EXHIBIT 1.1
5,000,000 SHARES
XXXXX & XXXXX, INC.
COMMON STOCK, PAR VALUE $0.10 PER SHARE
UNDERWRITING AGREEMENT
March 6, 2002
X.X. XXXXXX SECURITIES INC.
SUNTRUST CAPITAL MARKETS, INC.
As Representatives of the several Underwriters
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
Xxxxx & Xxxxx, Inc., a Florida corporation (the "Company"), proposes to
issue and sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of 5,000,000 shares of its common stock, par
value $0.10 per share (the "Firm Securities"). The Company also proposes to
issue and sell to the Underwriters not more than an additional 750,000 shares of
its common stock, par value $0.10 per share (the "Additional Securities"), if
and to the extent that the Underwriters shall have determined to exercise the
right to purchase such Additional Securities granted to the Underwriters in
Section 2 hereof. The Firm Securities and the Additional Securities are
hereinafter collectively referred to as the "Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-75158),
including a prospectus, relating to its debt securities, warrants and shares of
its Common Stock (as hereinafter defined), and has filed with, or transmitted
for filing to, or shall promptly hereafter file with or transmit for filing to,
the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto,
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as amended to the date of this Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement, as may be amended or
supplemented. The term "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. As used herein, the terms "Registration Statement,"
"Basic Prospectus," and "Prospectus" shall include in each case the documents,
if any, incorporated by reference therein. The terms "supplement," "amendment"
and "amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Basic Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company
represents and warrants to and agrees with the Underwriters that:
(a) The Registration Statement has become effective under
the Act; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending
before or, to the knowledge of the Company, threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, will not contain,
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, and (iv)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to the Underwriters furnished to the Company in writing by you
expressly for use therein.
(c) Each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, has the
corporate power and corporate authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing could not
reasonably be expected to have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
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The Company has the corporate power and corporate authority to enter
into this Agreement and to perform its obligations hereunder.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the
Prospectus; and, except as described in or expressly contemplated by
the Prospectus, there are no outstanding rights (including, without
limitation, preemptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock
of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options.
(f) All of the issued shares of common stock of the
Company, par value $0.10 per share (the "Common Stock"), and of each of
its subsidiaries, have been duly authorized and are validly issued,
fully paid and non-assessable, and all of the issued shares of capital
stock of the Company's subsidiaries are owned beneficially by the
Company directly or indirectly, free and clear of all liens, security
interests, pledges, charges, encumbrances, defects, shareholders'
agreements, voting trusts, equities or claims of any nature whatsoever,
except as disclosed in the Prospectus or as set forth in Schedule II
hereto. Other than wholly owned subsidiaries or as disclosed in the
Prospectus or as set forth in Schedule II hereto, the Company does not
own, directly or indirectly, any material capital stock or other equity
securities of any other corporation or any ownership interest in any
partnership, joint venture or other association.
(g) The Securities have been duly authorized and, when
delivered to and paid for by the Underwriters in accordance with the
terms of this Agreement, will be validly issued and will be fully paid
and non-assessable and will conform to the description thereof in the
Prospectus. The issuance of the Securities is not subject to any
preemptive or similar rights.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
including the issuance and sale of the Securities and the use of
proceeds as described in the Prospectus, will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order
or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Company of its
obligations under this 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 Securities and rules and regulations of the
National Association of Securities
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Dealers, Inc. in connection with the purchase and distribution of the
Securities by the Underwriters.
(i) Neither the Company nor any of its subsidiaries is,
or with the giving of notice or the lapse of time or both would be, in
violation of or in default under its certificate of incorporation or
by-laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which individually and in the aggregate are not material to the Company
and its subsidiaries, taken as a whole.
(j) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business,
prospects, management, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, from those set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings
pending or, to the Company's knowledge, threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject other than
proceedings accurately described in the Registration Statement or the
Prospectus and proceedings that could not reasonably be expected to
have a material adverse effect on the Company and its subsidiaries,
taken as whole, or on the power or ability of the Company to perform
its obligations under this Agreement or to consummate the transactions
contemplated hereby.
(l) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(m) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals could not, singly or in the
aggregate, reasonably be expected to have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(n) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-
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up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which could,
singly or in the aggregate, reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(o) Since the date of the latest audited consolidated
financial statements included or incorporated by reference in the
Prospectus, there has not been any material change in the capital
stock, the long-term debt or the short-term debt of the Company or any
of its subsidiaries, other than as set forth in or contemplated by the
Prospectus.
(p) No person has the right to require the Company to
register any securities for offering and sale under the Securities Act
by reason of the filing of the Registration Statement with the
Commission or the issue and sale of the Securities to be sold by the
Company hereunder.
(q) All offers and sales of the Company's capital stock
prior to the date hereof were at all relevant times duly registered
under the Securities Act or exempt from registration requirements of
the Securities Act by reason of Sections 3(b), 4(2) or 4(6) thereof and
were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or Blue
Sky laws.
(r) The Company and its subsidiaries have good and
marketable title to all real and personal property owned by them, in
each case, free and clear of any security interests, liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property to the
Company or any of its subsidiaries, and any real property and buildings
held under lease by the Company or any of its subsidiaries are held
under valid, subsisting and enforceable leases, with such exceptions as
are not material to the Company and its subsidiaries, taken as a whole,
and do not materially interfere with the use made or proposed to be
made of such property and buildings by the Company and its
subsidiaries.
(s) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, adequate rights to use all patents,
patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and licenses
necessary for the conduct of their respective businesses as described
in the Prospectus, except as could not reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. Neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of any third
party with respect to the foregoing which, singly or in the aggregate,
would reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(t) The Company and its subsidiaries have filed all
federal, state and local income and franchise tax returns required to
be filed through the date hereof or have duly requested extensions
thereof, and have paid all taxes shown thereon as due and no tax
deficiency has been determined adversely to the Company or any of its
subsidiaries
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which has had (nor does the Company have any knowledge of any tax
deficiency which will have) a material adverse effect on the condition,
financial or otherwise, or in the earnings, business, prospects,
management, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole.
(u) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company and its subsidiaries and delivered
their report with respect to the audited financial statements in the
Prospectus, are independent public accountants within the meaning of
such term for purposes of the Securities Act and the applicable rules
and regulations thereunder. Except as set forth or otherwise noted in
the Prospectus, the financial statements in the Prospectus were
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, and fairly
present in all material respects the financial condition of the Company
and its subsidiaries as of the dates indicated and the results of
operations, cash flows and changes in stockholders' equity of the
Company and its subsidiaries in respect of the periods for which they
were prepared.
(v) The Company and its subsidiaries possess all
consents, licenses, certificates, authorizations and permits issued by
the appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, except as could not
reasonably be expected to have a material adverse effect on the Company
and its subsidiaries, taken as a whole, and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such consent, license,
certificate, authorization or permit which, singly or in the aggregate,
could reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
2. Agreements to Sell and Purchase. The Company hereby
agrees to sell to the several Underwriters, and each Underwriter, on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company, the number of shares of the Firm Securities set forth opposite
the name of such Underwriter on Schedule I hereto at a purchase price of $29.925
per share (the "Purchase Price").
The Company agrees to sell to the several Underwriters the Additional
Securities, and, on the basis of representations and warranties contained in
this Agreement, and subject to its terms and conditions, the Underwriters shall
have a one-time right to purchase up to 750,000 Additional Securities at the
Purchase Price. Each Underwriter shall have the option to purchase, severally,
from the Company, that portion of the aggregate number of Additional Securities
as to which such election shall have been exercised (to be adjusted so as to
eliminate fractional shares) determined by multiplying such aggregate number of
Additional Securities by a fraction, the numerator of which is the number of
firm Securities set forth opposite the name of such Underwriter on Schedule I
hereto and the denominator of which is the aggregate number of Firm Securities
being purchased from the Company pursuant to this Agreement. If the Underwriters
elect to exercise such option, the Representatives shall so notify the Company
in writing not later
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than 30 days after the date of the Prospectus Supplement, which notice shall
specify the number of Additional Securities to be purchased by the Underwriters
and the date on which such Additional Securities are to be purchased. Such date
may be the same as the Closing Date (as defined below) but not earlier than the
Closing Date nor later than five business days after the date of such notice.
The Company hereby agrees that, without the prior written consent of
the Representatives, it will not, during the period ending 90 days after the
date of the Prospectus Supplement, (i) offer, pledge, announce the intention to
sell, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock (collectively, "Company Securities") or (ii) enter into any
swap, option, future, forward or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the Company Securities,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Company Securities, in cash or otherwise. Notwithstanding
the foregoing, the Company may without such consent (A) issue and sell the
Securities to be sold hereunder, (B) grant stock options under the Company's
employee or director compensation plans or issue Common Stock upon the exercise
of stock options granted under such plans, (C) issue Common Stock upon the
exercise of warrants, convertible securities or other rights to acquire or
purchase Common Stock that are outstanding on the date hereof and described in
the Prospectus and (D) enter into contracts for the sale or issuance of, and
sell or issue, Company Securities in connection with the acquisition by the
Company or any of its subsidiaries of a business or of property or assets or in
connection with any business combination. The Company will notify X.X. Xxxxxx
Securities Inc. within five days of any issuance pursuant to clause (D) of the
preceding sentence.
3. Terms of the Offering. It is understood that the
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
4. Payment and Delivery. Payment for the Firm Securities
shall be made to the Company by wire transfer in immediately available funds
against delivery of such Firm Securities for the accounts of the Underwriters at
10:00 a.m., New York City time, on March 12, 2002, or at such other time on the
same or such other date, not later than March 19, 2002, as shall be designated
in writing by the Representatives. The time and date of such payment are
hereinafter referred to as the "Closing Date."
Payment for any Additional Securities shall be made to the Company by
wire transfer in immediately available funds against delivery of such Additional
Securities for the accounts of the Underwriters at 10:00 a.m., New York City
time, on the date specified in the notice described in Section 2 or at such
other time on the same or on such other date, in any event not later than the
fifth business day thereafter, as shall be designated in writing by the
Representatives. The time and date of such payment are hereinafter
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referred to as the "Option Closing Date."
Certificates for the Firm Securities and Additional Securities shall be
in definitive form or global form, as specified by you, and registered in such
names and in such denominations as you shall request in writing not later than
one full business day prior to the Closing Date or the Option Closing Date, as
the case may be. The certificates evidencing the Firm Securities and Additional
Securities shall be delivered to the Representatives on the Closing Date or the
Option Closing Date, as the case may be, with any transfer taxes payable in
connection with the transfer of the Securities to the Representatives duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate an improvement in the
rating accorded any of the Company's securities or debt by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business, prospects, management, stockholders' equity or
results of operations of the Company and its subsidiaries,
taken as a whole, from those set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) that, in the Representatives'
judgment, is material and adverse and that makes it, in the
Representatives' judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the
Prospectus.
(b) The Representatives shall have received on the
Closing Date a certificate, dated the Closing Date and signed by an
executive officer of the Company with specific knowledge about the
Company's financial matters, to the effect set forth in Section 5(a)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct in all
material respects as of the Closing Date and that the Company has in
all material respects complied with all of the agreements and satisfied
all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
(c) The Representatives shall have received on the
Closing Date an opinion of Xxxxxx Xxxxxxx, general counsel of the
Company, dated the Closing Date, to the effect set forth in Exhibit A
hereto, and an opinion of Holland & Knight LLP, special
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counsel for the Company, dated the Closing Date, to the effect set
forth in Exhibit B hereto. Such opinions shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(d) The Representatives shall have received on the
Closing Date an opinion of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, dated the Closing Date, in form and substance reasonably
satisfactory to it.
(e) The Representatives shall have received, on each of
the date hereof and the Closing Date, a letter dated the date hereof or
the Closing Date, as the case may be, in form and substance reasonably
satisfactory to the Representatives, from Xxxxxx Xxxxxxxx LLP,
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(f) The "lock-up" agreements, each substantially in the
form of Exhibit C hereto, between you and the executive officers and
directors of the Company relating to sales and certain other
dispositions of shares of Company Securities, delivered to you on or
before the date hereof, shall be in full force and effect on the
Closing Date.
(g) The Securities to be delivered on the Closing Date
shall have been approved for listing on the New York Stock Exchange,
subject only to official notice of issuance.
(h) You shall have received such other documents and
certificates as you or your counsel shall reasonably request.
The obligations of the Underwriters to purchase Additional Securities
hereunder are subject to the delivery to the Representatives on the Option
Closing Date of such documents as they may reasonably request with respect to
the good standing of the Company, the due authorization and issuance of the
Additional Securities and other matters related to the issuance of the
Additional Securities.
6. Covenants of the Company. In further consideration of
the agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish to the Representatives in New York City,
without charge, as soon as is reasonably possible after the date of
this Agreement and during the period mentioned in Section 6(c) below,
as many copies of the Prospectus, any documents incorporated by
reference therein, and any supplements and amendments thereto or to the
Registration Statement as the Representatives may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to the Representatives a copy
of each such proposed amendment or
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supplement and not to file any such proposed amendment or supplement to
which the Representatives reasonably object, and to file with the
Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the
public offering of the Securities, the Prospectus is required by law to
be delivered in connection with sales by the Underwriters or any
dealer, any event shall occur or condition exist as a result of which
(i) it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or (ii) if, in
the reasonable opinion of counsel for the Underwriters, it is necessary
to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus to comply with
applicable law, to forthwith prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses the Representatives will furnish to the
Company) to which Securities may have been sold by the Underwriters and
to any other dealers upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Securities under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities herein above specified, (ii) all costs and
expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky memorandum in
connection with the offer and sale of the Securities under state
securities laws and all expenses in connection with the qualification
of the Securities for offer and sale under state securities laws as
provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
memorandum, (iv) all costs and expenses incident to listing the
Securities on the New York Stock Exchange, (v) the cost of printing
certificates representing the Securities, (vi) the costs and charges of
the transfer agent and registrar and (vii) all other costs and expenses
incident to the performance of the
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obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 7 entitled "Indemnity and
Contribution," and the last paragraph of Section 9 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, transfer taxes payable on resale of
any of the Securities by the Underwriters and any advertising expenses
connected with any offers the Underwriters may make.
(f) To make generally available to its security holders
and the Representatives as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the date of the
Prospectus Supplement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder; provided, however, that to the extent such earnings
statement is publicly available via XXXXX, such earnings statement
shall be deemed to have been made generally available.
(g) To file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Securities.
7. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls each such
Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation,
any reasonable legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, except
insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information
relating to an Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein;
provided, however, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this Section 7 with
respect to any preliminary Prospectus to the extent that any such loss,
claim, damage, liability or expense of such Underwriter results from
the fact that such Underwriter sold Securities to a person as to whom
it shall be established that there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the Prospectus (or
of the Prospectus as then amended or supplemented if the Company shall
have furnished such Underwriter with such amendment or supplement
thereto on a timely
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basis), in any case where such delivery is required by applicable law
and the loss, claim, damage, liability or expense of such Underwriter
results from an untrue statement or omission of a material fact
contained in any preliminary Prospectus which was corrected in the
Prospectus (or in the Prospectus as then amended or supplemented if the
Company shall have furnished such Underwriter with such amendment or
supplement thereto on a timely basis). The Company shall notify you
promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement which involves
the Company or an indemnified party (as defined below).
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only
with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, (ii) the indemnifying party
shall have failed within a reasonable time to retain counsel reasonably
satisfactory to the indemnified person or (iii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such reasonable
fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by X.X. Xxxxxx Securities Inc. in the
case of parties indemnified pursuant to Section 7(a), and by the
Company, in the case of parties indemnified pursuant to Section 7(b).
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason
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of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party the amounts it is entitled to be reimbursed hereunder
in accordance with such request prior to the date of such settlement.
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 on claims that are
the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
Section 7(a) or 7(b) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, 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 on the one hand and the Underwriters on the other hand
from the offering of the Securities or (ii) if the allocation provided
by clause 7(d)(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 7(d)(i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand in connection
with the offering of the Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Purchase Price of the Securities.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 7(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the
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immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any reasonable legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 7, in no event shall an Underwriter be
required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages that 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 Securities Act) 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 7 are several in proportion to the
respective number of Firm Securities set forth opposite their names on
Schedule I hereto, and not joint.
(f) The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies that may otherwise
be available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained
in this Section 7 and the representations, warranties and other
statements of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Securities.
8. Termination. This Agreement (or the obligations of the several
Underwriters with respect to the Additional Securities) shall be subject to
termination by notice given by the Representatives to the Company, if (a) after
the execution and delivery of this Agreement and prior to the Closing Date or,
in the case of the Additional Securities, the Option Closing Date, (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the Representatives' judgment, is
material and adverse and (b) in the case of any of the events specified in
clauses 8(a)(i) through 8(a)(iv), such event, singly or together with any other
such event, makes it, in the Representatives' judgment, impracticable to market
the Securities being delivered at the Closing Date or the Option Closing Date,
as the case may be, on the terms and in the manner contemplated in the
Prospectus.
9. Effectiveness. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
-15-
If on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Securities
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Securities set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Securities which such Defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Securities that any Underwriter has agreed
to purchase pursuant to Section 2 be increased pursuant to this Section 9 by a
number in excess of one-tenth of such number of Securities without the written
consent of such Underwriter. If on the Closing Date or the Option Closing Date,
as the case may be, any Underwriter or Underwriters shall fail or refuse to
purchase Securities which it or they have agreed to purchase hereunder on such
date, and the aggregate number of Securities to be purchased with respect to
which such default occurs is more than one-tenth of the aggregate number of
shares to be purchased on such date, and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities are not made
within 36 hours after such default, this Agreement (or the obligations of the
several Underwriters to purchase the Additional Securities, as the case may be)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company. In any such case either you or the Company shall have the right
to postpone the Closing Date (or, in the case of the Additional Securities, the
Option Closing Date), but in no event for longer than seven days, in order that
the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any material failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters for all out-of-pocket
expenses (including the reasonable fees and disbursements of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement or the
offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Company and the Underwriters, any controlling
persons referred to herein and their
-16-
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm, or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Notices. Any action by the Underwriters hereunder may be taken
by X.X. Xxxxxx Securities Inc. alone on behalf of the Underwriters, and any such
action taken by X.X. Xxxxxx Securities Inc. shall be binding upon the
Underwriters. All notices and other communications under this Agreement shall be
in writing and mailed, delivered or sent by facsimile transmission to: if sent
to the Underwriters, c/o X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Equity Capital Markets, facsimile number (212)
622-6037, and if sent to the Company, Xxxxx & Xxxxx, Inc., 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxxxxx, facsimile
number (000) 000-0000.
13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
S-1
Very truly yours,
XXXXX & XXXXX, INC.
By: /s/ X. Xxxxx Xxxxx
--------------------------------
Name: X. Xxxxx Xxxxx
Title: Chairman of the Board,
President and Chief
Executive Officer
Accepted as of the date hereof
X.X. XXXXXX SECURITIES INC.
SUNTRUST CAPITAL MARKETS, INC.
Acting severally on behalf of themselves
and the several Underwriters listed
in Schedule I hereto.
By: X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
Signature page to Underwriting Agreement
SCHEDULE I
Number
of
Firm Securities
Underwriter To Be Purchased
----------- ---------------
X.X. Xxxxxx Securities Inc..................................... 2,500,000
SunTrust Capital Markets, Inc. 1,300,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated........................... 350,000
Sandler X'Xxxxx & Partners, L.P................................ 350,000
Xxxxxxx & Partners Securities, LLC ............................ 250,000
Xxxxxx, Xxxxx Xxxxx, Incorporated.............................. 100,000
Sterne, Agee & Xxxxx, Inc. .................................... 100,000
Xxxxxxx, Xxxxxxx Securities LLC................................ 50,000
---------
Total................................................. 5,000,000
=========
SCHEDULE II
Subsidiary Ownership
---------- ---------
1. American Underwriting Management, Inc. 50% owned by the Company; 50% owned by Xxxxxxxx
Investments, Inc.
2. Peachtree Special Risk Brokers, LLC 75% owned by the Company; 25% owned by Xxxxxxx
Xxxxxxxxx
3. Peachtree Special Risk Brokers of New York, LLC 100% owned by Peachtree Special Risk Brokers, LLC -
see item 2 above
4. Xxxxxxx-Flagship Services, Inc. 50% owned by The Flagship Group, Limited, a
subsidiary of the Company; 50% owned by X.X.
Xxxxxxx & Associates, Inc.
