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EXHIBIT 1
DRAFT 2/11/98
UniFirst Corporation
2,000,000 Shares of Common Stock(1)
UNDERWRITING AGREEMENT
_______________, 1998
Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. Introductory. UniFirst Corporation, a Massachusetts
corporation ("Company"), has an authorized capital stock consisting of 2,000,000
shares of Preferred Stock, $1.00 par value per share, of which no shares are
outstanding as of the date hereof, 20,000,000 shares of Class B Common Stock,
$.10 par value per share ("Class B Common Stock"), of which 12,606,744 shares
will be outstanding immediately prior to the closing of the offering
("Offering") of shares contemplated by this Agreement, and 30,000,000 shares of
Common Stock, $.10 par value per share ("Common Stock"), of which 7,903,864
shares will be outstanding immediately prior to the closing of the Offering.
Certain stockholders of the Company (collectively referred to as the "Selling
Stockholders" and named in Schedule I hereto) propose to sell 2,000,000 shares
(the "Firm Shares") of the Company's issued and outstanding Common Stock.(2)
Xxxxxxx Xxxxx & Company, L.L.C. is the sole Underwriter in the Offering
(hereinafter referred to as the "Underwriter" or "you"). In addition, certain of
the Selling Stockholders propose to grant to the Underwriter an option to
purchase up to 300,000 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."
You have advised the Company and the Selling Stockholders that you propose
to make a public offering 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 Underwriter,
the Company, the Selling Stockholders and the Underwriter 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
Underwriter 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.
The Company and each of the Selling Stockholders hereby confirm their
agreements with the Underwriter as follows:
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(1) Plus an option to acquire up to 300,000 additional shares to cover
overallotments.
(2) Immediately prior to the closing of the Offering, all of the shares to be
sold by the Selling Stockholders will be shares of Class B Common Stock,
and such shares will automatically convert into shares of Common Stock upon
the closing of the Offering.
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SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriter that:
(a) A registration statement on Form S-3 (File No. 33-_______) 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 three signed
copies of such registration statement and amendments, together with three
copies of all documents incorporated by reference therein, three copies 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 Underwriter.
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 Underwriter 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
Underwriter 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 Underwriter 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 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 the documents
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 document filed 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 and defined as an Incorporated
Document herein.
The Incorporated Documents, when they were or will be 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 not
to 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
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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 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 the
Underwriter specifically 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, have an office, 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 Company and its
subsidiaries taken as a whole; 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) 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 free of preemptive or similar
rights, and conform to the description thereof contained in the Prospectus.
(f) The making and performance by the Company of this Agreement and
the Pricing Agreement have been duly authorized by all necessary corporate
action and will not violate any provision of the Company's charter or
bylaws and 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 and blue sky
laws applicable to the public offering of the Shares by the Underwriter.
This Agreement has been duly executed and delivered by the Company.
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(g) The accountants who have expressed their opinions with respect to
certain of the financial statements included or incorporated by reference
in the Registration Statement are independent accountants as required by
the 1933 Act.
(h) 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 results of operations
and cash flows 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 "Summary Financial Data" and "Selected Consolidated Financial Data"
presents fairly on the basis stated in the Prospectus, the information set
forth therein.
(i) 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 are material to the
Company and its subsidiaries taken as a whole.
(j) 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 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.
(k) There are no holders of securities of the Company having rights to
registration thereof or preemptive rights to purchase Common Stock.
(l) 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, 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.
(m) The Company has not taken and will not take, 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.
(n) Subsequent to the respective dates as of which information is
given in the Registration Statement and 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 change in their capital stock,
short-term debt or long-term debt.
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(o) The Company agrees not to sell, contract to sell or otherwise
dispose of any Common Stock or securities convertible into Common Stock for
a period of 90 days after this Agreement becomes effective without the
prior written consent of the Underwriter. The Company has obtained similar
agreements from each of its officers and directors.
(p) 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.
(q) 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. 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 a material adverse effect upon the
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries taken as a whole.
(r) 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 upon the
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries taken as a whole.
(s) All offers and sales of the Company's capital stock prior to the
date hereof were at all relevant times registered pursuant to the
requirements of the 1933 Act or exempt from the registration requirements
thereof and were duly registered with or the subject of an available
exemption from the registration requirements of the applicable state
securities or blue sky laws.
(t) 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, or to the knowledge of the
Company might be, asserted against the Company or any of its properties or
assets that would or could be expected to have a material adverse affect
upon the condition (financial or otherwise) or results of operations of the
Company and its subsidiaries taken as a whole.
(u) 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 are duly listed on
the New York Stock Exchange.
(v) 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").
(w) Neither the Company nor any director, executive officer, agent,
employee or other person associated with or acting on behalf of the Company
has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity;
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is in
violation of any provisions of the Foreign Corrupt Practices Act of 1972;
or made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
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SECTION 3. Representations, Warranties and Covenants of the Selling
Stockholders.
(a) Each Selling Stockholder severally represents and warrants to, and
agrees with, the Company and the Underwriter that:
(i) Such Selling Stockholder has, and on the First Closing Date or the
Second Closing Date hereinafter defined, as the case may be, will have,
valid and 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 Underwriter will acquire valid and marketable title thereto,
free and clear of all voting trust arrangements, liens, encumbrances,
equities, claims and community property rights.
(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 sale or resale of the Shares.
(iii) The execution and delivery by such Selling Stockholder of, and
the performance by such Selling Stockholder of its obligations under, this
Agreement and the Pricing Agreement will not contravene any provision of
applicable law, or any agreement or other instrument binding upon such
Selling Stockholder or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over such Selling Stockholder,
and no consent, approval, authorization or order of or qualification with
any governmental body or agency is required for the performance by such
Selling Stockholder of its obligations under this Agreement and the Pricing
Agreement, except such as may be required by the securities or blue sky
laws of the various states in connection with the offer and sale of the
Shares.
[(iv) Such Selling Stockholder has executed and delivered a Power of
Attorney ("Power of Attorney") among the Selling Stockholder and Xxxxxx X.
Xxxxxxx and Xxxx X. Xxxxxxxx (the "Agents"), naming the Agents as such
Selling Stockholder's attorneys-in-fact (and, by the execution by any Agent
of this Agreement, such Agent hereby represents and warrants that he has
been duly appointed as attorney-in-fact by the Selling Stockholders
pursuant to the Power of Attorney) for the purpose of entering into and
carrying out this Agreement and the Pricing Agreement, and the Power of
Attorney has been duly executed by such Selling Stockholder and a copy
thereof has been delivered to you.]
[(v) Such Selling Stockholder further represents, warrants and agrees
that such Selling Stockholder has deposited in custody, under a Custody
Agreement ("Custody Agreement") with _____________________________, 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 Underwriter and the other
Selling Stockholders, that the arrangements made for such custody, and the
appointment of the Agents 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, by the death or
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incapacity of such Selling Stockholder or, by the occurrence of any other
event. If any individual Selling Stockholder should die or become
incapacitated, 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, 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.]
(vi) Each preliminary prospectus, insofar as it has related to such
Selling Stockholder and, to the knowledge of such Selling Stockholder in
all other respects, as of its date, 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 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
hereinafter defined, as the case may be, (1) as to such parts of the
Registration Statement and the Prospectus and any amendments or supplements
thereto, as they relate to such Selling Stockholder, and the Registration
Statement and the Prospectus and any amendments or supplements thereto, to
the knowledge of such Selling Stockholder in all other respects, 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
(2) neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, as it relates to such Selling Stockholder,
and, to the knowledge of such Selling Stockholder in all other respects,
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 to make the statements therein not misleading; provided that
neither clause (1) nor (2) shall have any effect if information has been
given by such Selling Stockholder to the Company and the Underwriter in
writing which would eliminate or remedy any such untrue statement or
omission.
(vii) Such Selling Stockholder agrees with the Company and the
Underwriter not to sell, contract to sell or otherwise dispose of any
Common Stock for a period of 90 days after this Agreement becomes effective
without the prior written consent of the Underwriter.
(b) Each of the Selling Stockholders severally represents and warrants that
the representations and warranties of the Company set forth in Section 2 of this
Agreement are true and correct.
(c) 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 Underwriter. The
Underwriter represents and warrants 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, (b) in the
stabilization paragraph on the second page of the Prospectus and (c) in the
third paragraph under the caption "Underwriting" in the Prospectus was furnished
to the Company by and on behalf of the Underwriter for use in connection with
the preparation of the Registration Statement and is correct and complete in all
material respects.
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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 Selling Stockholders agree to sell to
the Underwriter and the Underwriter agrees to purchase from the Selling
Stockholders the respective number of Firm Shares set forth opposite the names
of the Selling Stockholders in Schedule I hereto at the price per share set
forth in the Pricing Agreement. The initial public offering price and the
purchase price shall be set forth in the Pricing Agreement.
At 9:00 A.M., Chicago 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 Underwriter and the
Company, the [Custodian] will deliver to you at the offices of counsel for the
Selling Stockholders or through the facilities of The Depository Trust Company
for the account of the Underwriter, certificates representing the Firm Shares to
be sold by them, respectively, against payment of the purchase price therefor in
immediately available funds payable to the order of the [Custodian]. 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
[Custodian] prior to 10:00 A.M., Chicago Time, on the second business day
preceding the First Closing Date, and will be made available at the Company's
expense for checking and packaging by the Underwriter at 10:00 A.M., Chicago
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 Selling Stockholders.
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 certain of the Selling Stockholders hereby grant an option to the
Underwriter to purchase up to an aggregate of 300,000 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 Underwriter 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 Prospectus upon
notice by you to the Company and the Agents setting forth the aggregate number
of Option Shares as to which the Underwriter is 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 each such Selling Stockholder is
set forth in Schedule I hereto. If less than all Option Shares are to be
purchased, the number of Option Shares to be purchased from each such Selling
Stockholder shall be in the same proportion as the number of Option Shares to be
sold by each bears to the total number of Option Shares. Certificates for the
Option Shares will be made available at the Company's expense for checking and
packaging at 10:00 A.M., Chicago 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.
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
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advise you and the Selling Stockholders 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 Selling Stockholders 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
Underwriter 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 Selling
Stockholders 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 Underwriter shall reasonably
object.
(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 Underwriter with copies of the form of prospectus, in such
numbers as the Underwriter 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 Underwriter with
copies of the form of Rule 434 Prospectus, in such numbers as the
Underwriter 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 thereto,
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
Underwriter 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 the 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 the
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.
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(g) As soon as practicable, but in any event not later than 15 months
after the effective date of the Registration Statement, 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 Underwriter in qualifying or
registering the Shares for sale under the blue sky laws of such
jurisdictions as you designate, and will continue such 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 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;
(iii) as soon as available, of each report of the Company mailed to
stockholders; and (iv) any additional information of a public nature
concerning the Company or its business that you may request.
(k) 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.
(l) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act and the New York Stock Exchange.
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
Underwriter and the expenses incurred by the Underwriter other than those
contemplated by clause (ii) below) 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 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, [the
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Power of Attorney, the Custody Agreement] and a blue sky memorandum; (ii) all
costs, fees and expenses (including legal fees and disbursements of counsel for
the Underwriter) incurred by the Underwriter 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 (iii) all fees and expenses of the Company's transfer agent, 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 Underwriter.
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 Underwriter. The
obligations of the Underwriter 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, the Selling Stockholders 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 Underwriter.
(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 Underwriter 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 Underwriter, 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.
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(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, whether or not arising in the ordinary
course of business, which, in the judgment of the Underwriter, makes it
impractical or inadvisable to proceed with the public offering of the
Shares as contemplated hereby.
(f) There shall have been furnished to you 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 Xxxxxxx, Procter & Xxxx LLP, counsel for the
Company and for the Selling Stockholders, addressed to the Underwriter
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
Commonwealth of Massachusetts with corporate power and authority
to own its properties and conduct its business as described in
the Prospectus; and the Company has been duly qualified to do
business as a foreign corporation under the corporation law of,
and is in good standing as such in, every jurisdiction where the
ownership or leasing of property, or the conduct of its business
requires such qualification except where the failure so to
qualify would not have a material adverse effect upon the
condition (financial or otherwise) or results of operations of
the Company and its subsidiaries taken as a whole;
(2) an opinion to the same general effect as clause (1) of
this subparagraph (i) in respect of each subsidiary of the
Company;
(3) all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized, validly
issued and is fully paid and nonassessable, and 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, 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 and free of preemptive or similar rights;
(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 and free of
preemptive or similar rights;
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(7) the Registration Statement has become effective under
the 1933 Act, and, to the knowledge of such counsel, 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 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; such
counsel has 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 or issue 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 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; 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 1933 Act and applicable blue
sky laws) or the consummation by the Company of any other
transactions contemplated hereby;
(10) the execution and performance of this Agreement 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, 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
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of its subsidiaries or, so far as is known to such counsel,
violate any statute, order, rule or regulation of any regulatory
or govern-mental body having jurisdiction over the Company or any
of its subsidiaries;
(11) all documents 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; and such counsel has no reason to believe that any
of such documents, when they were so filed, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made 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;
(12) 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 either case (1) or (2), and were duly registered
or the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky laws;
(13) with respect to each Selling Stockholder, this
Agreement and the Pricing Agreement have been duly executed and
delivered by or on behalf of each such Selling Stockholder; the
Agents 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 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 Underwriter;
(14) 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 whatsoever, has been transferred to the
Underwriter (who counsel may assume to be bona fide purchasers)
who has purchased such Shares hereunder;
(15) this Agreement and the Pricing Agreement are legal,
valid and binding agreements of each Selling Stockholder except
as enforceability of the same may be limited
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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 with
respect to those provisions relating to indemnities for
liabilities arising under the 1933 Act, as to which no opinion
need be expressed; and
(16) the Power of Attorney and Custody Agreement have been
duly executed and delivered by each Selling Stockholder and
constitute valid and binding agreements of each such Selling
Stockholder in accordance with their respective terms.
In rendering such opinion, such counsel may state that they
are relying upon the certificate 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, 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 otherwise
furnished to the Underwriter.
(ii) Such opinion or opinions of Sidley & Austin, counsel for the
Underwriter, 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.
(iii) A certificate of the chief executive officer and the chief
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 of 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.
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(iv) A certificate of each Selling Stockholder 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 the Selling Stockholder has complied 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.
(v) 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 Underwriter, from Xxxxxx Xxxxxxxx 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, to the effect set forth in Schedule II. There
shall not have been any change or decrease specified in the letters
referred to in this subparagraph which makes it impractical or
inadvisable in the judgment of the Underwriter to proceed with the
public offering of the Shares as contemplated hereby.
(vi) At the time the Pricing Agreement is executed, there shall
be delivered to you a letter from each of the Company's executive
officers and directors and each Selling Stockholder in which each such
person agrees not to sell, contract to sell or otherwise dispose of
any Common Stock (except Common Stock registered and sold in this
offering) for a period of 90 days after the date of the Prospectus
without the prior written consent of Xxxxxxx Xxxxx & Company, L.L.C.
(vii) A certificate of the chief executive officer and chief
financial officer of the Company, dated the First Closing Date or the
Second Closing Date, as the case may be, verifying the truth and
accuracy of any statistical or financial figure included in the
Prospectus which has not been otherwise verified by the letters
referred to in clause (v) above, such verification to include the
provision of documentary evidence supporting any such statistical or
financial figure.
(viii) 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 & Austin, counsel for the Underwriter, 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
request.
If any condition to the Underwriter's 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 Underwriter's Expenses. If the sale to the
Underwriter of the Shares on the First Closing Date is not consummated because
any condition of the Underwriter's obligations hereunder is not satisfied or
because of any refusal, inability or failure on the part of the Company or the
Selling Stockholders 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 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
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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 Stockholders 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) The Company and each Selling
Stockholder jointly and severally agree to indemnify and hold harmless the
Underwriter and each person, if any, who controls the 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 and/or such Selling Stockholders, as the case may be),
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 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 the Underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
the Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that neither the Company nor any Selling Stockholder will 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 written information furnished to the Company by or
on behalf of the Underwriter, specifically for use therein; 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 the Underwriter (or any person who controls the
Underwriter) resulted from an action, claim or suit by any person who purchased
Shares which are the subject thereof from the Underwriter in the offering and
(2) the 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 their other
obligations under this Section 11(a), the Company and the Selling Stockholders
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(a), they will reimburse the Underwriter 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 and the Selling Stockholders' obligation to
reimburse the Underwriter 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 and the Selling Stockholders may otherwise have.
Without limiting the full extent of the Company's agreement to indemnify
the Underwriter, as herein provided, each Selling Stockholder shall be liable
under the indemnity agreements contained in paragraph (a) of this Section only
for an amount not exceeding the proceeds received by such Selling Stockholder
from the sale of Shares hereunder.
(b) The Underwriter will indemnify and hold harmless the Company, each of
its directors, each of its officers who signed the Registration Statement, and
each Selling Stockholder and each person, if any, who controls the Company
within the meaning of the 1933 Act or the Exchange Act, 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
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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 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 Section
4 of this Agreement or any other written information furnished to the Company by
the Underwriter specifically for use in the preparation thereof; 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
Underwriter 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 11(b), it will reimburse the Company and the Selling Stockholders
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
Underwriter's 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 the Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 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, 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 satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it 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 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 next 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 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
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 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.
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(d) If the indemnification provided for in this Section 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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter (net of
underwriting discount but before deducting expenses), and in the case of the
Underwriter 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 Underwriter as underwriting discount in each case as contemplated by the
Prospectus. The relative fault of the Company and the Selling Stockholders and
the Underwriter 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 Underwriter 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 Underwriter 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,
the Underwriter shall not 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.
(e) The provisions of this Section shall survive any termination of this
Agreement.
SECTION 12. Effective Date. This Agreement shall become effective
immediately as to Sections 7, 9, 11 and 13 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 offering the Shares for sale to securities dealers.
SECTION 13. 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 Selling Stockholders or by you by notice to the Company and the
Selling Stockholders at any time prior to the time this Agreement shall
become effective as to all its provisions, and any such termination shall
be without
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liability on the part of the Company or the Selling Stockholders to the
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 the Underwriter to the Company or the Selling Stockholders.
(b) This Agreement may also be terminated by you prior to the First
Closing Date, and the option referred to in Section 5, if exercised, may be
cancelled at any time prior to the Second Closing Date, if (i) trading in
securities on the New York Stock Exchange shall have been suspended or
minimum prices shall have been established on such exchange, or (ii) a
banking moratorium shall have been declared by Illinois, New York, or
United States authorities, or (iii) there shall have been any change in
financial markets or in political, economic or financial conditions which,
in the opinion of the Underwriter, 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 of major
armed hostilities between the United States and any foreign power which in
the opinion of the Underwriter 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 the Underwriter to the Company or the
Selling Stockholders or on the part of the Company to the Underwriter or
the Selling Stockholders (except for expenses to be paid or reimbursed
pursuant to Section 7 hereof and except to the extent provided in Section
11 hereof).
SECTION 14. 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 Underwriter 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
the 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 15. Notices. All communications hereunder will be in writing
and, if sent to the Underwriter will be mailed, delivered or telecopied and
confirmed to you at the address set forth on the first page of this Agreement
with a copy to Xxxxx X. Xxxxxx, Xxxxxx & Xxxxxx, Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000; if sent to the Company will be mailed, delivered or
telecopied and confirmed to the Company at its corporate headquarters with a
copy to Xxxxxxx X. Zemlin, Goodwin, Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx
Xxxxxxxxxxxxx 00000; and if sent to the Selling Stockholders will be mailed,
delivered or telecopied and confirmed to the Agents and the Custodian at such
addresses as they have previously furnished to the Company and the Underwriter,
with a copy to Xxxxxxx X. Zemlin, Goodwin, Procter & Xxxx XXX, Xxxxxxxx Xxxxx,
Xxxxxx Xxxxxxxxxxxxx 00000.
SECTION 16. 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 the
Underwriter merely by reason of such purchase.
SECTION 17. 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 18. Applicable Law. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
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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
Underwriter, all in accordance with its terms.
Very truly yours,
UNIFIRST CORPORATION
By:
-------------------------------------
Chief Executive Officer
The Selling Stockholders Named in
Schedule I hereto
By:
-------------------------------------
Agent and Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
XXXXXXX XXXXX & COMPANY, L.L.C.
By:
-------------------------------------
Principal
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SCHEDULE I
Number of Number of
Firm Shares Option Shares
to be Sold to be Sold
---------- ----------
Selling Stockholders:
--------- -------
TOTAL 2,000,000 300,000
========= =======
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EXHIBIT A
UniFirst Corporation
2,000,000 Shares Common Stock(1)
PRICING AGREEMENT
_______________, 1998
Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated _________________,
1998 (the "Underwriting Agreement") relating to the sale by the Selling
Stockholders and the purchase by the Underwriter of the above referenced 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 Underwriter 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
Underwriter shall be $_____________, being an amount equal to the
public offering price set forth above less $____________ per share.
----------------
(1) Plus an option to acquire up to 300,000 additional shares to cover
overallotments.
24
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
Underwriter, all in accordance with its terms.
Very truly yours,
UNIFIRST CORPORATION
By:
-------------------------------------
Chief Executive Officer
The Selling Stockholders Named in
Schedule I to the Underwriting Agreement
By:
-------------------------------------
Agent and Attorney-in-Fact
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX & COMPANY, L.L.C.
By:
-------------------------------------
Principal
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