CACHE, INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
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UNDERWRITING AGREEMENT
November 15, 2006
Xxxxxx Xxxxxx Partners LLC
Xxxxx Xxxxxxx & Co.
As representatives of the Underwriters
named in Schedule I hereto,
c/o Thomas Xxxxxx Partners LLC
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Subject to the terms and conditions stated herein, (i) Cache, Inc., a
Florida corporation ("Company"), proposes to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 200,000 shares
of common stock, par value $0.01 per share ("Common Stock") of the Company, and
(ii) certain stockholders of the Company named in Schedule II hereto (the
"Selling Stockholders") severally propose to sell to the Underwriters an
aggregate of 1,675,000 shares of Common Stock, with each Selling Stockholder
selling the number of shares set forth opposite such Selling Stockholder's name
in the column "Total Number of Firm Shares to be Sold" in Schedule II hereto
(the shares referred to in clauses (i) and (ii) collectively, "Firm Shares"). At
the election of the Underwriters, the Company proposes to issue and sell, and
certain Selling Stockholders propose to sell, subject to the terms and
conditions stated herein, to the Underwriters up to 281,250 additional shares of
Common Stock (the "Optional Shares"), with the Company and each of such Selling
Stockholders selling the number of shares set forth opposite such Selling
Stockholder's name in the column "Number of Optional Shares to be Sold if
Maximum Option Exercised" in Schedule II hereto. The Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares".
1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-134435) and
pre-effective Amendment No. 1 and Amendment No. 2 thereto (collectively, the
"Initial Registration Statement") in respect of the Shares have been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you for
each of the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement (other than the preliminary prospectus filed with the
Commission pursuant to Rule 424(a) on November 8, 2006) has heretofore been
filed with the Commission; and no stop order suspending the effectiveness of the
Initial
Registration Statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or, to the knowledge of the Company, threatened
by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act is hereinafter called
a "Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 6(a) hereof and deemed by virtue of Rule 430A under the
Act to be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; the Preliminary Prospectus
relating to the Shares that was included in the Registration Statement
immediately prior to the Applicable Time (as defined in Section 1(a)(iii)
hereof) together with each "issuer free writing prospectus" as defined in Rule
433 under the Act relating to the Shares (an "Issuer Free Writing Prospectus")
that is identified on Schedule III hereto and the other information set forth on
Schedule IV hereto, is hereinafter called the "Pricing Prospectus"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under the Act,
is hereinafter called the "Prospectus");
All references in this Agreement to financial statements and schedules and
other information which are "contained," "included, " "set forth" or "stated" in
the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are or are deemed to be incorporated by reference in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, as the case may be (except for any financial statements and
schedules and other information incorporated or deemed to be incorporated
therein by reference to the extent modified or superseded by any financial
statements, schedules or other information included in the Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus); and all references in this Agreement to amendments or supplements
to the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which is or is deemed to be incorporated by reference in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, as the case may be (subject to the above exception for modified
or superseded financial statements, schedules and other information);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxx Xxxxxx Partners LLC and
Xxxxx Xxxxxxx & Co. expressly for use therein;
(iii) For the purposes of this Agreement, the "Applicable Time" is
5:30 p.m. (Eastern time) on the date of this Agreement. The Pricing Prospectus,
as of the Applicable Time, did not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not
misleading; and each Issuer Free Writing Prospectus listed on Schedule III
hereto does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Pricing
Prospectus as of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxx Xxxxxx Partners LLC and
Xxxxx Xxxxxxx & Co. expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxx Xxxxxx Partners LLC and Xxxxx
Xxxxxxx & Co. expressly for use therein;
(v) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, when they became effective or were filed with the
Commission, as the case may be, complied in all material respects with the
requirements of the Act or the Exchange Act, and, with the exception of
information in such incorporated documents that was modified or superseded by
information in the Prospectus, when read together with (and as modified by) the
other information in the Prospectus, at the time the Registration Statement and
any amendments become effective or were filed with the Commission, as the case
may be, will not contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(vi) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus, except for such
loss or interference as would not, individually or in the aggregate, have a
material adverse effect on the business, prospects, operations, assets,
condition (financial or otherwise), members' or stockholders' equity (as
applicable) or results of operations of the Company and its consolidated
subsidiaries taken as a whole (a "Material Adverse Effect"); and, since the
respective dates as of which information is given in the Registration Statement
and the Pricing Prospectus, (A) there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, prospects, operations, assets,
condition (financial or otherwise) or results of operations of the Company and
its consolidated subsidiaries taken as a whole, (B) (ii) the Company and its
subsidiaries, considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business; and (C) there has been no dividend or distribution
of any kind declared, paid or made by the Company or, except for dividends paid
to the Company or other subsidiaries, any of its subsidiaries on any class of
capital stock or repurchase or
redemption by the Company or any of its subsidiaries of any class of capital
stock, in each case, other than as set forth or contemplated in the Pricing
Prospectus;
(vii) Neither the Company nor any of its subsidiaries owns any real
property. The Company and its subsidiaries have good and marketable title to all
personal property owned by them which is material to the business of the Company
and its subsidiaries, free and clear of all liens, encumbrances and defects
except such as are described in the Pricing Prospectus or such as would not
cause a Material Adverse Effect and do not interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as would not cause a Material Adverse Effect and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, except as would not have a
Material Adverse Effect;
(viii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Florida, with
corporate power and authority to own its properties and conduct its business as
described in the Pricing Prospectus, and is duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a Material Adverse Effect;
(ix) Each subsidiary of the Company has been duly formed, incorporated
or organized and is validly existing and in good standing under the laws of its
jurisdiction of formation, incorporation or organization; and each subsidiary of
the Company has been duly qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of each other jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect;
(x) The Company has an authorized capitalization as set forth in the
Pricing Prospectus, and all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and are validly issued, fully
paid and non-assessable, and have been issued in compliance with federal and
state securities laws and conform in all material respects to the description of
the capital stock set forth in the Pricing Prospectus and the Prospectus; and
all of the shares of capital stock of each subsidiary of the Company have been
duly authorized and are validly issued, fully paid and non-assessable, have been
issued in compliance with federal and state securities laws and are owned
directly by the Company, free and clear of all liens, encumbrances, equities or
claims, except to such extent as would not, individually or in the aggregate,
have a Material Adverse Effect. None of the outstanding shares of capital stock
of the Company were issued in violation of any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase securities of
the Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or exercisable for,
any capital stock of the Company or any of its subsidiaries other than those
accurately described in the Pricing Prospectus. The description of the Company's
stock option, stock bonus and other stock plans or arrangements, and the options
or other rights granted thereunder, set forth in the Pricing Prospectus
accurately and fairly presents the information required to be shown therein with
respect to such plans, arrangements, options and rights;
(xi) This Agreement has been duly authorized, executed and delivered
by the Company, and is a valid and binding agreement of the Company, enforceable
in accordance with its terms, except as rights to indemnification or
contribution hereunder may be limited by applicable law or the public policy
underlying such law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles;
(xii) The Shares to be sold by the Company have been duly authorized
and, when issued and delivered against payment therefor as provided herein, will
validly issued, fully paid and non-assessable and will conform in all material
respects to the description of Common Stock set forth in the Pricing Prospectus
and the Prospectus. The Shares to be sold by the Selling Stockholders have been
duly authorized, are validly issued, fully paid and non-assessable and conform
in all material respects to the description of Common Stock set forth in the
Pricing Prospectus and the Prospectus;
(xiii) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement other than as described in the
Registration Statement or as have been satisfied, or waived in writing, in
connection with the offering contemplated hereby;
(xiv) The issue and sale of the Shares to be sold by the Company and
the compliance by the Company with all of its obligations under this Agreement
and the consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give rise to a right of termination under any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, except
for such conflicts, breaches, defaults, violations or rights as would not,
individually or in the aggregate, have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the Articles of
Incorporation or By-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties;
(xv) No consent, approval, authorization, order, registration,
qualification, permit, license, exemption, filing or notice (each an
"Authorization") of, from, with or to any court, tribunal, government,
governmental or regulatory authority, self-regulatory organization or body
(each, a "Regulatory Body") is required for the issue and sale of the Shares by
the Company or, to the Company's knowledge, the Selling Stockholders or the
consummation by the Company of the transactions contemplated by this Agreement,
except (A) the registration of the Shares under the Act; (B) such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters; (C) such Authorizations as may
be required under the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD"); and (D) such other Authorizations the
absence of which would not, individually or in the aggregate, have a Material
Adverse Effect; and no event has occurred that has resulted in, or that would
reasonably be expected to result in, revocation, suspension, termination or
invalidation of any such Authorization or any other impairment of the rights of
the holder or maker of any such Authorization;
(xvi) All corporate approvals (including those of stockholders)
necessary for the Company to consummate the transactions contemplated by this
Agreement have been obtained and are in effect;
(xvii) Neither the Company nor any of its subsidiaries is (A) in
violation of its Certificate of Incorporation or By-laws or other organizational
documents or (B) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except for such
defaults specified under subparagraph (B) herein that would not, individually or
in the aggregate, have a Material Adverse Effect;
(xviii) The statements set forth in the Pricing Prospectus and the
Prospectus under the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Common Stock, and under the
caption "Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are fair and accurate, and complete
in all material respects;
(xix) Other than as set forth in the Pricing Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, could reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect; and, to the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(xx) There are no statutes, regulations, contracts or other documents
that are required to be described in the Pricing Prospectus and no contracts or
other documents required to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described or filed or incorporated as
required;
(xxi) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof, will not be an
"investment company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(xxii) At the time of filing the Initial Registration Statement, the
Company was not an "ineligible issuer," as defined in Rule 405 under the Act;
(xxiii) Deloitte & Touche LLP and KPMG LLP, who have audited certain
financial statements of the Company and its subsidiaries, are independent
registered public accounting firms as required by the Act and the rules and
regulations of the Commission thereunder;
(xxiv) The consolidated financial statements of the Company and its
subsidiaries (including all notes and schedules thereto) included in the
Registration Statement, the Pricing Prospectus and Prospectus present fairly the
consolidated financial position of the Company and its consolidated subsidiaries
at the dates indicated and the statement of income, stockholders' equity and
cash flows of the Company and its subsidiaries for the periods specified in
conformity with generally accepted accounting principles, consistently applied
throughout the periods involved, other than as may be expressly stated in the
related notes thereto; no other financial statements or supporting schedules are
required to be included in the Registration Statement; and the summary and
selected financial data and financial data set forth under the captions
"Prospectus Summary - Summary Consolidated Financial Data," "Capitalization" and
"Selected Consolidated Financial Data" included in the Registration
Statement, the Pricing Prospectus and the Prospectus present fairly the
information shown therein as at the respective dates and for the respective
periods specified and are derived from the consolidated financial statements set
forth in the Registration Statement, the Pricing Prospectus and the Prospectus
and other financial information;
(xxv) Except as disclosed in the Registration Statement, the Pricing
Prospectus and the Prospectus, the Company maintains a system of internal
control over financial reporting (as such term is defined in Rule 13a-15(f)
under the Exchange Act) that complies with the requirements of the Exchange Act
and has been designed by the Company's principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted
accounting principles. Except as disclosed in the Registration Statement, the
Pricing Prospectus and the Prospectus, the Company's internal control over
financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(xxvi) Since the date of the latest audited financial statements of
the Company included in the Pricing Prospectus, there has been no change in the
Company's internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company's internal
control over financial reporting (other than as set forth in the Pricing
Prospectus);
(xxvii) Except as disclosed in the Registration Statement, the Pricing
Prospectus and the Prospectus, the Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act)
that comply with the requirements of the Exchange Act. Such disclosure controls
and procedures (A) are designed to ensure that material information relating to
the Company and its subsidiaries is made known to the Company's principal
executive officer and principal financial officer by others within those
entities; (B) have been evaluated for effectiveness as of September 30, 2006;
and (C) are effective to perform the functions for which they were established;
(xxviii) No relationship, direct or indirect, exists between or among
the Company, on the one hand, and any director, officer, stockholder, customer
or supplier of the Company, on the other hand, which is required to be described
in the Registration Statement, the Pricing Prospectus or the Prospectus and
which is not so described. There are no outstanding loans, advances or
guarantees of indebtedness by the Company to or for the benefit of any of the
executive officers or directors of the Company, except as disclosed in the
Registration Statement, the Pricing Prospectus and the Prospectus;
(xxix) To the knowledge of the Company, no person associated with or
acting on behalf of the Company, including without limitation any director,
officer, agent or employee of the Company or its subsidiaries has, directly or
indirectly, while acting on behalf of the Company or its subsidiaries (A) used
any corporate funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity, (B) made any unlawful payment
to foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds, (C) violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended or (D) made
any other unlawful payment;
(xxx) Except as contemplated by this Agreement and as disclosed in the
Registration Statement, the Pricing Prospectus and the Prospectus, no person is
entitled to receive from the Company a brokerage commission, finder's fee or
other like payment in connection with the transactions contemplated herein;
(xxxi) Neither the Company nor any of its subsidiaries or controlled
affiliates does business with the government of, or with any person located in
any country in a manner that violates in any material respect any of the
economic sanctions programs or similar sanctions-related measures of the United
States as administered by the United States Treasury Department's Office of
Foreign Assets Control; and the net proceeds from the offering contemplated by
this Agreement will not be used to fund any operations in, finance any
investments in or make any payments to any country, or to make any payments to
any person, in a manner that violates any of the economic sanctions of the
United States administered by the United States Treasury Department's Office of
Foreign Assets Control;
(xxxii) Neither the Company nor any of its subsidiaries or controlled
affiliates does business with the government of Cuba or with any person located
in Cuba within the meaning of Section 517.075, Florida Statutes;
(xxxiii) No material labor dispute with the employees of the Company
or any of its subsidiaries exists, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors other than as would not cause a Material Adverse
Effect;
(xxxiv) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective business, other
than those the failure of which to possess would not cause a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would cause a
Material Adverse Effect;
(xxxv) The Company and its subsidiaries (A) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (B) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (C) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate, have a
Material Adverse Effect. There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) which
would, individually or in the aggregate, have a Material Adverse Effect;
(xxxvi) The Company and its subsidiaries own or possess all material
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
cause a Material Adverse Effect;
(xxxvii) The Company and its subsidiaries are insured by the 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; and
neither the Company nor any of its subsidiaries has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect;
(xxxviii) The Company has not taken and will not take,
directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of the Shares or which is
otherwise prohibited by Regulation M under the Act;
(xxxix) The Company and its subsidiaries have filed all necessary
federal and state income and franchise tax returns or have received extensions
thereof and have paid all taxes shown on such returns to be required to be paid
by any of them and, if due and payable, any related or similar assessment, fine
or penalty levied against any of them except for any assessment, fine or penalty
that is currently being contested in good faith. The Company has made adequate
charges, accruals and reserves in the applicable financial statements referred
to in paragraph 1(a)(xxiv) above in respect of all federal and state income and
franchise taxes for all periods as to which the tax liability of the Company or
any of its subsidiaries has not been finally determined. The Company has no
knowledge of any tax deficiency which might be asserted against the Company or
any subsidiary which could reasonably be expected to result in a Material
Adverse Effect;
(xl) The Common Stock (including the Shares) is registered pursuant to
Section 12(g) of the Exchange Act and is listed on the NASDAQ Global Select
Market, and the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act or delisting the Common Stock from the NASDAQ Global Select Market, nor has
the Company received any notification that the Commission or the NASD is
contemplating terminating such registration or listing;
(xli) The Company and its subsidiaries and any "employee benefit plan"
(as defined under the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, its
subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations described in
Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (the "Code") of
which the Company or such subsidiary is a member. No "reportable event" (as
defined under ERISA) has occurred or is reasonably expected to occur with
respect to any "employee benefit plan" established or maintained by the Company,
its subsidiaries or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan" were terminated, would have any
"amount of unfunded benefit liabilities" (as defined under ERISA). Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification; and
(xlii) There is and has not been any failure on the part of the
Company or any of the Company's directors or officers, in their capacities as
such, to comply with any provision of the Sarbanes Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith (the "Xxxxxxxx-Xxxxx
Act"), including Section 402 related to loans and Sections 302 and 906 related
to certifications.
(b) Each of the Selling Stockholders, severally and not jointly, represents
and warrants to, and agrees with, each of the Underwriters that:
(i) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder, and assuming due authorization,
execution and delivery by the other parties hereto, is a valid and binding
agreement of such Selling Stockholder, enforceable in accordance with its terms,
except as rights to indemnification and contribution hereunder may be limited by
applicable law or the public policies underlying such law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles. The Custody Agreement
and the Power of Attorney (each as hereinafter defined) have been duly
authorized, executed and delivered by such Selling Stockholder (or by a duly
authorized representative thereof) and, assuming due authorization, execution
and delivery by the other parties hereto, are valid and binding agreements of
such Selling Stockholder enforceable in accordance with their respective terms,
except as rights to indemnification and contribution thereunder may be limited
by applicable law or the public policies underlying such law and except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles;
(ii) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement and the
Power of Attorney and the Custody Agreement, and for the sale and delivery of
the Shares to be sold by such Selling Stockholder hereunder, have been obtained,
except (A) the registration of the Shares under the Act; (B) such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters; (C) such Authorizations as may
be required under the rules and regulations of the NASD; and (D) such other
Authorizations the absence of which would not have an adverse effect on the
ability of such Selling Stockholder to perform such Selling Stockholder's
obligations under this Agreement; and such Selling Stockholder has full right,
power and authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder hereunder;
(iii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with such Selling
Stockholder's obligations under this Agreement, the Power of Attorney and the
Custody Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the property or assets of such Selling Stockholder is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of such Selling Stockholder if such
Selling Stockholder is a corporation, or any other organizational and/or
governing document of such Selling Stockholder if such Selling Stockholder is
not a natural person, or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder, in
each case except for such conflicts, breaches, defaults or violations that would
not have an adverse effect on the ability of such Selling Stockholder to perform
its obligations under this Agreement;
(iv) The Shares to be sold by such Selling Stockholder pursuant to
this Agreement have been duly authorized and are validly issued, fully paid and
non assessable;
(v) Such Selling Stockholder has, and immediately prior to each Time
of Delivery (as defined in Section 4 hereof) such Selling Stockholder will have,
good and valid title to the Shares to be sold by such Selling Stockholder
hereunder, free and clear of all liens, encumbrances, equities or claims; and,
upon delivery of such Shares and payment therefor pursuant hereto, good and
valid title to such Shares, free and clear of all liens, encumbrances, equities
or claims, will pass to the several Underwriters;
(vi) Such Selling Stockholder does not have any right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company or to require the Company to include such securities
with the Shares registered pursuant to the Registration Statement other than as
described in the Registration Statement or as have been satisfied, or waived in
writing by such Selling Stockholder, in connection with the offering
contemplated hereby;
(vii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares or which is otherwise prohibited by Regulation M under
the Act;
(viii) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the
Prospectus or any amendment or supplement thereto are made in reliance upon and
in conformity with written information furnished to the Company by such Selling
Stockholder expressly for use therein, such Preliminary Prospectus, Pricing
Prospectus and the Registration Statement did not, and the Prospectus and any
further amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the Commission, as the
case may be, will not 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 not misleading;
(ix) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated, such Selling
Stockholder will deliver to you prior to or at the First Time of Delivery (as
defined in Section 4) a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(x) Certificates in negotiable form representing all of the Shares to
be sold by such Selling Stockholder hereunder have been (i) placed in custody
under a Custody Agreement, in the form heretofore furnished to you, or (ii)
placed in a Xxxxxx Xxxxxx Partners brokerage account under a Xxxxxx Xxxxxx
Partners standard customer account agreement, in the form heretofore furnished
to you (the applicable agreement referred to in clause (i) or (ii), the "Custody
Agreement"), duly executed and delivered by such Selling Stockholder to
Continental Stock Transfer & Trust Co., as custodian, or Xxxxxx Xxxxxx Partners,
as applicable (the "Custodian"), and such Selling Stockholder has duly executed
and delivered a Power of Attorney, in the form heretofore furnished to you (the
"Power of Attorney"), appointing the persons indicated in Schedule II hereto,
and each of them, as such Selling
Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to
execute and deliver this Agreement on behalf of such Selling Stockholder, to
determine the purchase price to be paid by the Underwriters to the Selling
Stockholders as provided in Section 2 hereof, to authorize the delivery of the
Shares to be sold by such Selling Stockholder hereunder and otherwise to act on
behalf of such Selling Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement;
(xi) The Shares represented by the certificates held in custody for
such Selling Stockholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder; the arrangements made by such Selling
Stockholder for such custody, and the appointment by such Selling Stockholder of
the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable;
the obligations of the Selling Stockholders hereunder shall not be terminated by
operation of law, whether by the death or incapacity of any individual Selling
Stockholder or, in the case of an estate or trust, by the death or incapacity of
any executor or trustee or the termination of such estate or trust, or in the
case of a partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if any individual Selling
Stockholder or any such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if any such partnership
or corporation should be dissolved, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of the Selling Stockholders in
accordance with the terms and conditions of this Agreement and of the Custody
Agreements; and actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of
such death, incapacity, termination, dissolution or other event; and
(xii) Such Selling Stockholder (other than the Jewish Communal Fund)
has no reason to believe that the representations and warranties of the Company
contained in Section 1(a) hereof are not true and correct. Such Selling
Stockholder (other than the Jewish Communal Fund) is familiar with the
Registration Statement, the Pricing Prospectus and the Prospectus and has no
knowledge of any material fact, condition or information not disclosed in the
Registration Statement, the Pricing Prospectus or the Prospectus which has had
or would reasonably be expected to have a Material Adverse Effect and is not
prompted to sell any of the Shares by any information concerning the Company
which is not set forth in the Registration Statement, the Pricing Prospectus and
the Prospectus.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Selling Stockholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Stockholders,
at a purchase price per share of $21.5841, the number of Firm Shares (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
the aggregate number of Firm Shares to be sold by the Company and each of the
Selling Stockholders as set forth opposite their respective names in the column
"Total Number of Firm Shares to be Sold" in Schedule II hereto by a fraction,
the numerator of which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the aggregate number of Firm Shares to
be purchased by all of the Underwriters from the Company and all of the Selling
Stockholders hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, each of the Company and the Selling Stockholders agrees, severally and
not jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from each of the Company and the
Selling Stockholders, at the purchase price per share set forth in clause (a) of
this Section 2, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company and the Selling Stockholders, as and to the extent indicated in
Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters
the right to purchase at their election up to 281,250 Optional Shares, at the
purchase price per share set forth in the paragraph above, for the sole purpose
of covering sales of shares in excess of the number of Firm Shares. Any such
election to purchase Optional Shares shall be made in proportion to the number
of Optional Shares to be sold by the Selling Stockholders listed in the column
"Number of Optional Shares to be Sold if Maximum Option Exercised" in Schedule
II and the Company. Any such election to purchase Optional Shares may be
exercised only by written notice from you to the Company and the
Attorneys-in-Fact, given within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event (x) earlier than the First Time of Delivery
(as defined in Section 4 hereof) or (y) unless you and the Company and the
Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Shares in book-entry form which
will be deposited by or on behalf of the Company with the Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the Shares
to Xxxxxx Xxxxxx Partners LLC, for the account of each Underwriter, against
payment by or on behalf of each such Underwriter of the purchase price therefor
by wire transfer of Federal (same-day) funds to the account specified by the
Company and each of the Selling Stockholders, as their interests may appear, to
Xxxxxx Xxxxxx Partners LLC by causing DTC to credit the Shares to the account of
Xxxxxx Xxxxxx Partners LLC at DTC. The time and date of such delivery and
payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time, on
November 21, 2006, or such other time and date as Xxxxxx Xxxxxx Partners LLC and
the Company may agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by Xxxxxx Xxxxxx Partners LLC in
the written notice given by Xxxxxx Xxxxxx Partners LLC of the Underwriters'
election to purchase such Optional Shares, or such other time and date as Xxxxxx
Xxxxxx Partners LLC and the Company may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 9 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 9(l) hereof, will be delivered at the offices
of Fulbright & Xxxxxxxx L.L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Closing Location"), and the Shares will be delivered at the office of DTC or
its designated custodian (the "Designated Office"), all at such Time of
Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York
City time, on the New York Business Day next preceding such Time of Delivery or
such other time on such day as shall be determined by the parties, at which
meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City are generally authorized or obligated by
law or executive order to close.
5. Each of the Company and the Selling Stockholders acknowledges and agrees
that (i) the purchase and sale of the Shares pursuant to this Agreement is an
arm's-length commercial transaction between the Company and the Selling
Stockholders, on the one hand, and the several Underwriters, on the other, (ii)
in connection therewith and with the process leading to such transaction, each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company or the Selling Stockholders, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company or the Selling
Stockholders with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or the Selling Stockholders on other matters) or
any other obligation to the Company or the Selling Stockholders except the
obligations expressly set forth in this Agreement and (iv) each of the Company
and the Selling Stockholders has consulted its own legal and financial advisors
to the extent it deemed appropriate. Each of the Company and the Selling
Stockholders agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or the Selling Stockholders, in
connection with such transaction or the process leading thereto.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) between the Company and the Selling Stockholders, on the one
hand, and the Underwriters, or any of them, on the other, with respect to the
subject matter hereof, other than the "lock-up" agreements executed by the
Selling Stockholders referred to in Section 9(i) and the Custody Agreement.
Each of the Company and the Selling Stockholders and each of the
Underwriters hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or the Prospectus
prior to the last Time of Delivery which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof; to
file promptly all material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after
it receives notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any Preliminary Prospectus
or other prospectus in respect of the Shares, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or other prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with written and electronic copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the delivery
of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus (the initial
"Lock-Up Period") used to sell the Shares, not to offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any securities of the
Company, or enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of any
securities of the Company (other than (i) the Shares offered by the Company
pursuant to this Agreement, (ii) any shares of Common Stock issuable upon
exercise of options outstanding on the date hereof, or (iii) any shares of
Common Stock issued in connection with a transaction involving a change of
control of the Company and that would be intended to be consummated in lieu of
the transactions contemplated by this Agreement), without your prior written
consent; provided, however, that if (1) during the last 17 days of the initial
Lock Up Period, the Company releases earnings results or announces material news
or a material event or (2) prior to the expiration of the initial Lock Up
Period, the Company announces that it will release earnings results during the
15 day period following the last day of the initial Lock Up Period, then in each
case the Lock Up Period will be automatically extended until the expiration of
the 18 day period beginning on the date of release of the earnings results or
the announcement of the material news or material event, as applicable, unless
Xxxxxx Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co. waive, in writing, such
extension; the Company will provide the representatives and any co-managers and
each stockholder subject to the Lock-Up Period pursuant to the lock-up letters
described in Section 9(i) with prior notice of any such announcement that gives
rise to an extension of the Lock Up Period;
(f) Unless otherwise publicly available in electronic format on the
website of the Company or the Commission, to furnish to its stockholders as soon
as practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the Registration Statement), to make available to
its stockholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, unless otherwise publicly available in electronic format
on the website of the Company or the Commission, to furnish to you copies of all
reports or other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange or quotation system on which any class of
securities of the Company is listed or quoted; and (ii) such additional
information concerning the business and financial condition of the Company as
you may from time to time reasonably request (such financial statements to be on
a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission);
(h) To maintain, at its expense, a registrar and transfer agent for
the Common Stock;
(i) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Pricing Prospectus and
the Prospectus under the caption "Use of Proceeds";
(j) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and the Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act;
(k) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); provided, however, that the License
shall be used solely for the purpose described above, is granted without any fee
and may not be assigned or transferred; and
(l) That the Company and its subsidiaries will comply, in all material
respects, with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act.
7. (a) The Company represents and agrees that, without the prior consent
of Xxxxxx Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co., it has not made and will
not make any offer relating to the Shares that would constitute a "free writing
prospectus" as defined in Rule 405 under the Act; each Underwriter represents
and agrees that, without the prior consent of the Company and Xxxxxx Xxxxxx
Partners LLC and Xxxxx Xxxxxxx & Co., it has not made and will not make any
offer relating to the Shares that would constitute a free writing prospectus;
any such free writing prospectus the use of which has been consented to by the
Company and Xxxxxx Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co. is listed on
Schedule III hereto;
(b) The Company has complied and will comply with the requirements of
Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending; and the Company represents that it has satisfied and agrees that it
will satisfy the conditions under Rule 433 under the Act to avoid a requirement
to file with the Commission any electronic road show;
(c) The Company agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which
such Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to Xxxxxx Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co. and, if
requested by Xxxxxx Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co., will prepare
and furnish without charge to each Underwriter an Issuer Free Writing Prospectus
or other document which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through Xxxxxx Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co.
expressly for use therein.
8. The Company and each of the Selling Stockholders covenant and agree with
one another and with the several Underwriters that (a) the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Company's and the Selling Stockholders' counsel and the Company's accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing, reproduction and filing
of the Registration Statement, any Preliminary Prospectus, any Issuer Free
Writing Prospectus and the Prospectus and amendments and supplements thereto and
the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing the Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 6(b) hereof, including
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the NASDAQ
Global Select Market; and (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the NASD of the terms of the sale of the Shares; (b) the
Company will pay or cause to be paid: (i) the cost of preparing stock
certificates; (ii) the cost and charges of any transfer agent or registrar and
(iii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section and (c) such Selling Stockholder will pay or cause to be paid all costs
and expenses incident to the performance of such Selling Stockholder's
obligations hereunder which are not otherwise specifically provided for in this
Section, including (i) any fees and expenses of counsel for such Selling
Stockholder, and (ii) all expenses and taxes incident to the sale and delivery
of the Shares to be sold by such Selling Stockholder to the Underwriters
hereunder. In connection with clause (c)(ii) of the preceding sentence, Xxxxxx
Xxxxxx Partners LLC agrees to pay New York State stock transfer tax, and the
Selling Stockholder agrees to reimburse Xxxxxx Xxxxxx Partners LLC for
associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is further
understood, however, that (x) subject to Section 10(b), the Company shall bear,
and the Selling Stockholders shall not be required to pay or to reimburse the
Company for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement, and (y) except as provided in
this Section, and Sections 10 and 13 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees and disbursements of their
counsel, stock transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
9. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties of the Company and of the
Selling Stockholders herein are, at and as of such Time of Delivery, true and
correct, the condition that the Company and the Selling Stockholders shall have
performed all of its and their obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance with
Section 6(a) hereof; all material required to be filed by the Company pursuant
to Rule 433(d) under the Act shall have been filed with the Commission within
the applicable time period prescribed for such filing by Rule 433; if the
Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been initiated
or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Fulbright & Xxxxxxxx L.L.P., counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated such Time of
Delivery, in the form attached as Annex I(a) hereto;
(c) Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Company, shall have
furnished to you their written opinion and letter, dated such Time of Delivery,
in the forms attached as Annex I(b) hereto, and Akerman Senterfitt, counsel for
the Company, shall have furnished to you their written opinion, dated such Time
of Delivery, in the form attached hereto as Annex I(c);
(d) The respective counsel for each of the Selling Stockholders, as
indicated in Schedule II hereto, each shall have furnished to you their written
opinion with respect to each of the Selling Stockholders for whom they are
acting as counsel, dated such Time of Delivery, in the form attached hereto as
Annex I(d);
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Deloitte & Touche LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex II hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex II(a) hereto and a draft of the
form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex II(b) hereto);
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery,
KPMG LLP shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex III hereto (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex III(a) hereto and
a draft of the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each Time of
Delivery is attached as Annex III(b) hereto);
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth in the Pricing Prospectus, and (ii) since the respective dates
as of which information is given in the Pricing Prospectus there shall not have
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the business, operations, assets, condition (financial
or otherwise) or results of operations of the Company and its consolidated
subsidiaries, otherwise than as set forth in the Pricing Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is in the judgment
of Xxxxxx Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co. so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Pricing Prospectus;
(h) On or after the Applicable Time there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on the NASDAQ Stock
Market; (ii) a suspension or material limitation in trading in the Company's
securities on the NASDAQ Stock Market; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York or California State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event specified in
clause (iv) or (v) in your judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(i) The Shares to be sold at such Time of Delivery shall have been
duly listed for quotation on the NASDAQ Global Select Market;
(j) The Company has obtained and delivered to the Underwriters
executed copies of a "lock-up" agreement from each of the Selling Stockholders,
executive officers and directors of the Company, substantially to the effect set
forth in Annex IV hereto; and such agreements shall be in full force and effect
as of the last Time of Delivery;
(k) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(l) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its respective obligations hereunder to be performed at or prior to
such Time of Delivery, and as to such other matters as you may reasonably
request, and the Company
shall have furnished or caused to be furnished certificates as to the matters
set forth in subsections (a) and (g) of this Section; and
(m) The Selling Stockholders shall have furnished or caused to be
furnished to you at such Time of Delivery a certificate of the Selling
Stockholders in the form attached hereto as Annex V.
10. (a) Subject to Section 10(g), the Company and each of the Selling
Stockholders (other than the Jewish Communal Fund), jointly and severally, will
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, from and against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or controlling person
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and the Selling Stockholders shall not be liable in any such case to the
extent that any such loss, claim, expense, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus,
the Pricing Prospectus or the Prospectus or any amendment or supplement thereto,
or any Issuer Free Writing Prospectus, in reliance upon and in conformity with,
written information furnished to the Company by any Underwriter through Xxxxxx
Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co. expressly for use therein.
(b) Each of the Selling Stockholders will, severally and not jointly,
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities to which the Company or
such controlling person may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with
information relating to such Selling Stockholder furnished to the Company in
writing by such Selling Stockholder expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Each Underwriter will indemnify and hold harmless the Company, the
directors of the Company, the officers of the Company who sign the Registration
Statement, each Selling Stockholder and each person, if any, who controls the
Company or any Selling Stockholder within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act, from and against any losses, claims,
damages or liabilities to which the Company, such director or officer, such
Selling Stockholder or
controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Xxxxxx Xxxxxx
Partners LLC and Xxxxx Xxxxxxx & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof. It is understood that the indemnifying party shall not, in
respect of the legal expenses in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (1) the fees and expenses of
more than one separate firm (in addition to a single firm of local counsel in
each applicable jurisdiction) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, (2) the fees and expenses of more than one
separate firm (in addition to a single firm of local counsel in each applicable
jurisdiction) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such section and (3) the fees and expenses of more than
one separate firm (in addition to a single firm of local counsel in each
applicable jurisdiction) for all Selling Shareholders and all persons, if any,
who control any Selling Shareholder within the meaning of either such section.
In the case of any such separate firm for the Underwriters and such control
persons of any Underwriters, such firm shall be designated in writing by Xxxxxx
Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co. In the case of any such separate
firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case of
any such separate firm for the Selling Shareholders and such control persons of
any Selling Shareholders, such firm shall be reasonably satisfactory to the
persons named as attorneys in fact for the Selling Shareholders under the Powers
of Attorney. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party. No indemnified party shall settle any claim
for which indemnification is sought hereunder without the prior written consent
of the indemnifying party.
(e) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Stockholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (e),
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 were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section 10 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 10 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company) and to each person, if any, who
controls the Company or any Selling Stockholder within the meaning of the Act.
(g) The liability of each Selling Stockholder under the indemnity and
contribution provisions of this Section 10 shall be limited to an amount equal
to the public offering price of the Shares sold by such Selling Stockholder,
less the underwriting discount, as set forth on the front cover page of the
Prospectus. The Company and the Selling Stockholders may agree, as among
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of such liability for which they each
shall be responsible.
11. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company and the Selling Stockholders shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Stockholders that you have so arranged for the purchase of such Shares,
or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone a Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company and the Selling Stockholders shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholders, except
for the expenses to be borne by the Company and the Selling Stockholders and the
Underwriters as provided in Section 8 hereof and the indemnity and
contribution agreements in Section 10 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 8 and 10 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Stockholders as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 8 and 10
hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxx Xxxxxx Partners LLC and Xxxxx Xxxxxxx & Co. on
behalf of you as the representatives; and in all dealings with any Selling
Stockholder hereunder, you and the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by any or all of the Attorneys-in-Fact for such
Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxx Xxxxxx
Partners LLC, Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000,
Attention: General Counsel and Xxxxx Xxxxxxx & Co., 000 Xxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxxx, XX 00000, Attention: Xxxxxxx Xxxxxxx; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to counsel for such Selling Stockholder at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary, with a copy to Xxxxxxx Xxxx &
Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx X.
Xxxxxxxxxx, Esq., Facsimile No. (000) 000-0000; provided, however, that any
notice to an Underwriter pursuant to Section 10(e) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholders by you on request; provided, however, that notices under Section
6(e) shall be in writing, and if to the Underwriters shall be delivered or sent
by mail, telex or facsimile transmission to you as the representatives at Xxxxxx
Xxxxxx Partners LLC, Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000,
Attention: General Counsel and Xxxxx Xxxxxxx & Co., 000 Xxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxxx, XX 00000, Attention: Xxxxxxx Xxxxxxx; if to any other
signatory to an agreement referred to in Section 9(i), to the address listed on
the signature page thereto. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 10 and 12 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Representatives plus one for
each counsel, of any counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Stockholders. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Stockholders for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such
action.
[Signature page to follow]
Very truly yours,
CACHE, INC.
By: /s/ Cache, Inc.
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President/COO
SELLING STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxx by Xxxxxx X.
Xxxxxxxxx as Attorney in Fact
Jewish Communal Fund
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Controller
/s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxx X. Xxxx by
Xxxxxx X. Xxxxxxxxx
as Attorney in Fact
Xxxxxx X. and Xxxxx X.
Xxxx Foundation
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxx by
Xxxxxx X. Xxxxxxxxx
as Attorney in Fact
Title: Trustee
Xxxxxx and Xxxxxx Xxxx Foundation
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxx by
Xxxxxx X. Xxxxxxxxx as
Attorney in Fact
Title: Trustee
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxx Xxxx Xxxxxx by
Xxxxxx X. Xxxxxxxxx as
Attorney in Fact
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxx Xxxxx by Xxxxxx X.
Xxxxxxxxx as
Attorney in Fact
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
Accepted as of the date hereof at San Francisco, California
XXXXXX XXXXXX PARTNERS LLC
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Partner
Accepted as of the date hereof at Minneapolis, Minnesota
XXXXX XXXXXXX & CO.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Each on behalf of itself and as representative of the Underwriters
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- -------------------
Xxxxxx Xxxxxx Partners LLC.......................................... 675,000 101,250
Xxxxx Xxxxxxx & Co.................................................. 618,750 92,813
SunTrust Capital Markets, Inc....................................... 187,500 28,125
Xxxx Xxxx & Co., Inc................................................ 187,500 28,125
Xxxxx Xxxxxx, Carret & Co., LLC..................................... 112,500 16,875
Xxxxxxxx Curhan Ford & Co........................................... 93,750 14,062
-------------- -------------------
Total.......................................................... 1,875,000 281,250
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- -------------------
The Company......................................................... 200,000 6,250
The Selling Stockholders:
Xxxxxx X. Xxxx.......................................... 400,000 0
Jewish Communal Fund....................................... 150,000 0
Xxxxx X. Xxxx.............................................. 920,000 0
Xxxxxx X. and Xxxxx X. Xxxx Foundation..................... 22,500 0
Xxxxxx and Xxxxxx Xxxx Foundation.......................... 7,500 0
Xxxx Xxxx Xxxxxx........................................... 125,000 0
Xxxxx Xxxxx................................................ 50,000 200,000
Xxxxxx X. Xxxxxxxxx........................................ 0 75,000
-------------- -------------------
Total.......................................................... 1,875,000 281,500
============== ===================
-------------
(a) This Selling Stockholder is represented by Xxxxxxx Xxxx & Xxxxx LLP
(notices to be addressed to Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxxxxx, Esq., Facsimile
No.: (000) 000-0000) and has appointed Xxxxx Xxxxx, Xxxxxx Xxxxxxxxx and
Xxxxxx Xxxx, and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
SCHEDULE III
ISSUER FREE WRITING PROSPECTUSES
None.
SCHEDULE IV
None.
ANNEX I(a)
FORM OF OPINION OF UNDERWRITERS' COUNSEL
ANNEX I(b)
FORM OF OPINION OF COMPANY COUNSEL--XXXXXXX XXXX & XXXXX LLP
ANNEX I(c)
FORM OF OPINION OF COMPANY COUNSEL--AKERMAN SENTERFITT
ANNEX I(d)
FORM OF OPINION
OF COUNSEL TO THE SELLING STOCKHOLDERS
ANNEX II
FORM OF COMFORT LETTER--DELOITTE & TOUCHE LLP
ANNEX III
FORM OF COMFORT LETTER--KPMG LLP
ANNEX IV
FORM OF LOCK-UP AGREEMENT
ANNEX V
FORM OF CERTIFICATES OF SELLING STOCKHOLDERS
SELLING STOCKHOLDER'S CERTIFICATE
PURSUANT TO SECTION 9(m) OF THE UNDERWRITING AGREEMENT
The undersigned hereby certifies on behalf of the Selling Stockholders
that, pursuant to Section 9(m) of the Underwriting Agreement dated November 15,
2006, among the Company, the several underwriters named in Schedule I annexed
thereto and the Selling Stockholders named in Schedule II annexed thereto (the
"Underwriting Agreement") that:
(a) The representations and warranties of each Selling Stockholder set
forth in the Underwriting Agreement that are expressly qualified by
reference to materiality are true and correct in all respects as so
qualified, and the representations and warranties of each Selling
Stockholder contained in the Underwriting Agreement that are not so
qualified are true and correct in all material respects, each with the
same force and effect as though expressly made by such Selling
Stockholder on and as of the date hereof.
(b) Each Selling Stockholder has performed in all material respects all
covenants and agreements on its part to be performed or satisfied at
or prior to the date hereof.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed to them in the Underwriting Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed on behalf of each Selling Stockholder as of this 21st day of November,
2006.
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