Exhibit 1
MCSi, Inc.
4,500,000 Shares Common Stock(1)
UNDERWRITING AGREEMENT
_______________, 2001
Xxxxxxx Xxxxx & Company, L.L.C.
Friedman, Billings, Xxxxxx & Co., Inc.
As Representatives of the Several
Underwriters Named in Schedule A
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. MCSi, Inc. ("COMPANY") a Maryland corporation,
has an authorized capital stock consisting of 5,000,000 shares of Preferred
Stock, no par value, of which no shares were outstanding as of _________,
2001 and 30,000,000 shares, no par value, of Common Stock ("COMMON STOCK") of
which ____________ shares were outstanding as of the date hereof. The Company
proposes to issue and sell 4,000,000 shares of its authorized but unissued
Common Stock, and certain stockholders of the Company (collectively referred
to as the "Selling Stockholders" and named in Schedule B) propose to sell
500,000 shares of the Company's issued and outstanding Common Stock, to the
several underwriters named in Schedule A as it may be amended by the Pricing
Agreement hereinafter defined ("UNDERWRITERS"), who are acting severally and
not jointly. Collectively, such total of 4,500,000 shares of Common Stock
proposed to be sold by the Company and the Selling Stockholders is
hereinafter referred to as the "FIRM SHARES." In addition, the Company and
the Selling Stockholders propose to grant to the Underwriters an option to
purchase up to 675,000 additional shares of Common Stock ("OPTION SHARES") as
provided in Section 5 hereof. The Firm Shares and, to the extent such option
is exercised, the Option Shares, are hereinafter collectively referred to as
the "SHARES." Xxxxxxx Xxxxx & Company, L.L.C. ("XXXXX") has the authority,
subject to the terms and conditions contained herein, to act on behalf of the
several Underwriters and the Representatives hereunder.
You have advised the Company and the Selling Stockholders that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon as you deem advisable after the registration statement
hereinafter referred to becomes effective, if it has not yet become effective,
and the Pricing Agreement hereinafter defined has been executed and delivered.
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company, the Selling Stockholders and the Representatives,
acting on behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto ("PRICING AGREEMENT"). The Pricing
Agreement may take the form of an exchange of any standard form of written
telecommunication between the Company, the Selling Stockholders and the
Representatives and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by this Agreement,
as supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be deemed
to incorporate the Pricing Agreement.
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(1) Plus an option to acquire up to 675,000 additional shares to cover
overallotments.
The Company and each of the Selling Stockholders hereby confirms their
agreements with the Underwriters as follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the several Underwriters and the Selling Stockholders
that:
(a) A registration statement on Form S-3 (File No. 333-_______) and a
related preliminary prospectus with respect to the Shares have been
prepared and filed with the Securities and Exchange Commission
("COMMISSION") by the Company in conformity with the requirements of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "1933 ACT;" unless indicated to
the contrary, all references herein to specific rules are rules promulgated
under the 0000 Xxx); and the Company has so prepared and has filed such
amendments thereto, if any, and such amended preliminary prospectuses as
may have been required to the date hereof and will file such additional
amendments thereto and such amended prospectuses as may hereafter be
required. There have been or will promptly be delivered to you a signed
copy of such registration statement and amendments, together with a copy of
all documents incorporated by reference therein, a copy of each exhibit
filed therewith, and conformed copies of such registration statement and
amendments (but without exhibits) and of the related preliminary prospectus
or prospectuses and final forms of prospectus for each of the Underwriters.
For purposes of this Agreement, delivery or the furnishing of certain
documents may take the form of access to such documents as filed with the
Commission using XXXXX and available on the Commission's website at
xxx.xxx.xxx.
Such registration statement (as amended, if applicable) at the time it
becomes effective and the prospectus constituting a part thereof (including
the information, if any, deemed to be part thereof pursuant to Rule 430A(b)
and/or Rule 434), as from time to time amended or supplemented, are
hereinafter referred to as the "REGISTRATION STATEMENT," and the
"PROSPECTUS," respectively, except that if any revised prospectus shall be
provided to the Underwriters by the Company for use in connection with the
offering of the Shares which differs from the Prospectus on file at the
Commission at the time the Registration Statement became or becomes
effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b)), the term Prospectus shall refer to
such revised prospectus from and after the time it was provided to the
Underwriters for such use. If the Company elects to rely on Rule 434 of the
1933 Act, all references to "Prospectus" shall be deemed to include,
without limitation, the form of prospectus and the term sheet, taken
together, provided to the Underwriters by the Company in accordance with
Rule 434 of the 1933 Act ("RULE 434 PROSPECTUS"). Any registration
statement (including any amendment or supplement thereto or information
which is deemed part thereof) filed by the Company under Rule 462(b) ("RULE
462(b) REGISTRATION STATEMENT") shall be deemed to be part of the
"Registration Statement" as defined herein, and any prospectus (including
any amendment or supplement thereto or information which is deemed part
thereof) included in such Rule 462(b) Registration Statement shall be
deemed to be part of the "Prospectus", as defined herein, as appropriate.
The Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder are hereinafter collectively
referred to as the "EXCHANGE ACT." Any reference herein to any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
filings made pursuant to the Exchange Act incorporated by reference therein
pursuant to Form S-3 under the 1933 Act ("INCORPORATED DOCUMENTS"), as of
the date of such preliminary prospectus or Prospectus, as the case may be.
Any filing by the Company under the Exchange Act after the effective date
of the Registration Statement or the date of the Prospectus and
incorporated by reference in the Prospectus shall be deemed to be included
in the Registration Statement and the Prospectus as of the date of such
filing.
The Incorporated Documents, when they were or are filed with the
Commission, conformed or will conform in all material respects to the
requirements of the Exchange Act and none of such documents contained or
will contain an untrue statement of a material fact or omitted or will omit
to
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state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(b) The Commission has not issued any order preventing or suspending
the use of any preliminary prospectus, and each preliminary prospectus has
conformed in all material respects with the requirements of the 1933 Act
and, as of its date, has not included any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein not misleading; and when the Registration Statement became or
becomes effective, and at all times subsequent thereto, up to the First
Closing Date or the Second Closing Date hereinafter defined, as the case
may be, the Registration Statement, including the information deemed to be
part of the Registration Statement at the time of effectiveness pursuant to
Rule 430A(b), if applicable, and the Prospectus and any amendments or
supplements thereto, contained or will contain all statements that are
required to be stated therein in accordance with the 1933 Act and in all
material respects conformed or will in all material respects conform to the
requirements of the 1933 Act, and neither the Registration Statement nor
the Prospectus, nor any amendment or supplement thereto, included or will
include any untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or omitted from
any preliminary prospectus, the Registration Statement, the Prospectus or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of (x) any
Underwriter through the Representatives specifically for use in the
preparation thereof or (y) any Selling Stockholder expressly for use in the
preparation thereof.
(c) The Company and its subsidiaries have been duly incorporated and
are validly existing as corporations in good standing under the laws of
their respective places of incorporation, with corporate power and
authority to own their properties and conduct their business as described
in the Prospectus; the Company and each of its subsidiaries are duly
qualified to do business as foreign corporations under the corporation law
of, and are in good standing as such in, each jurisdiction in which they
own or lease substantial properties or in which substantial business is
conducted and such qualification is required except in any such case where
the failure to so qualify or be in good standing would not have a material
adverse effect upon the business condition (financial or otherwise) or
results of operations of the Company and its subsidiaries taken as a whole
(a "Material Adverse Effect"); and no proceeding of which the Company has
knowledge has been instituted in any such jurisdiction, revoking, limiting
or curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification.
(d) Except as disclosed in the Registration Statement, the Company
owns directly or indirectly 100 percent of the issued and outstanding
capital stock of each of its subsidiaries, free and clear of any claims,
liens, encumbrances or security interests and all of such capital stock has
been duly authorized and validly issued and is fully paid and
nonassessable.
(e) The issued and outstanding shares of capital stock of the Company
as set forth in the Prospectus have been duly authorized and validly
issued, are fully paid and nonassessable, and conform in all material
respects to the description thereof contained in the Prospectus.
(f) The Shares to be sold by the Company have been duly authorized and
when issued, delivered and paid for pursuant to this Agreement, will be
validly issued, fully paid and nonassessable, and will conform in all
material respects to the description thereof contained in the Prospectus.
(g) The making and performance by the Company of this Agreement and
the Pricing Agreement have been duly authorized by all necessary corporate
action and (i) will not violate any provision of the Company's charter or
bylaws and (ii) except for such violations, breaches or defaults
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which would not have a Material Adverse Effect, will not result in the
breach, or be in contravention, of any provision of any agreement,
franchise, license, indenture, mortgage, deed of trust, or other instrument
to which the Company or any subsidiary is a party or by which the Company,
any subsidiary or the property of any of them may be bound or affected, or
any order, rule or regulation applicable to the Company or any subsidiary
of any court or regulatory body, administrative agency or other
governmental body having jurisdiction over the Company or any subsidiary or
any of their respective properties, or any order of any court or
governmental agency or authority entered in any proceeding to which the
Company or any subsidiary was or is now a party or by which it is bound. No
consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body is required for the
execution and delivery of this Agreement or the Pricing Agreement or the
consummation of the transactions contemplated herein or therein, except for
compliance with the 1933 Act, the declaration of the effectiveness of the
Registration Statement by the Commission, compliance with blue sky laws
applicable to the public offering of the Shares by the several Underwriters
and clearance of such offering with the National Association of Securities
Dealers, Inc. ("NASD"). This Agreement has been duly executed and delivered
by the Company.
(h) The accountants who have expressed their opinions with respect to
certain of the audited financial statements included or incorporated by
reference in the Registration Statement are independent accountants as
required by the 1933 Act.
(i) The consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement present fairly the
consolidated financial position of the Company as of the respective dates
of such financial statements, and the consolidated statements of
operations, cash flows and changes in stockholders' equity of the Company
for the respective periods covered thereby, all in conformity with
generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed in the Prospectus. The financial
information set forth in the Prospectus under "Selected Consolidated
Financial Data" presents fairly on the basis stated in the Prospectus, the
information set forth therein.
(j) The consolidated financial statements of Intellisys Group, Inc.
("INTELLISYS") included or incorporated by reference in the Registration
Statement present fairly the consolidated financial position of Intellisys
as of the respective dates of such financial statements, and the
consolidated statements of operations, cash flows and changes in
stockholders' equity of Intellisys for the respective periods covered
thereby, all in conformity with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
in the Prospectus.
(k) The pro forma financial statements and other pro forma information
included in the Prospectus present fairly the information shown therein,
have been prepared in accordance with generally accepted accounting
principles and the Commission's rules and guidelines with respect to pro
forma financial statements and other pro forma information, have been
properly compiled on the pro forma basis described therein, and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate under the
circumstances.
(l) Neither the Company nor any subsidiary is in violation of its
charter or in default under any consent decree, or in default with respect
to any material provision of any lease, loan agreement, franchise, license,
permit or other contract obligation to which it is a party; and there does
not exist any state of facts which constitutes an event of default as
defined in such documents or which, with notice or lapse of time or both,
would constitute such an event of default, in each case, except for
defaults which neither singly nor in the aggregate would have a Material
Adverse Effect.
(m) There are no material legal or governmental proceedings pending,
or to the Company's knowledge, threatened to which the Company or any
subsidiary is or may be a party or of
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which material property owned or leased by the Company or any subsidiary is
or may be the subject, or related to environmental or discrimination
matters which are not disclosed in the Prospectus, or which question the
validity of this Agreement or the Pricing Agreement or any action taken or
to be taken pursuant hereto or thereto.
(n) There are no holders of securities of the Company having rights to
registration thereof or preemptive rights to purchase Common Stock [except
as disclosed in the Prospectus. Holders of registration rights who are not
Selling Stockholders have waived such rights with respect to the offering
being made by the Prospectus].
(o) The Company and each of its subsidiaries have good and marketable
title to all the properties and assets reflected as owned in the financial
statements hereinabove described (or elsewhere in the Prospectus), subject
to no lien, mortgage, pledge, charge or encumbrance of any kind except
those, if any, reflected in such financial statements (or elsewhere in the
Prospectus) or which are not material to the Company and its subsidiaries
taken as a whole. The Company and each of its subsidiaries hold their
respective leased properties which are material to the Company and its
subsidiaries taken as a whole under valid and binding leases.
(p) The Company has not taken and will not take during the Offering
(including any time after the effective date of the Registration Statement
during which the Underwriters are deemed to be making a public offering),
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as
contemplated by the Prospectus, the Company and its subsidiaries, taken as
a whole, have not incurred any material liabilities or obligations, direct
or contingent, nor entered into any material transactions not in the
ordinary course of business and there has not been any material adverse
change in their condition (financial or otherwise) or results of operations
nor any material adverse change in their capital stock, short-term debt or
long-term debt.
(r) There is no material document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required.
(s) The Company together with its subsidiaries owns and possesses all
right, title and interest in and to, or has duly licensed from third
parties, all trademarks, copyrights and other proprietary rights ("TRADE
RIGHTS") material to the business of the Company and each of its
subsidiaries taken as a whole. Except as disclosed in the Prospectus,
neither the Company nor any of its subsidiaries has received any notice of
infringement, misappropriation or conflict from any third party as to such
material Trade Rights which has not been resolved or disposed of and
neither the Company nor any of its subsidiaries has infringed,
misappropriated or otherwise conflicted with material Trade Rights of any
third parties, which infringement, misappropriation or conflict would have
Material Adverse Effect.
(t) The conduct of the business of the Company and each of its
subsidiaries is in compliance in all respects with applicable federal,
state, local and foreign laws and regulations, except where the failure to
be in compliance would not have a Material Adverse Effect.
(u) All offers and sales of the Company's capital stock prior to the
date hereof were either (1) made pursuant to a registration statement filed
by the Company with the Commission under the 1933 Act or (2) at all
relevant times exempt from the registration requirements of the 1933 Act,
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and in any such case were duly registered with or the subject of an
available exemption from the registration requirements of the applicable
state securities or blue sky laws.
(v) The Company has filed all necessary federal and state income and
franchise tax returns and has paid all taxes shown as due thereon, and
there is no tax deficiency that has been asserted in writing, or to the
knowledge of the Company may be, asserted against the Company or any of its
properties or assets that if adversely determined to the Company would or
could be expected to have a Material Adverse Effect.
(w) A registration statement relating to the Common Stock has been
declared effective by the Commission pursuant to the Exchange Act and the
Common Stock is duly registered thereunder. The Shares have been or will be
listed on the Nasdaq National Market.
(x) The Company is not, and does not intend to conduct its business in
a manner in which it would become, an "investment company" as defined in
Section 3(a) of the Investment Company Act of 1940, as amended ("INVESTMENT
COMPANY ACT").
(y) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after
the date the Registration Statement becomes or has become effective with
the Commission or with the Florida Department of Banking and Finance (the
"DEPARTMENT"), whichever date is later, or if the information reported in
the Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
SECTION 3. REPRESENTATIONS , WARRANTIES AND COVENANTS OF THE SELLING
STOCKHOLDERS.
(a) Each Selling Stockholder severally, and not jointly, represents
and warrants to, and agrees with, the Company and the Underwriters that:
(i) Such Selling Stockholder has, and on the First Closing Date
or the Second Closing Date, as the case may be, will have, valid
marketable title to the Shares proposed to be sold by such Selling
Stockholder hereunder on such date and full right, power and authority
to enter into this Agreement and the Pricing Agreement and to sell,
assign, transfer and deliver such Shares hereunder, free and clear of
all voting trust arrangements, liens, encumbrances, equities, claims
and community property rights; and upon delivery of and payment for
such Shares hereunder, the Underwriters will acquire valid marketable
title thereto, free and clear of any voting trust arrangement, lien,
encumbrance, equity, claim and community property right other than
imposed upon or consented to in writing by an Underwriter.
(ii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might be
reasonably expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the resale of the Shares.
(iii) Such Selling Stockholder has executed and delivered a Power
of Attorney ("POWER OF ATTORNEY") among the Selling Stockholder and
Xxxxxxx X. Xxxxxx (the "AGENT"), naming the Agent as such Selling
Stockholder's attorneys-in-fact for the purpose of entering into and
carrying out this Agreement and the Pricing Agreement on behalf of
such Selling Stockholder, and the Power of Attorney has been duly
executed by such Selling Stockholder
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and a copy thereof has been delivered to you.
(iv) Such Selling Stockholder further represents, warrants and
agrees that such Selling Stockholder has deposited in custody, under a
Custody Agreement ("CUSTODY AGREEMENT") with Registrar and Transfer
Company, as custodian ("CUSTODIAN"), certificates in negotiable form
for the Shares to be sold hereunder by such Selling Stockholder, for
the purpose of further delivery pursuant to this Agreement. Such
Selling Stockholder agrees that the Shares to be sold by such Selling
Stockholder on deposit with the Custodian are subject to the interests
of the Company, the Underwriters and the other Selling Stockholders,
that the arrangements made for such custody, and the appointment of
the Agent pursuant to the Power of Attorney, are to that extent
irrevocable, and that the obligations of such Selling Stockholder
hereunder and under the Power of Attorney and the Custody Agreement
shall not be terminated except as provided in this Agreement, the
Power of Attorney or the Custody Agreement by any act of such Selling
Stockholder, by operation of law, whether, in the case of an
individual Selling Stockholder, by the death or incapacity of such
Selling Stockholder or, in the case of a trust or estate, by the death
of the trustee or trustees or the executor or executors or the
termination of such trust or estate, or, in the case of a partnership
or corporation, by the dissolution, winding-up or other event
affecting the legal life of such entity, or by the occurrence of any
other event. If any individual Selling Stockholder, trustee or
executor should die or become incapacitated, or any such trust,
estate, partnership or corporation should be terminated, or if any
other event should occur before the delivery of the Shares hereunder,
the documents evidencing Shares then on deposit with the Custodian
shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death, incapacity, termination
or other event had not occurred, regardless of whether or not the
Custodian shall have received notice thereof. Each Agent has been
authorized by such Selling Stockholder to execute and deliver this
Agreement and the Pricing Agreement and the Custodian has been
authorized to receive and acknowledge receipt of the proceeds of sale
of the Shares to be sold by such Selling Stockholder against delivery
thereof and otherwise act on behalf of such Selling Stockholder. The
Custody Agreement has been duly executed by such Selling Stockholder
and a copy thereof has been delivered to you.
(v) Each preliminary prospectus, solely with respect to
information provided in writing by such Selling Stockholder for
inclusion therein as of its date, has not included any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and with
respect to the Registration Statement at the time of effectiveness,
and at all times subsequent thereto, up to the First Closing Date or
the Second Closing date, as the case may be, neither the Registration
Statement nor the Prospectus, nor any amendment or supplement thereto,
solely with respect to information provided in writing by such Selling
Stockholder for inclusion therein, included or will include any untrue
statement of a material fact or omitted or will omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, provided that the
foregoing clause shall not have any effect if information has been
given by such Selling Stockholder to the Company and the
Representatives in writing which would eliminate or remedy any such
untrue statement or omission. It is agreed that the only information
provided with respect to each Selling Stockholder is such information
as set forth in the Prospectus under the captions "Selling Stockholder
and Related Information" and "Underwriting" which specifically relates
to such Selling Stockholder.
(b) Each Selling Stockholder agrees with the Company and the
Underwriters not to, directly or indirectly, sell, offer, contract to sell,
transfer the economic risk of ownership in, make any short sale, pledge or
otherwise dispose of any shares of Common Stock or securities convertible
into Common Stock for a period of 90 days after this Agreement becomes
effective without the prior
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written consent of the Representatives.
In order to document the Underwriter's compliance with the reporting and
withholding provisions of the Internal Revenue Code of 1986, as amended, with
respect to the transactions herein contemplated, each of the Selling
Stockholders agrees to deliver to you prior to or on the First Closing Date a
properly completed and executed United States Treasury Department Form W-8 or
W-9 (or other applicable form of statement specified by Treasury Department
regulations in lieu thereof).
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. The
Representatives, on behalf of the several Underwriters, represent and warrant
to the Company and the Selling Stockholders that the information set forth
(a) on the cover page of the Prospectus with respect to price, underwriting
discount and terms of the offering and (b) in paragraphs [_____ ] under
"Underwriting" in the Prospectus was furnished to the Company by and on
behalf of the Underwriters for use in connection with the preparation of the
Registration Statement and is correct and complete in all material respects.
SECTION 5. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and the Selling Stockholders,
severally and not jointly, agree to sell to the Underwriters named in Schedule A
hereto, and the Underwriters agree, severally and not jointly, to purchase from
the Company and the Selling Stockholders, respectively, 4,000,000 Firm Shares
from the Company and the respective number of Firm Shares set forth opposite the
names of the Selling Stockholders in Schedule B hereto at the price per share
set forth in the Pricing Agreement. The obligation of each Underwriter to the
Company shall be to purchase from the Company that number of full shares which
(as nearly as practicable, as determined by you) bears to 4,000,000, the same
proportion as the number of Shares set forth opposite the name of such
Underwriter in Schedule A hereto bears to the total number of Firm Shares to be
purchased by all Underwriters under this Agreement. The obligation of each
Underwriter to each Selling Stockholder shall be to purchase from such Selling
Stockholder the number of full shares which (as nearly as practicable, as
determined by you) bears to the number of Firm Shares set forth opposite the
name of such Selling Stockholder in Schedule B hereto, the same proportion as
the number of Shares set forth opposite the name of such Underwriter in Schedule
A hereto bears to the total number of Firm Shares to be purchased by all
Underwriters under this Agreement. The public offering price and the purchase
price shall be set forth in the Pricing Agreement.
At 10:00 A.M., New York Time, on the fourth business day, if permitted
under Rule 15c6-1 under the Exchange Act, (or the third business day if required
under Rule 15c6-1 under the Exchange Act or unless postponed in accordance with
the provisions of Section 12) following the date the Registration Statement
becomes effective (or, if the Company has elected to rely upon Rule 430A, the
fourth business day, if permitted under Rule 15c6-1 under the Exchange Act, (or
the third business day if required under Rule 15c6-1 under the Exchange Act)
after execution of the Pricing Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by the Representatives and
the Company, the Company and the Custodian will deliver to you at the offices of
counsel for the Company or through the facilities of The Depository Trust
Company for the accounts of the several Underwriters, certificates representing
the Firm Shares to be sold by the Company and for the benefit of the Selling
Stockholders, respectively, against payment of the purchase price therefor by
delivery of federal or other immediately available funds by wire transfer to an
account of the Company and the Custodian given to the Underwriters not more than
48 hours prior thereto. Such time of delivery and payment is herein referred to
as the "FIRST CLOSING DATE." The certificates for the Firm Shares so to be
delivered will be in such denominations and registered in such names as you
request by notice to the Company and the Custodian prior to 10:00 A.M., New York
Time, on the second business day preceding the First Closing Date, and will be
made available in New York City at the Company's expense for checking and
packaging by the Representatives at 10:00 A.M., New York Time, on the business
day preceding the First Closing Date. Payment for the Firm Shares so to be
delivered shall be made at the time and in the manner described above at the
offices of counsel for the Underwriters.
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In addition, on the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company and the Selling Stockholders hereby grant an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of
675,000 Option Shares, at the same purchase price per share to be paid for the
Firm Shares, for use solely in covering any overallotments made by the
Underwriters in the sale and distribution of the Firm Shares. The option granted
hereunder may be exercised at any time (but not more than once) within 30 days
after the date of the public offering upon notice by you to the Company and the
Agent setting forth the aggregate number of Option Shares as to which the
Underwriters are exercising the option, the names and denominations in which the
certificates for such shares are to be registered and the time and place at
which such certificates will be delivered. Such time of delivery (which may not
be earlier than the First Closing Date), being herein referred to as the "SECOND
CLOSING DATE," shall be determined by you, but if at any time other than the
First Closing Date, shall not be earlier than three nor later than 10 full
business days after delivery of such notice of exercise. The number of Option
Shares to be purchased from the Company and each Selling Stockholder is set
forth in Schedule B hereto. The maximum number of Option Shares that may be
purchased by each Underwriter shall be determined by multiplying the number of
Option Shares to be sold by the Company and the Selling Stockholders pursuant to
such notice of exercise by a fraction, the numerator of which is the number of
Firm Shares to be purchased by such Underwriter as set forth opposite its name
in Schedule A and the denominator of which is the total number of Firm Shares
(subject to such adjustments to eliminate any fractional share purchases as you
in your absolute discretion may make). Certificates for the Option Shares will
be made available at the Company's expense for checking and packaging in New
York City at 10:00 A.M., New York Time, on the business day preceding the Second
Closing Date. The manner of payment for and delivery of the Option Shares shall
be the same as for the Firm Shares as specified in the preceding paragraph.
You have advised the Company and the Selling Stockholders that each
Underwriter has authorized you to accept delivery of its Shares and to make
payment and receipt therefor. You, individually and not as the Representatives
of the Underwriters, may make payment for any Shares to be purchased by any
Underwriter whose funds shall not have been received by you by the First Closing
Date or the Second Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any
obligation hereunder.
SECTION 6. COVENANTS OF THE COMPANY. The Company covenants and agrees that:
(a) The Company will advise you and the Selling Stockholders promptly
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of any
proceedings for that purpose, or of any notification of the suspension of
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceedings for that purpose, and will also advise
you promptly of any request of the Commission for amendment or supplement
of the Registration Statement, of any preliminary prospectus or of the
Prospectus, or for additional information.
(b) The Company will give you and the Agent notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment) or any Rule 462(b) Registration Statement or any
amendment or supplement to the Prospectus (including any revised prospectus
which the Company proposes for use by the Underwriters in connection with
the offering of the Shares which differs from the prospectus on file at the
Commission at the time the Registration Statement became or becomes
effective, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) and any term sheet as contemplated by Rule 434) and
will furnish you and the Agent with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file any such amendment or supplement
or use any such prospectus to which you or counsel for the Underwriters
shall reasonably object.
9
(c) If the Company elects to rely on Rule 434 of the 1933 Act, the
Company will prepare a term sheet that complies with the requirements of
Rule 434. If the Company elects not to rely on Rule 434, the Company will
provide the Underwriters with copies of the form of prospectus, in such
numbers as the Underwriters may reasonably request, and file with the
Commission such prospectus in accordance with Rule 424(b) of the 1933 Act
by the close of business in New York City on the second business day
immediately succeeding the date of the Pricing Agreement. If the Company
elects to rely on Rule 434, the Company will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such numbers as the
Underwriters may reasonably request, by the close of business in New York
on the business day immediately succeeding the date of the Pricing
Agreement.
(d) If at any time when a prospectus relating to the Shares is
required to be delivered under the 1933 Act any event occurs as a result of
which the Prospectus, including any amendments or supplements, would
include an untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Prospectus, including any amendments or supplements thereto and including
any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Shares which differs
from the prospectus on file with the Commission at the time of
effectiveness of the Registration Statement, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) to comply with
the 1933 Act, the Company promptly will advise you thereof and will
promptly prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance; and, in case any Underwriter is required to deliver
a prospectus nine months or more after the effective date of the
Registration Statement, the Company upon request, but at the expense of
such Underwriter, will prepare promptly such prospectus or prospectuses as
may be necessary to permit compliance with the requirements of Section
10(a)(3) of the 1933 Act.
(e) Neither the Company nor any of its subsidiaries will, prior to the
earlier of the Second Closing Date or termination or expiration of the
related option, incur any liability or obligation, direct or contingent, or
enter into any material transaction, other than in the ordinary course of
business, except as contemplated by the Prospectus.
(f) Neither the Company nor any of its subsidiaries will acquire any
capital stock of the Company prior to the earlier of the Second Closing
Date or termination or expiration of the related option nor will the
Company declare or pay any dividend or make any other distribution upon the
Common Stock payable to stockholders of record on a date prior to the
earlier of the Second Closing Date or termination or expiration of the
related option, except in either case as contemplated by the Prospectus.
(g) Not later than ______________, 200_ the Company will make
generally available to its security holders an earnings statement (which
need not be audited) covering a period of at least 12 months beginning
after the effective date of the Registration Statement, which will satisfy
the provisions of the last paragraph of Section 11(a) of the 1933 Act.
(h) During such period as a prospectus is required by law to be
delivered in connection with offers and sales of the Shares by an
Underwriter or dealer, the Company will furnish to you at its expense,
subject to the provisions of subsection (d) hereof, copies of the
Registration Statement, the Prospectus, each preliminary prospectus, the
Incorporated Documents and all amendments and supplements to any such
documents in each case as soon as available and in such quantities as you
may reasonably request, for the purposes contemplated by the 1933 Act.
(i) The Company will cooperate with the Underwriters in qualifying or
registering the Shares for sale under the blue sky laws of such
jurisdictions as you designate, and will continue such
10
qualifications in effect so long as reasonably required for the
distribution of the Shares. The Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of process in
any such jurisdiction where it is not currently qualified or where it would
be subject to taxation as a foreign corporation.
(j) During the period of five years hereafter, the Company will
furnish you and each of the other Underwriters with a copy (i) as soon as
practicable after the filing thereof, of each report filed by the Company
with the Commission, any securities exchange or the NASD; (ii) as soon as
practicable after the release thereof, of each material press release in
respect of the Company; and (iii) as soon as available, of each report of
the Company mailed to stockholders.
(k) The Company will use the net proceeds received by it from the sale
of the Shares being sold by it in the manner specified in the Prospectus.
(l) If, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule
430A and/or Rule 434, then immediately following the execution of the
Pricing Agreement, the Company will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A, Rule 424(b)
and/or Rule 434, copies of an amended Prospectus, or, if required by such
Rule 430A and/or Rule 434, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted. If required, the Company will prepare and file, or transmit for
filing, a Rule 462(b) Registration Statement not later than the date of the
execution of the Pricing Agreement. If a Rule 462(b) Registration Statement
is filed, the Company shall make payment of, or arrange for payment of, the
additional registration fee owing to the Commission required by Rule 111.
(m) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act and the Nasdaq National Market.
(n) The Company agrees not to, directly or indirectly, sell, offer,
contract to sell, transfer the economic risk of ownership in, make any
short sale, pledge or otherwise dispose of any shares of Common Stock or
securities convertible into Common Stock (except Common Stock issued
pursuant to currently outstanding options, warrants or convertible
securities and except for options to be granted under its stock option
plans in the ordinary course) for a period of 90 days after this Agreement
becomes effective without the prior written consent of the Representatives.
The Company has obtained similar agreements from each of its officers and
directors, any holder of at least 1% of its outstanding equity.
SECTION 7. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, the Company agrees to pay (i) all costs,
fees and expenses (other than legal fees and disbursements of counsel for the
Underwriters and the expenses incurred by the Underwriters) incurred in
connection with the performance of the Company's obligations hereunder,
including without limiting the generality of the foregoing, all fees and
expenses of legal counsel for the Company and for the Selling Stockholders and
of the Company's independent accountants, all costs and expenses incurred in
connection with the preparation, printing, filing and distribution of the
Registration Statement, each preliminary prospectus and the Prospectus
(including all Incorporated Documents, exhibits and financial statements) and
all amendments and supplements provided for herein, this Agreement, the Pricing
Agreement and the Blue Sky Memorandum, (ii) all costs, fees and expenses
(including legal fees not to exceed $20,000 and disbursements of counsel for the
Underwriters) incurred by the Underwriters in connection with qualifying or
registering all or any part of the Shares for offer and sale under blue sky
laws, including the preparation of a blue sky memorandum relating to the Shares
and clearance of such offering with the NASD; and (iii) all fees and expenses of
the Company's transfer agent and of the Custodian under the Custody Agreement,
printing of the certificates for the Shares and all transfer taxes, if any, with
respect to the sale and delivery of the Shares to the several Underwriters.
11
The provisions of this Section shall not affect any agreement which the
Company and the Selling Stockholders may make for the allocation or sharing of
such expenses and costs.
SECTION 8. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the First Closing Date and the Option Shares on the Second Closing Date shall
be subject to the accuracy of the representations and warranties on the part of
the Company and the Selling Stockholders herein set forth as of the date hereof
and as of the First Closing Date or the Second Closing Date, as the case may be,
to the accuracy of the statements of officers of the Company made pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement shall have become effective either
prior to the execution of this Agreement or not later than 1:00 P.M.,
Chicago Time, on the first full business day after the date of this
Agreement, or such later time as shall have been consented to by you but in
no event later than 1:00 P.M., Chicago Time, on the third full business day
following the date hereof; and prior to the First Closing Date or the
Second Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be pending
or, to the knowledge of the Company or you, shall be contemplated by the
Commission. If the Company has elected to rely upon Rule 430A and/or Rule
434, the information concerning the public offering price of the Shares and
price-related information shall have been transmitted to the Commission for
filing pursuant to Rule 424(b) within the prescribed period and the Company
will provide evidence satisfactory to the Representatives of such timely
filing (or a post-effective amendment providing such information shall have
been filed and declared effective in accordance with the requirements of
Rules 430A and 424(b)). If a Rule 462(b) Registration Statement is
required, such Registration Statement shall have been transmitted to the
Commission for filing and become effective within the prescribed time
period and, prior to the First Closing Date, the Company shall have
provided evidence of such filing and effectiveness in accordance with Rule
462(b).
(b) The Shares shall have been qualified for sale under the blue sky
laws of such states as shall have been specified by the Representatives.
(c) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Shares hereunder, the validity and form of
the certificates representing the Shares, the execution and delivery of
this Agreement and the Pricing Agreement, and all corporate proceedings and
other legal matters incident thereto, and the form of the Registration
Statement and the Prospectus (except financial statements) shall have been
approved by counsel for the Underwriters exercising reasonable judgment.
(d) You shall not have advised the Company that the Registration
Statement or the Prospectus or any amendment or supplement thereto,
contains an untrue statement of fact, which, in the opinion of counsel for
the Underwriters, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein
or necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company or its subsidiaries, not disclosed in the Registration
Statement, whether or not arising in the ordinary course of business,
which, in the judgment of the Representatives, makes it impractical or
inadvisable to proceed with the public offering or purchase of the Shares
as contemplated hereby.
12
(f) There shall have been furnished to you, as Representatives of the
Underwriters, on the First Closing Date or the Second Closing Date, as the
case may be, except as otherwise expressly provided below:
(i) An opinion of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P, special
counsel for the Company, addressed to the Underwriters and dated the
First Closing Date or the Second Closing Date, as the case may be, to
the effect that:
(1) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Maryland with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
(2) an opinion to the same general effect as clause (1) of
this subparagraph (i) in respect of each subsidiary of the
Company named in Schedule C hereto (each, a "SUBSIDIARY");
(3) all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized, validly issued and is fully
paid and nonassessable, and, except as disclosed in the
Registration Statement, the Company owns directly or indirectly
100 percent of the outstanding capital stock of each Subsidiary,
and to the best knowledge of such counsel, such stock is owned
free and clear of any claims, liens, encumbrances or security
interests;
(4) the authorized capital stock of the Company, of which
there is outstanding the amount set forth in the Registration
Statement and Prospectus (except for subsequent issuances, if
any, pursuant to stock options or other rights referred to in the
Prospectus), conforms as to legal matters in all material
respects to the description thereof in the Registration Statement
and Prospectus;
(5) the issued and outstanding capital stock of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable;
(6) the certificates for the Shares to be delivered
hereunder are in due and proper form, and when duly countersigned
by the Company's transfer agent and delivered to you or upon your
order against payment of the agreed consideration therefor in
accordance with the provisions of this Agreement and the Pricing
Agreement, the Shares represented thereby will be duly authorized
and validly issued, fully paid and nonassessable;
(7) to the best knowledge of such counsel, the Registration
Statement has become effective under the 1933 Act, and no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933 Act, and
the Registration Statement (including the information deemed to
be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) and/or Rule 434, if
applicable), the Prospectus and each amendment or supplement
thereto (except for the financial statements and other
statistical or financial data and schedules and information
provided by the Underwriters as described in Section 3 and as
provided by the Selling Stockholders included therein as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the 1933 Act; the
statements in the Registration Statement and the Prospectus
summarizing statutes, rules and regulations are accurate and
fairly and
13
correctly present the information required to be presented by the
1933 Act or the rules and regulations thereunder relating to such
statutes, rules and regulations, in all material respects and
such counsel does not know of any statutes, rules and regulations
required to be described or referred to in the Registration
Statement or the Prospectus that are not described or referred to
therein as required; and such counsel does not know of any legal
or governmental proceedings pending or threatened required to be
described in the Prospectus which are not described as required,
nor of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described or filed, as required;
(8) the statements under the caption "Description of Capital
Stock" in the Prospectus, insofar as such statements constitute a
summary of documents referred to therein or matters of law, are
accurate summaries and fairly and correctly present, in all
material respects, the information called for with respect to
such documents and matters;
(9) this Agreement and the Pricing Agreement and the
performance of the Company's obligations hereunder have been duly
authorized by all necessary corporate action and this Agreement
and the Pricing Agreement have been duly executed and delivered
by and on behalf of the Company, and are legal, valid and binding
agreements of the Company, except as enforceability of the same
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights and
by the exercise of judicial discretion in accordance with general
principles applicable to equitable and similar remedies and
except as to those provisions relating to indemnities for
liabilities arising under the 1933 Act as to which no opinion
need be expressed; and no approval, authorization or consent of
any public board, agency, or instrumentality of the United States
or of any state or other jurisdiction is necessary in connection
with the issue or sale of the Shares by the Company pursuant to
this Agreement (other than under the 0000 Xxx) (or other than
under applicable blue sky laws and the rules of the NASD as to
which such counsel need express no opinion) or the consummation
by the Company of any other transactions described herein;
(10) the execution and performance of this Agreement and the
issuance of the Shares by the Company will not contravene any of
the provisions of, or result in a default under, any agreement,
franchise, license, indenture, mortgage, deed of trust, or other
instrument known to such counsel and set forth as an exhibit to
the Registration Statement, of the Company or any of its
subsidiaries or by which the property of any of them is bound and
which contravention or default would be material to the Company
and its subsidiaries taken as a whole; or violate any of the
provisions of the charter or bylaws of the Company or any of its
subsidiaries or, so far as is known to such counsel, violate any
statute, order, rule or regulation of any regulatory or
governmental body having jurisdiction over the Company or any of
its subsidiaries except such breaches of defaults which would not
have a Material Adverse Effect;
(11) all filings incorporated by reference in the
Prospectus, when they were filed with the Commission, complied as
to form in all material respects with the requirements of the
Exchange Act;
(12) such counsel have no reason to believe that any of such
documents, when they were so filed, contained an untrue statement
of a material fact or omitted
14
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading;
such counsel need express no opinion as to the financial
statements or other financial or statistical data contained in
any such document;
(13) to such counsel's knowledge, all offers and sales of
the Company's capital stock prior to the date hereof were either
(1) made pursuant to a registration statement filed by the
Company with the Commission under the 1933 Act or (2) at all
relevant times exempt from the registration requirements of the
1933 Act and in any such case were duly registered or the subject
of an available exemption from the registration requirements of
the applicable state securities or blue sky laws;
(14) the Company is not an "investment company" or a person
"controlled by" an "investment company" within the meaning of the
Investment Company Act.
In rendering such opinion, such counsel may rely and state that they
are relying upon the certificate of Registrar and Transfer Company, the
transfer agent for the Common Stock, as to the number of shares of Common
Stock at any time or times outstanding, and that insofar as their opinion
under clause (7) above relates to the accuracy and completeness of the
Prospectus and Registration Statement, it is based upon a general review
with the Company's representatives and independent accountants of the
information contained therein, without independent verification by such
counsel of the accuracy or completeness of such information. Such counsel
may also rely upon the opinions of other competent counsel and, as to
factual matters, on certificates of the Selling Stockholders and of
officers of the Company and of state officials, in which case their opinion
is to state that they are so doing and copies of said opinions or
certificates are to be attached to the opinion unless said opinions or
certificates (or, in the case of certificates, the information therein)
have been furnished to the Representatives in other form.
Such counsel's opinion shall be limited to matters governed by federal
securities laws and by the General Corporation Law of the State of
Maryland. The opinion shall be interpreted according to the Legal Opinion
Accord of the Section of Business Law of The American Bar Association
(1991) (the "ACCORD"). For purposes of such opinions, no proceedings shall
be deemed to be pending, no order or stop order shall be deemed to be
issued, and no action shall be deemed to be instituted unless, in each
case, a director or executive officer of the Company shall have received a
copy of such proceedings, order, stop order or action. For purposes of such
opinion, no proceedings shall be deemed to be threatened unless the
potential litigant or government authority has manifested in writing to the
directors or management of the Company, or to counsel thereof, a present
intention to initiate such litigation or proceedings. In addition, such
opinion may be limited to present statutes, regulations and judicial
interpretations and to facts as they presently exist as of the date of such
opinion, In rendering such opinion, such counsel need assume no obligation
to revise or supplement it should the present laws be changed by
legislative or regulatory action, judicial action or otherwise. Such
counsel may make certain customary assumptions relating to parties other
than the Company.
In addition, in lieu of an opinion with respect to paragraph 12 above,
such counsel may confirm in a separate letter that in connection with the
preparation of the Registration Statement, they have participated in
conferences with officers, employees and other representatives of the
Company, independent accountants of the Company, the Underwriters and
15
counsel for the Underwriters, at which the contents of the Registration
Statement and Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus, and has not made any independent check or
verification thereof, on the basis of the foregoing (relying as to
materiality to a large extent upon the statements of officers, employees
and other representatives of the Company), such counsel have no reason to
believe that either the Registration Statement (including the information
deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable) or
the Prospectus, or the Registration Statement or the Prospectus as amended
or supplemented (except as aforesaid), as of their respective effective
dates, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading or that the Prospectus as amended or supplemented, if
applicable, as of the First Closing Date or the Second Closing Date, as the
case may be, contained any untrue statement of a material fact or omitted
to state any material fact necessary to make the statements therein not
misleading in light of the circumstances under which they were made (it
being understood that, in each case, such counsel need express no view with
respect to the financial statements and other financial and statistical
data and schedules included in the Registration Statement or Prospectus or
the information from the Underwriters in the Prospectus as described in
Section 3).
(ii) an opinion of counsel for each of the Selling Stockholders
(which may be Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P) addressed to the
Underwriters and dated the First Closing Date or the Second Closing
date, as the case may be, to the effect that:
(1) to such counsel's knowledge, this Agreement and the
Pricing Agreement have been duly authorized, executed and
delivered by or on behalf of each such Selling Stockholder; the
Agent and the Custodian for each such Selling Stockholder have
been duly and validly authorized to carry out all transactions
contemplated herein on behalf of each such Selling Stockholder;
and the performance of this Agreement and the Pricing Agreement
and the consummation of the transactions herein contemplated by
such Selling Stockholders will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any indenture, mortgage, deed of
trust, note agreement or other agreement or instrument known to
such counsel to which any of such Selling Stockholders is a party
or by which any are bound or to which any of the property of such
Selling Stockholders is subject, or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over any of such Selling Stockholders or any
of their properties; and no consent, approval, authorization or
order of any court or governmental agency or body is required for
the consummation of the transactions contemplated by this
Agreement and the Pricing Agreement in connection with the sale
of Shares to be sold by such Selling Stockholders hereunder,
except such as have been obtained under the 1933 Act (and such as
may be required under applicable blue sky laws in connection with
the purchase and distribution of such Shares by the Underwriters
and the clearance of such offering with the NASD as to which such
counsel need express no opinion); and
(2) to such counsel's knowledge, each Selling Stockholder
has full right, power and authority to enter into this Agreement
and the Pricing Agreement and to sell, transfer and deliver the
Shares to be sold on the First Closing Date or the Second Closing
Date, as the case may be, by such Selling Stockholder hereunder
and good and marketable title to such Shares so sold, free and
clear of all voting trust arrangements, liens, encumbrances,
equities, claims and community property rights
16
whatsoever, has been transferred to the Underwriters (who counsel
may assume to be bona fide purchasers) who have purchased such
Shares hereunder.
In addition, in a separate letter, counsel shall confirm that, although
such counsel need not pass upon, and need not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus and need not make any independent
check or verification thereof, during the course of such participation (relying
as to materiality to a large extent upon the Selling Stockholder Questionnaires
completed by each Selling Stockholder, the statements of officers and other
representatives of the Company), no facts have come to such counsel's attention
that causes such counsel to believe either the Registration Statement (including
the information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) and/or Rule 434, if applicable) at the
time it became effective, insofar as it relates to such Selling Stockholder,
contained an untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading or that
the Prospectus, as amended or supplemented, if applicable, as of its date and as
of the First Closing Date or the Second Closing Date, as the case may be,
insofar as it relates to such Selling Stockholder, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(iii) Such opinion or opinions of Sidley Xxxxxx Xxxxx & Xxxx,
counsel for the Underwriters, dated the First Closing Date or the
Second Closing Date, as the case may be, with respect to the
incorporation of the Company, the validity of the Shares to be sold by
the Company, the Registration Statement and the Prospectus and other
related matters as you may reasonably require, and the Company shall
have furnished to such counsel such documents and shall have exhibited
to them such papers and records as they request for the purpose of
enabling them to pass upon such matters.
(iv) A certificate of the chief executive officer and the
principal financial officer of the Company, dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect
that:
(1) the representations and warranties relating to the
Company set forth in Section 2 of this Agreement are true and
correct as of the date of this Agreement and as of the First
Closing Date or the Second Closing Date, as the case may be, and
the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to such Closing Date; and
(2) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary
prospectus filed as a part of the Registration Statement or any
amendment thereto; no stop order suspending the effectiveness of
the Registration Statement has been issued; and to the best
knowledge of the respective signers, no proceedings for that
purpose have been instituted or are pending or contemplated under
the 1933 Act.
The delivery of the certificate provided for in this subparagraph
shall be and constitute a representation and warranty of the Company
as to the facts required in the immediately foregoing clauses (1) and
(2) of this subparagraph to be set forth in said certificate.
(v) A certificate of each Selling Stockholder signed by the Agent
dated the First Closing Date or the Second Closing Date, as the case
may be, to the effect that the representations and warranties of such
Selling Stockholder set forth in Section 3 of this Agreement are true
and correct as of such date and such Selling Stockholder has complied
17
with all the agreements and satisfied all the conditions on the part
of such Selling Stockholder to be performed or satisfied at or prior
to such date.
(vi) At the time the Pricing Agreement is executed and also on
the First Closing Date or the Second Closing Date, as the case may be,
there shall be delivered to you a letter addressed to you, as
Representatives of the Underwriters, from PricewaterhouseCoopers LLP,
independent accountants, the first one to be dated the date of the
Pricing Agreement, the second one to be dated the First Closing Date
and the third one (in the event of a second closing) to be dated the
Second Closing Date, in such form reasonably satisfactory to Sidley
Xxxxxx Xxxxx & Xxxx, counsel for the Underwriters. There shall not
have been any change specified in the letters referred to in this
subparagraph which makes it impractical or inadvisable in the judgment
of the Representatives to proceed with the public offering or purchase
of the Shares as contemplated hereby.
(vii) Such further certificates and documents as you may
reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to Sidley Xxxxxx Xxxxx & Xxxx, counsel for the Underwriters, which approval
shall not be unreasonably withheld. The Company shall furnish you with such
manually signed or conformed copies of such opinions, certificates, letters and
documents as you reasonably request.
If any condition to the Underwriters' obligations hereunder to be satisfied
prior to or at the First Closing Date is not so satisfied, this Agreement at
your election will terminate upon notification to the Company and the Selling
Stockholders without liability on the part of any Underwriter or the Company or
any Selling Stockholder, except for the expenses to be paid or reimbursed by the
Company pursuant to Sections 7 and 9 hereof and except to the extent provided in
Section 11 hereof.
SECTION 9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale to the
Underwriters of the Shares on the First Closing Date is not consummated because
any condition of the Underwriters' obligations hereunder is not satisfied or
because of any refusal, inability or failure on the part of the Company or the
Selling Stockholder to perform any agreement herein or to comply with any
provision hereof, unless such failure to satisfy such condition or to comply
with any provision hereof is due to the default or omission of any Underwriter,
the Company agrees to reimburse you and the other Underwriters upon demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been reasonably incurred by you and them in connection
with the proposed purchase and the sale of the Shares. Any such termination
shall be without liability of any party to any other party except that the
provisions of this Section, Section 7 and Section 11 shall at all times be
effective and shall apply.
SECTION 10. EFFECTIVENESS OF REGISTRATION STATEMENT. You, the Company and
the Selling Stockholder will use your, its and their best efforts to cause the
Registration Statement to become effective, if it has not yet become effective,
and to prevent the issuance of any stop order suspending the effectiveness of
the Registration Statement and, if such stop order be issued, to obtain as soon
as possible the lifting thereof.
SECTION 11. INDEMNIFICATION. (a) (i) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the 1933 Act or the Exchange Act against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the 1933 Act,
the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise (including in settlement of any litigation if such
settlement is effected with the written consent of the Company), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, including the information
deemed to be part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A and/or Rule 434, if applicable, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
18
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 and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that (i) any
such loss, claim, 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 Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with the
written information with respect to which the Underwriters have made
representations and warranties in Section 4 hereof or with respect to which the
Selling Stockholders alone have made representations and warranties in Section 3
hereof; or (ii) if such statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus and (1) any such loss,
claim, damage or liability suffered or incurred by any Underwriter (or any
person who controls any Underwriter) resulted from an action, claim or suit by
any person who purchased Shares which are the subject thereof from such
Underwriter in the offering and (2) such Underwriter failed to deliver or
provide a copy of the Prospectus to such person at or prior to the confirmation
of the sale of such Shares in any case where such delivery is required by the
1933 Act. In addition to its other obligations under this Section 11(a), the
Company agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
this Section 10(a), it will reimburse the Underwriters on a monthly basis for
all reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Company's obligation to reimburse the
Underwriters for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(ii) Each Selling Stockholder, severally and not jointly, agrees
to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of the 1933 Act
or the Exchange Act and the Company and each person, if any, who
controls the Company against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter, the Company
or their respective controlling persons may become subject under the
1933 Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of
the Company), to the same extent as the foregoing indemnity to each
Underwriter set forth in the immediately preceding paragraph, but only
with reference to information provided in writing by such Selling
Stockholder to the Company specifically for use in the preparation of
the documents referred to in the preceding paragraph.
(iii) Without limiting the full extent of the Company's agreement
to indemnify each Underwriter, as herein provided, each Selling
Stockholder shall be liable under the indemnity agreements contained
in this Section 11(a) only for an amount not exceeding the proceeds
received by such Selling Stockholder from the sale of Shares
hereunder.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers, and each Selling
Stockholder and each person, if any, who controls the Company within the
meaning of the 1933 Act or the Exchange Act, (A "CONTROLLING PERSON")
against any losses, claims, damages or liabilities to which the Company, or
any such director, officer, Selling Stockholder or Controlling Person may
become subject under the 1933 Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the
written consent of such Underwriter), insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue or alleged untrue statement of any material fact
contained in the
19
Registration Statement, any preliminary prospectus, the Prospectus, or any
amendment or supplement thereto, 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 Prospectus, or any amendment or supplement thereto in
reliance upon and in conformity with the written information with respect
to which the Underwriters have made representations and warranties in
Section 4 hereof and will reimburse any legal or other expenses reasonably
incurred by the Company, or any such director, officer, Selling Stockholder
or Controlling Person in connection with investigating or defending any
such loss, claim, damage, liability or action. In addition to their other
obligations under this Section 11(b), the Underwriters agree that, as an
interim measure during the pendency of any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in this Section
11(b), they will reimburse the Company and the Selling Stockholders on a
monthly basis for all reasonable and documented legal and other expenses
incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability
of the Underwriters' obligation to reimburse the Company and the Selling
Stockholders for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction.
This indemnity agreement will be in addition to any liability which such
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
11 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 11, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party except to the extent that the indemnifying party was prejudiced by
such failure to notify. In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with all other
indemnifying parties similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
party and counsel for the indemnifying party and the indemnified party
shall have reasonably advised that there may be legal defenses available to
the indemnified party and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, or the
indemnified and indemnifying parties may have conflicting interests which
would make it inappropriate for the same counsel to represent both of them,
the indemnified party or parties shall have the right to select separate
counsel to assume such legal defense and otherwise to participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 11 for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof unless (i) the indemnified party shall have employed
such counsel in connection with the assumption of legal defense in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the
Representatives (or the Selling Stockholders if none of the indemnified
parties is an Underwriter) in the case of paragraph (a) representing all
indemnified parties not having different or additional defenses or
potential conflicting interest among themselves who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in
20
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability arising out of such proceeding.
(d) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof in
respect of any losses, claims, damages or liabilities referred to therein,
then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Stockholders and the
Underwriters from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company,
the Selling Stockholders and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
respective relative benefits received by the Company, the Selling
Stockholders and the Underwriters shall be deemed to be in the same
proportion in the case of the Company and the Selling Stockholders, as the
total price paid to the Company and the Selling Stockholders for the Shares
by the Underwriters (net of underwriting discount but before deducting
expenses), and in the case of the Underwriters as the underwriting discount
received by them bears to the total of such amounts paid to the Company and
the Selling Stockholders and received by the Underwriters as underwriting
discount in each case as contemplated by the Prospectus. The relative fault
of the Company and the Selling Stockholders and the Underwriters shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company or by the
Selling Stockholders or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party
as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section
11, 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 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section are several in proportions to their
respective underwriting commitments and not joint.
(e) The provisions of this Section shall survive any termination of
this Agreement.
SECTION 12. DEFAULT OF UNDERWRITERS. It shall be a condition to the
agreement and obligation of the Company and the Selling Stockholders to sell and
deliver the Shares hereunder, and of each Underwriter to purchase the Shares
hereunder, that, except as hereinafter in this paragraph provided, each of the
Underwriters shall purchase and pay for all Shares agreed to be purchased by
such Underwriter hereunder upon tender to the Representatives of all such Shares
in accordance with the terms hereof. If any Underwriter or Underwriters default
in their obligations to purchase Shares hereunder on the First Closing Date and
the aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10 percent of the total number of
Shares which the Underwriters are obligated to purchase on the First Closing
Date, the Representatives may make arrangements satisfactory to the Company and
the Selling Stockholders
21
for the purchase of such Shares by other persons, including any of the
Underwriters, but if no such arrangements are made by such date the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Shares which such defaulting
Underwriters agreed but failed to purchase on such date. If any Underwriter or
Underwriters so default and the aggregate number of Shares with respect to which
such default or defaults occur is more than the above percentage and
arrangements satisfactory to the Representatives and the Company and the Selling
Stockholders for the purchase of such Shares by other persons are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any nondefaulting Underwriter or the Company, except
for the expenses to be paid by the Company to the nondefaulting Underwriters
pursuant to Section 7 (other than Section 7 (ii)) hereof and except to the
extent provided in Section 11 hereof.
In the event that Shares to which a default relates are to be purchased by
the nondefaulting Underwriters or by another party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
SECTION 13. EFFECTIVE DATE. This Agreement shall become effective
immediately as to Sections 7, 9, 11, 14 and 20 and as to all other provisions at
10:00 A.M., Chicago Time, on the day following the date upon which the Pricing
Agreement is executed and delivered, unless such a day is a Saturday, Sunday or
holiday (and in that event this Agreement shall become effective at such hour on
the business day next succeeding such Saturday, Sunday or holiday); but this
Agreement shall nevertheless become effective at such earlier time after the
Pricing Agreement is executed and delivered as you may determine on and by
notice to the Company and the Selling Stockholders or by release of any Shares
for sale to the public. For the purposes of this Section, the Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
telegrams (i) advising Underwriters that the Shares are released for public
offering, or (ii) offering the Shares for sale to securities dealers, whichever
may occur first.
SECTION 14. TERMINATION. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to you
and the Sgent or by you by notice to the Company and the Agent at any time
prior to the time this Agreement shall become effective as to all its
provisions, and any such termination shall be without liability on the part
of the Company or the Selling Stockholders to any Underwriter (except for
the expenses to be paid or reimbursed pursuant to Section 7 hereof and
except to the extent provided in Section 11 hereof) or of any Underwriter
to the Company or the Selling Stockholders (except to the extent provided
in Section 11 hereof).
(b) This Agreement may also be terminated by you prior to the First
Closing Date, and the option referred to in the third paragraph of Section
5, if exercised, may be cancelled at any time prior to the Second Closing
Date, if (i) trading in any securities of the Company shall have been
suspended or materially limited by the Commission or the Nasdaq National
Market or trading generally on the American Stock Exchange or the New York
Stock Exchange or Nasdaq National Market shall have been suspended or
materially limited or minimum or maximum prices shall have been established
or maximum ranges for prices shall have been required on such exchange or
market, or (ii) a banking moratorium shall have been declared by Illinois,
New York, or United States banking authorities or a material disruption
shall have occurred in commercial banking or securities settlement or
clearance services in the United States, or (iii) there shall have been any
adverse change in financial markets or in political, economic or financial
conditions which, in the opinion of the Representatives,
22
either renders it impracticable or inadvisable to proceed with the offering
and sale of the Shares on the terms set forth in the Prospectus or
materially and adversely affects the market for the Shares, or (iv) there
shall have been an outbreak or escalation of major armed hostilities
between the United States and any foreign power or other calamity or crisis
or change or development involving a prospective change in political,
economic or financial conditions which in the opinion of the
Representatives makes it impractical or inadvisable to offer or sell the
Shares. Any termination pursuant to this paragraph (b) shall be without
liability on the part of any Underwriter to the Company or the Selling
Stockholders (except to the extent provided in Section 11 hereof) or on the
part of the Company or the Selling Stockholders to any Underwriter (except
for expenses to be paid or reimbursed pursuant to Section 7 hereof and
except to the extent provided in Section 11 hereof).
SECTION 15. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholders and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
principals, members, officers or directors or any controlling person or the
Selling Stockholders, as the case may be, and will survive delivery of and
payment for the Shares sold hereunder.
SECTION 16. NOTICES. All communications hereunder will be in writing and,
if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o Xxxxxxx Xxxxx & Company, L.L.C., 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, with a copy to Xxxxx X. Xxxxxx c/x Xxxxxx Xxxxxx Xxxxx
& Xxxx, Bank Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000; if sent to the Company will be
mailed, delivered or telegraphed and confirmed to the Company at its corporate
headquarters with a copy to Xxxxxxx X. Xxxxxxx c/o Elias, Matz, Xxxxxxx &
Xxxxxxx L.L.P., 000 00xx Xxxxxx, X.X. Xxxxxxxxxx, X.X. 00000; and if sent to the
Selling Stockholders will be mailed, delivered or telegraphed and confirmed to
the Agent and the Custodian at such address as may have previously furnished to
the Company and the Representatives with a copy to Xxxxxxx X. Xxxxxxx, c/o
Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., 000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
SECTION 17. SUCCESSORS. This Agreement and the Pricing Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors, personal representatives and assigns, and to the benefit of the
officers and directors and controlling persons referred to in Section 11, and no
other person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Shares as such from any of the
Underwriters merely by reason of such purchase.
SECTION 18. REPRESENTATION OF UNDERWRITERS. You will act as Representatives
for the several Underwriters in connection with this financing, and any action
under or in respect of this Agreement taken by you will be binding upon all the
Underwriters.
SECTION 19. PARTIAL UNENFORCEABILITY. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
SECTION 20. APPLICABLE LAW. This Agreement and the Pricing Agreement shall
be governed by and construed in accordance with the laws of the State of
Illinois.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company, the Selling Stockholders and the
several Underwriters including you, all in accordance with its terms.
Very truly yours,
MCSI, Inc.
23
By:
----------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
SELLING STOCKHOLDERS
By:
-------------------
Xxxxxxx X. Xxxxxx, Attorney-in-Fact
for the Selling Stockholders
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
XXXXXXX XXXXX & COMPANY, L.L.C.
FRIEDMAN, BILLINGS, XXXXXX & CO, INC.
Acting as Representatives of the
several Underwriters named in
Schedule A.
By Xxxxxxx Xxxxx & Company, L.L.C.
By__________________________________
Principal
24
SCHEDULE A
Number of
Firm Shares
Underwriter to be Purchased
----------- ---------------
Xxxxxxx Xxxxx & Company, L.L.C.
Friedman, Billings, Xxxxxx & Co., Inc.
---------
TOTAL 4,500,000
---------
SCHEDULE B
Number of
Number of Firm Option Shares
Shares to be Sold to be Sold
----------------- ----------
Company 4,000,000
Selling Stockholders 500,000
[names]
------------ ------------
TOTAL 4,500,000 675,000
========= =======
EXHIBIT A
MCSI, INC.
4,500,000 Shares Common Stock(1)
PRICING AGREEMENT
_______________, 2001
Xxxxxxx Xxxxx & Company, L.L.C.
Friedman, Billings, Xxxxxx & Co., Inc.
As Representatives of the Several
Underwriters
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the
Underwriting Agreement dated _________________, 2001
(the "
UNDERWRITING AGREEMENT") relating to the sale by the Company and the
Selling Stockholders and the purchase by the several Underwriters for whom
Xxxxxxx Xxxxx & Company, L.L.C. and Friedman, Billings, Xxxxxx & Co., Inc. are
acting as representatives (the "REPRESENTATIVES"), of the above Shares. All
terms herein shall have the definitions contained in the
Underwriting Agreement
except as otherwise defined herein.
Pursuant to Section 5 of the
Underwriting Agreement, the Company and each
of the Selling Stockholders agree with the Representatives as follows:
1. The public offering price per share for the Shares shall be $__________.
2. The purchase price per share for the Shares to be paid by the several
Underwriters shall be $_____________, being an amount equal to the public
offering price set forth above less $____________ per share.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters,
including you, all in accordance with its terms.
Very truly yours,
MCSI, INC.
By:
----------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
SELLING STOCKHOLDERS
By:
-------------------
Xxxxxxx X. Xxxxxx, Attorney-in-Fact
or the Selling Stockholders
--------
1 Plus an option to acquire up to 675,000 additional shares to cover
overallotments.
2
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX & COMPANY, L.L.C.
FRIEDMAN, BILLINGS, XXXXXX & CO, INC.
Acting as Representatives of the
several Underwriters
By Xxxxxxx Xxxxx & Company, L.L.C.
By:
--------------------------------
Principal
3
