i) the Registration Statement, or
any amendment thereto (except as to the financial statements and related
schedules or financial data included therein, with respect to which such
counsel need express no belief), as of the time it became effective under
the Securities Act, as of the First Closing Date or the Option Closing
Date, as applicable, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (ii) the Prospectus, or any supplement thereto, on the date it was
filed pursuant to the Securities Act Rules and Regulations and as of the
First Closing Date or the Option Closing Date, as applicable, contained or
contains, an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements, in the
light of the circumstances under which they are made, not misleading
(except that such counsel need express no belief as to financial statements
and related schedules or financial data included therein). With respect to
such statement, Xxxxxxx Xxxx & Xxxxxxxxx may state that their belief is
based upon the procedures set forth therein, but is without independent
check and verification.
-23-
(h) The Representatives shall have received a certificate, dated the
Closing Dates, of the chief executive officer or the President and the
chief financial or accounting officer of the Company to the effect that:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued, and, to the best of the
knowledge of the signers, no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act;
(ii) Neither any Preliminary Prospectus, as of its date, nor
the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, as of the respective times when the Registration
Statement became effective and at all times subsequent thereto up to
the delivery of such certificate, included any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading;
(iii) The representations and warranties of the Company in this
Agreement are true and correct at and as of the Closing Dates, and the
Company has complied with all the agreements and performed or
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Dates; and
(iv) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) neither
the Company nor any of the Subsidiaries has incurred any material
liabilities or obligations, direct or contingent, or entered into any
other transactions not in the ordinary course of business, (ii) there
has not been any material adverse change in the condition (financial
or otherwise), properties, business, management, prospects, net worth,
capital stock, investment objectives, investment policies or results
of operations of the Company and the Subsidiaries taken as a whole, or
any change in the capital stock, or material change in the short-term
or long-term debt, of the Company and the Subsidiaries taken as a
whole and (iii) there has been no dividend or distribution of any kind
declared, paid or made by the Company or the Subsidiaries on any class
of their respective capital stock.
(i) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably
requested as to the accuracy, at and as of the Closing Dates, of the
representations and warranties made herein by it and as to compliance at
and as of the Closing Dates by it with its covenants and agreements herein
contained and other provisions hereof to be satisfied at or prior to the
Closing Dates, and as to satisfaction of the other conditions to the
obligations of the Underwriters hereunder.
(j) The Representatives shall have received the written agreements of
the officers, directors and holders of Common Stock listed on Schedule II
that each will not, except as
-24-
stated therein, offer, sell, assign, transfer, encumber, contract to sell,
grant an option to purchase or otherwise dispose of any shares of Common
Stock (including, without limitation, Common Stock of the Company which may
be deemed to be beneficially owned by such persons in accordance with the
Securities Act Rules and Regulations) during the period of time specified
in Schedule II following the date of the Prospectus first filed pursuant to
Rule 497(b), (c) or (h), without the prior written consent of Xxxxxx Xxxx.
All opinions, certificates, letters and other documents will be in
compliance with the provisions hereunder only if they are reasonably
satisfactory in form and substance to the Representatives. The Company will
furnish to the Representatives conformed copies of such opinions, certificates,
letters and other documents as the Representatives shall reasonably request. If
any of the conditions hereinabove provided for in this Section shall not have
been satisfied when and as required by this Agreement, this Agreement may be
terminated by the Representatives by notifying the Company of such termination
in writing at or prior to the Closing Dates, but Xxxxxx Xxxx shall be entitled
to waive any of such conditions on behalf of the Underwriters.
9. Effective Date. This Agreement shall become effective immediately
--------------
as to Sections 5, 6, 7, 9, 10, 11, 13, 14, 15, 16 and 17 and, as to all other
provisions, at 11:00 a.m. New York City time on the first full business day
following the effectiveness of the Registration Statement or at such earlier
time after the Registration Statement becomes effective as the Representatives
may determine on and by notice to the Company or by release of any of the Shares
for sale to the public. For the purposes of this Section 9, the Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon written notice from the
Representatives (i) advising Underwriters that the Shares are released for
public offering or (ii) offering the Shares for sale to securities dealers,
whichever may occur first.
10. Termination. This Agreement (except for the provisions of
-----------
Section 5) may be terminated by the Company at any time before it becomes
effective in accordance with Section 9 by notice to the Representatives and may
be terminated by the Representatives at any time before it becomes effective in
accordance with Section 9 by notice to the Company. In the event of any
termination of this Agreement under this or any other provision of this
Agreement, there shall be no liability of any party to this Agreement to any
other party, other than as provided in Sections 5, 6 and 11 and other than as
provided in Section 12 as to the liability of defaulting Underwriters.
This Agreement may be terminated after it becomes effective by the
Representatives by notice to the Company (i) if at or prior to the First Closing
Date or, as relates to the Option Shares only, prior to any Option Closing Date
trading in securities generally or on the Nasdaq National Market shall have been
suspended or minimum prices shall have been established on such market, or a
banking moratorium shall have been declared by New York or United States
authorities, (ii) if at or prior to the First Closing Date or any Option Closing
Date there shall have been (A) a major outbreak or significant escalation of
hostilities between the United States and any foreign power or any other
insurrection or armed conflict involving the United States or (B) any material
adverse change in financial markets or any calamity or crisis which, in the
judgment of the Representatives, makes it impractical or inadvisable to offer or
sell
-25-
the Firm Shares or Option Shares, as applicable, on the terms contemplated
by the Prospectus, (iii) if there shall be any litigation or proceeding, pending
or threatened to which the Company is a party, which in the reasonable judgment
of the Representatives, makes it impracticable to offer or deliver the Firm
Shares or Option Shares, as applicable, on the terms contemplated by the
Prospectus or (iv) if there shall have occurred any of the events specified in
the immediately preceding clauses (i) - (iii) together with any other such event
that makes it, in the judgment of the Representatives, impracticable to offer or
deliver the Firm Shares or Option Shares, as applicable, on the terms
contemplated by the Prospectus.
11. Reimbursement of Underwriters. Notwithstanding any other provisions
-----------------------------
hereof, if this Agreement shall not become effective by reason of any election
of the Company pursuant to the first paragraph of Section 10 or shall be
terminated by the Representatives under Section 8 or Section 10, the Company
will bear and pay the expenses specified in Section 5 hereof and, in addition to
its obligations pursuant to Section 6 hereof, the Company will reimburse the
reasonable out-of-pocket expenses of the several Underwriters (including
reasonable fees and disbursements of counsel for the Underwriters) incurred in
connection with this Agreement and the proposed purchase of the Shares, and
promptly upon demand the Company will pay such amounts to you as
Representatives.
12. Substitution of Underwriters. If any Underwriter or Underwriters
----------------------------
shall default in its or their obligations to purchase Shares hereunder and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of Shares
underwritten, the other Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed to purchase. If any
Underwriter or Underwriters shall so default and the aggregate number of Shares
with respect to which such default or defaults occur is more than 10% of the
total number of Shares underwritten and arrangements satisfactory to the
Representatives and the Company for the purchase of such Shares by other persons
are not made within 48 hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the Shares of a defaulting Underwriter
or Underwriters as provided in this Section 12, (i) the Company shall have the
right to postpone the Closing Dates for a period of not more than five full
business days in order that the Company may effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus which
may thereby be made necessary, and (ii) the respective numbers of Shares to be
purchased by the remaining Underwriters or substituted Underwriters shall be
taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
its liability to the Company or the other Underwriters for damages occasioned by
its default hereunder. Any termination of this Agreement pursuant to this
Section 12 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 6.
-26-
13. Notices. All communications hereunder shall be in writing and, if
--------
sent to the Underwriters shall be mailed, delivered or telecopied and confirmed
to the Representatives c/o Xxxxxx Xxxx LLC at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (telecopier no.: (000) 000-0000), Attention: Xxxxxx X. Xxxx, except
that notices given to an Underwriter pursuant to Section 6 hereof shall be sent
to such Underwriter at the address furnished by the Representatives or, if sent
to the Company, shall be mailed, delivered or telecopied and confirmed at 000
Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 (telecopier no.: (212)
983-0351), Attention: Xxxxx Xxxxxxxx, with a copy to Xxxxxx & Dodge LLP, Xxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (telecopier no.: (000) 000-0000),
Attention: Xxxxxxx Xxxxxx, Esq.
14. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who control any
Underwriter or Underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and the indemnities of the several
Underwriters shall also be for the benefit of each director of the Company, each
of its officers who has signed the Registration Statement and the person or
persons, if any, who control the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act.
15. Applicable Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of New York.
16. Authority of the Representatives. In connection with this
--------------------------------
Agreement, the Representatives will act for and on behalf of the several
Underwriters, and hereby represent that they are authorized so to act, and any
action taken under this Agreement by the Representatives, will be binding on all
the Underwriters.
17. Partial Unenforceability. The invalidity or unenforceability of
------------------------
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
18. General. This Agreement constitutes the entire agreement of the
-------
parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof.
-27-
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and the Representatives.
19. Counterparts. This Agreement may be signed in two or more
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
-28-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between us.
Very truly yours,
MEDALLION FINANCIAL CORP.
By:
-------------------------------
Name:
Title:
Accepted and delivered as of
the date first above written:
XXXXXX XXXX LLC
BEAR, XXXXXXX & CO. INC.
EVEREN SECURITIES, INC.
X.X. XXXXXXXX & CO.
Acting on their own behalf
and as Representatives of the several
Underwriters referred to in the
foregoing Agreement.
By: Xxxxxx Xxxx LLC
By:
----------------------------
Name:
Title:
SCHEDULE I
Number Number of
of Firm Option
Shares Shares
to be to be
Name Purchased Purchased
----- --------- -------------
Xxxxxx Xxxx LLC...........
Bear, Xxxxxxx & Co. Inc...
X.X. Xxxxxxxx & Co........
EVEREN Securities, Inc....
________ ------------
Total..................... 3,500,000
=========
SCHEDULE II
Party to Lock-up Agreement Period
Xxxxx Xxxxxxxx *
---------
Xxxxxx Xxxxxxxx *
---------
Xxxxx Xxxxx 90 days
Xxxxxx X. Xxxxx 90 days
Xxxxxxx Xxxxxx 90 days
Xxxxxxx X. Xxxxxxxx 90 days
Xxxxxxx Xxxxxx 90 days
Xxxxx X. Xxxxx 90 days
Xxxxxxx Xxxxxxxx 90 days
Xxxxx X. Xxxxxxx 90 days
Xxxxxxxx Xxxx 90 days
Xxxxx Xxxxxxxx Second Family Trust *
---------
Xxxxxx Xxxxxxxx Family Trust *
---------
____________________________
* Shares owned by Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, the Xxxxx Xxxxxxxx
Second Family Trust and the Xxxxxx Xxxxxxxx Family Trust are subject
to previously executed Lock-up Agreements which expire on until May 2,
1998.
