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EXHIBIT 1.1
GDC DRAFT Dated August 20, 1997
2,944,000 Shares
T&W FINANCIAL CORPORATION
Common Stock
UNDERWRITING AGREEMENT
October ___, 1997
Xxxxxxxxxxx & Co., Inc.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several Underwriters named on Schedule II attached hereto.
Ladies and Gentlemen:
T&W Financial Corporation, a Washington corporation (the "Company"), and
the persons named on Schedule I to this Agreement (individually, a "Selling
Shareholder," and collectively, the "Selling Shareholders") propose to sell to
you and the other underwriters named on Schedule II to this Agreement (the
"Underwriters"), for whom you are acting as Representative, an aggregate of
2,560,000 shares (the "Firm Shares") of the Company's Common Stock, no par value
per share (the "Common Stock"). In addition, the Company proposes to grant to
the Underwriters an option to purchase up to an additional 384,000 shares (the
"Option Shares") of Common Stock from it for the purpose of covering
over-allotments in connection with the sale of the Firm Shares. The Firm Shares
and the Option Shares are together called the "Shares."
1. Sale and Purchase of the Shares. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company and each Selling Shareholder, severally and
not jointly, agrees to sell to the Underwriters the number of Firm Shares set
forth opposite the name of the Company and such Selling Shareholder on Schedule
I to this Agreement, and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company and the Selling Shareholders, at $_____ per
share (the "Initial Price"), the number of Firm Shares set forth opposite the
name of such Underwriter on Schedule II to this Agreement.
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(b) The Company grants to the several Underwriters an option
to purchase, severally and not jointly, all or any part of the Option Shares at
the Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Representative to
eliminate fractions) of the total number of Option Shares to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Shares. Such option
may be exercised only to cover over-allotments in the sales of the Firm Shares
by the Underwriters and may be exercised, in whole or in part, at any time
within 30 days after the date of this Agreement upon written or telegraphic
notice, or verbal or telephonic notice confirmed by written or telegraphic
notice, by the Representative to the Company no later than 12:00 noon, New York
City time, at least two business days before the Option Shares Closing Date (as
defined below), setting forth the number of Option Shares to be purchased and
the time and date (if other than the Firm Shares Closing Date (as defined
below)) of such purchase.
2. Delivery and Payment. Delivery by the Company and the Selling
Shareholders of the Firm Shares to the Representative for the respective
accounts of the Underwriters, and payment of the purchase price by wire
transfer, certified or official bank check or checks payable in same day funds
to the Company and the Selling Shareholders, shall take place at the offices of
Xxxxxxxxxxx & Co., Inc., at Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, at 10:00 a.m., New York City time (or such other place as may be
agreed upon by the Company and the Representative), on the third (or, if the
Firm Shares are priced, as contemplated by Rule 15c6-1(c) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after 4:30 p.m.,
Washington, D.C. time, the fourth) business day following the date of this
Agreement, or at such time on such other date, not later than 10 business days
after the date of this Agreement, as shall be agreed upon by the Company and the
Representative (such time and date of delivery and payment are called the "Firm
Shares Closing Date").
In the event the option with respect to the Option Shares is exercised,
delivery by the Company of the Option Shares to the Representative for the
respective accounts of the Underwriters, and payment of the purchase price by
wire transfer, certified or official bank check or checks payable in same day
funds to the Company shall take place at the offices of Xxxxxxxxxxx & Co., Inc.
specified above at the time and on the date (which may be the same date as, but
in no event shall be earlier than, the Firm Shares Closing Date) specified in
the notice referred to in Section 1(b) (such time and date of delivery and
payment are called the "Option Shares Closing Date"). The Firm Shares Closing
Date and the Option Shares Closing Date are called, individually, a "Closing
Date," and together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names and
shall be in such denominations as the Representative shall request at least two
full business days before the Firm Shares Closing Date or, in the case of Option
Shares, on the day of notice of exercise of the option as described in Section
l(b) and shall be made available to the Representative for checking and
packaging, at such place as is designated by the Representative, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
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3. Registration Statement and Prospectus; Public Offering. The
Company has prepared in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the published rules and
regulations thereunder (the "Rules") adopted by the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No.
333-_____), including a preliminary prospectus relating to the Shares, and has
filed with the Commission the Registration Statement (as hereinafter defined)
and such amendments thereof as may have been required to the date of this
Agreement. Copies of such Registration Statement (including all amendments
thereof) and of the related preliminary prospectus have heretofore been
delivered by the Company to you. The term "preliminary prospectus" means any
preliminary prospectus (as described in Rule 430 of the Rules) included at any
time as a part of the Registration Statement. The Registration Statement, as
amended at the time and on the date it becomes effective (the "Effective Date"),
including all exhibits and information, if any, deemed to be part of the
Registration Statement pursuant to Rule 424(b) and Rule 430A of the Rules and
any Registration Statement filed pursuant to Rule 462(b) of the Rules, is called
the "Registration Statement." The term "Prospectus" means the prospectus in the
form first used to confirm sales of the Shares (whether such prospectus was
included in the Registration Statement at the time of effectiveness or was
subsequently filed with the Commission pursuant to Rule 424(b) of the Rules).
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date and the date of this Agreement as the Representative
deems advisable. The Company hereby confirms that the Underwriters and dealers
have been authorized to distribute or cause to be distributed each preliminary
prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. Representations and Warranties of the Company. The Company and
T&W Financial Services Company L.L.C. ("LLC"), jointly and severally, represent
and warrant to each Underwriter as follows:
(a) On the Effective Date the Registration Statement
complied, and on the date of the Prospectus, on the date any post-effective
amendment to the Registration Statement shall become effective, on the date any
supplement or amendment to the Prospectus is filed with the Commission and on
each Closing Date, the Registration Statement and the Prospectus (and any
amendment thereof or supplement thereto) will comply, in all material respects,
with the applicable provisions of the Securities Act and the Rules and the
Exchange Act, and the rules and regulations of the Commission thereunder; the
Registration Statement did not, as of the Effective Date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or
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necessary in order to make the statements therein not misleading; and on the
other dates referred to above neither the Registration Statement nor the
Prospectus, nor any amendment thereof or supplement thereto, will contain any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading. When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the Registration Statement or any
amendment thereto or pursuant to Rule 424(a) of the Rules) and when any
amendment thereof or supplement thereto was first filed with the Commission,
such preliminary prospectus as amended or supplemented complied in all material
respects with the applicable provisions of the Securities Act and the Rules and
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading. Notwithstanding the foregoing, neither the
Company nor the LLC makes any representation or warranty as to the last
paragraph on the cover page of the Prospectus, the legend with respect to
stabilization on the inside front cover page of the Prospectus and the
statements contained under the caption "Underwriting" in the Prospectus. The
Company and the LLC acknowledge that the statements referred to in the previous
sentence constitute the only information furnished in writing by the
Representative on behalf of the several Underwriters specifically for inclusion
in the Registration Statement, any preliminary prospectus or the Prospectus.
(b) All contracts and other documents required to be filed
as exhibits to the Registration Statement have been filed with the Commission as
exhibits to the Registration Statement.
(c) The combined financial statements of the Company and its
affiliates (including all notes thereto) included in the Registration Statement
and Prospectus present fairly the financial position, the results of operations
and cash flows and the shareholder' equity and the other information purported
to be shown therein of the Company at the respective dates and for the
respective periods to which they apply. Such financial statements have been
prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved and all adjustments
necessary for a fair presentation of the results for such periods have been
made.
(d) BDO Xxxxxxx, LLP, whose reports are filed with the
Commission as a part of the Registration Statement, are and, during the periods
covered by their reports, were independent public accountants as required by the
Securities Act and the Rules.
(e) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Washington. The Company
has no subsidiary or subsidiaries and does not control, directly or indirectly,
any corporation, limited liability company, partnership, joint venture,
association or other business organization other than those listed on Exhibit A
hereto (individually, a "Subsidiary," and collectively, the "Subsidiaries").
Each Subsidiary has been duly incorporated or formed and is validly existing as
a corporation or limited liability company, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or formation. The Company
and each Subsidiary is duly qualified and in good standing as a foreign
corporation or limited liability company, as the case may be, in each
jurisdiction in which the character or location of its assets or properties
(owned, leased or licensed) or the nature of its business makes such
qualification necessary, except for such jurisdictions where the failure to so
qualify would not have a material adverse effect on the
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assets or properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole.
Except as disclosed in the Registration Statement and the Prospectus, neither
the Company nor any Subsidiary owns, leases or licenses any asset or property or
conducts any business outside the United States of America and Canada. The
Company and each Subsidiary has all requisite corporate power and authority, and
all necessary authorizations, approvals, consents, orders, licenses,
certificates and permits of and from all governmental or regulatory bodies or
any other person or entity, to own, lease and license its assets and properties
and conduct its businesses as now being conducted and as described in the
Registration Statement and the Prospectus, except for such authorizations,
approvals, consents, orders, material licenses, certificates and permits the
failure to so obtain would not have a material adverse effect upon the assets or
properties, business, results of operations, prospects or condition (financial
or otherwise) of the Company and the Subsidiaries, taken as a whole; no such
authorization, approval, consent, order, license, certificate or permit contains
a materially burdensome restriction other than as disclosed in the Registration
Statement and the Prospectus; and each of the Company and the LLC has all such
corporate power and authority, and such authorizations, approvals, consents,
orders, licenses, certificates and permits to enter into, deliver and perform
this Agreement and, in the case of the Company, to issue and sell the Shares
(except as may be required under the Securities Act and state and foreign Blue
Sky laws).
(f) The Company and each Subsidiary owns or possesses
adequate and enforceable rights to use all trademarks, trademark applications,
trade names, service marks, copyrights, copyright applications, licenses,
know-how and other similar rights and proprietary knowledge (collectively,
"Intangibles") necessary for the conduct of its business as described in the
Registration Statement and the Prospectus. Neither the Company nor any
Subsidiary has received any notice or is aware of any infringement of or
conflict with asserted rights of others with respect to any Intangibles which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect upon the assets or properties,
business, results of operations, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole.
(g) The Company and each Subsidiary has good title to each
of the items of personal property which are reflected in the financial
statements referred to in Section 4(c) or are referred to in the Registration
Statement and the Prospectus as being owned by it and valid and enforceable
leasehold interests in each of the items of real and personal property which are
referred to in the Registration Statement and the Prospectus as being leased by
it, in each case free and clear of all liens, encumbrances, claims, security
interests and defects, other than those described in the Registration Statement
and the Prospectus and those which do not and will not have a material adverse
effect upon the assets or properties, business, results of operations, prospects
or condition (financial or otherwise) of the Company and the Subsidiaries, taken
as a whole.
(h) Except as disclosed in the Registration Statement and
the Prospectus, there is no litigation or governmental or other proceeding or
investigation before any court or before or by any public body or board pending
or, to the Company's or the LLC's
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best knowledge, threatened (and neither the Company nor the LLC knows of no
basis therefor) against, or involving the assets, properties or business of, the
Company or any Subsidiary which would materially adversely affect the value or
the operation of any such assets or properties or the business, results of
operations, prospects or condition (financial or otherwise) of the Company and
the Subsidiaries, taken as a whole.
(i) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
described therein, (i) there has not been any material adverse change in the
assets or properties, business, results of operations, prospects or condition
(financial or otherwise), of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business;
(ii) neither the Company nor any Subsidiary has sustained any material loss or
interference with its assets, businesses or properties (whether owned or leased)
from fire, explosion, earthquake, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree; and (iii) and since the date of the
latest balance sheet included in the Registration Statement and the Prospectus,
except as reflected therein, neither the Company nor any Subsidiary has (A)
issued any securities or incurred any liability or obligation, direct or
contingent, for borrowed money, except such liabilities or obligations incurred
in the ordinary course of business, (B) entered into any material transaction
not in the ordinary course of business or (C) declared or paid any dividend or
made any distribution on any shares of its stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any shares
of its stock.
(j) There is no document or contract of a character required
to be described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. Each agreement listed in the Exhibits to the Registration Statement is
in full force and effect and is valid and enforceable by and against the Company
or the applicable Subsidiary in accordance with its terms, assuming the due
authorization, execution and delivery thereof by each of the other parties
thereto. Neither the Company, any Subsidiary nor, to the best of the Company's
or the LLC's knowledge, any other party is in default in the observance or
performance of any term or obligation to be performed by it under any such
agreement, and no event has occurred which with notice or lapse of time or both
would constitute such a default, in any such case which default or event would
have a material adverse effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the Company and
the Subsidiaries, taken as a whole. No default exists, and no event has occurred
which with notice or lapse of time or both would constitute a default, in the
due performance and observance of any term, covenant or condition, by the
Company or any Subsidiary of any other agreement or instrument to which the
Company or such Subsidiary is a party or by which it or its properties or
business may be bound or affected which default or event would have a material
adverse effect on the assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole.
(k) Neither the Company nor any Subsidiary is in violation
of any term or provision of its charter or bylaws or of any franchise, license,
permit, judgment,
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decree, order, statute, rule or regulation, where the consequences of such
violation would have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole.
(l) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate or accelerate the
due date of any payment due under, or conflict with or result in the breach of
any term or provision of, or constitute a default (or an event which with notice
or lapse of time or both would constitute a default) under, or require any
consent or waiver under, or result in the execution or imposition of any lien,
charge or encumbrance upon any properties or assets of the Company or any
Subsidiary pursuant to the terms of, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any Subsidiary is a party,
or by which it or any of its properties or businesses is bound, or any
franchise, license, permit, judgment, decree, order, statute, rule or regulation
applicable to the Company or any Subsidiary, or violate any provision of the
charter or bylaws of the Company or any Subsidiary, except for such consents or
waivers which have already been obtained and are in full force and effect.
(m) The Company has an authorized and outstanding capital
stock as set forth under the caption "Capitalization" in the Prospectus. All of
the outstanding shares of Common Stock have been duly and validly issued and are
fully paid and nonassessable and none of them was issued in violation of any
preemptive or other similar right. The Shares, when issued and sold by the
Company pursuant to this Agreement will be duly and validly issued, fully paid
and nonassessable and none of them will be issued in violation of any preemptive
or other similar right. Except as disclosed in the Registration Statement and
the Prospectus, there is no outstanding option, warrant or other right calling
for the issuance of, and there is no commitment, plan or arrangement to issue,
any share of stock of the Company or any security convertible into, or
exercisable or exchangeable for, such stock. The Common Stock and the Shares
conform in all material respects to all statements in relation thereto contained
in the Registration Statement and the Prospectus.
(n) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration Statement
or otherwise registered by the Company under the Securities Act. Each director
and executive officer of the Company has delivered to the Representative an
enforceable written agreement that each such person will not sell, offer to
sell, contract to sell, pledge or otherwise dispose of or transfer, directly or
indirectly, any shares of Common Stock, or any securities convertible into or
exchangeable for, or any rights to purchase or acquire, shares of Common Stock,
for a period of 180 days commencing on the date of the Prospectus without the
prior written consent of Xxxxxxxxxxx & Co., Inc., other than the Firm Shares to
be sold by such person pursuant to this Agreement.
(o) All necessary action has been duly and validly taken by
the Company and the LLC to authorize the execution, delivery and performance of
this Agreement and, in the case of the Company, the issuance and sale of the
Shares by the Company. This
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Agreement has been duly and validly authorized, executed and delivered by the
Company and the LLC and constitutes the legal, valid and binding obligations of
the Company and the LLC enforceable against the Company and the LLC in
accordance with its terms, except (i) as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles and (ii) to the extent that rights to indemnity or
contribution under this Agreement may be limited by Federal and state securities
laws or the public policy underlying such laws.
(p) Neither the Company nor any Subsidiary is involved in
any labor dispute nor, to the knowledge of the Company or the LLC, is any such
dispute threatened, which dispute would have a material adverse effect on the
assets or properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole.
(q) No transaction has occurred between or among the Company
or any Subsidiary and any of the Company's officers or directors, or any
Affiliate (as defined in the Rules) of any such officer or director, that is
required to be described in and is not described in the Registration Statement
and the Prospectus.
(r) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of any of the Shares.
(s) The Company and each Subsidiary has filed all Tax
Returns which are required to be filed through the date hereof, or has received
extensions thereof, and has paid all Taxes, whether or not shown on such Tax
Returns, to the extent that the same are material and have become due. No
action, proceeding or investigation for the assessment or collection of Taxes by
any Federal, state, local or foreign authority is pending, or to the best of the
Company's or the LLC's knowledge, threatened against the Company or any
Subsidiary, except such as would have a material adverse effect on the assets or
properties, business, results of operations, prospects or condition (financial
or otherwise) of the Company and the Subsidiaries, taken as a whole. Each of T&W
Leasing, Inc., T&W Finance Corp. I, Finance Corp. II, and T&W Finance Corp. III
elected to be treated as an S corporation under Sections 1361 through 1363 of
the Internal Revenue Code of 1986, as amended (the "Code"), at the time of its
incorporation and has maintained its qualification as an S corporation at all
times since the time of such election. Each of T&W Financial Services Company
L.L.C., T&W Funding Company I, LLC, T&W Funding Company IV, LLC and T&W Funding
Company V, LLC qualified as a partnership for Federal and state tax purposes at
the time of its formation and has maintained its qualification as a partnership
Federal and state tax purposes at all times since the time if such formation.
The term "Tax Return" means any Federal, state, local or foreign return,
declaration, report, form, claim for refund or information return or statement,
or any schedule, attachment or amendment thereto, relating to Taxes. The term
Taxes means all Federal, state,
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local or foreign income, payroll, employee withholding, unemployment insurance,
social security, sales, use, service use, leasing use, excise, franchise, gross
receipts, value added, alternative or added-on minimum, estimated occupation,
real and personal property, stamp transfer, workers' compensation, severance,
windfall profits or other tax of the same or of a similar nature, including any
interest, penalty, or addition thereto, whether disputed or not.
(t) The Company has filed a registration statement pursuant
to Section 12(g) of the Exchange Act to register the Common Stock. The Shares
have been duly authorized for quotation on the Nasdaq Stock Market's National
Market System.
(u) Neither the Company nor any Subsidiary is, nor will they
become upon the issuance and sale of the Shares by the Company as herein
contemplated and the application of the net proceeds therefrom as described in
the Prospectus under the caption "Use of Proceeds," an "investment company or an
entity "controlled" by and an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(v) The Company and each Subsidiary maintains insurance of
the types and in the amounts generally deemed adequate for its business,
including, but not limited to, insurance covering real and personal property
owned or lease by the Company or such Subsidiary against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against,
all of which insurance is in full force and effect.
(w) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of its financial statements in conformity with generally accepted
accounting principals (including, without limitation, the recordation of
securitization as necessary to permit the accounting treatment of such
transactions in conformity with Statement of Financial Accounting Standard No.
125); (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
lease contracts is compared with the existing lease contracts in connection with
securitizations and appropriate action is taken with respect to any differences.
(x) The Company and each Subsidiary possess all permits,
licenses and other authorizations that are required under all environmental
laws, including, but not limited to, the Federal Water Pollution Control Act (33
U.S.C. Section 1251 et seq.), Resource Conservation & Recovery Act (42 U.S.C.
Section 6901 et seq.), Safe Drinking Water Act (21 U.S.C. Sections 201, 300f),
Toxic Substances Control Act (15 U.S.C. Section 349, 42 U.S.C. Section 7401 et
seq.), Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. Section 9601 et seq.), and any other laws of any applicable jurisdiction,
relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals or industrial, toxic or hazardous substances
or wastes into the environment (including, without limitation, ambient air,
surface water, ground water or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants,
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chemicals or industrial, toxic or hazardous substances or wastes or under any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder (collectively, the
"Environmental Laws"), except to the extent that the failure to possess any such
permit, license or authorization would not have a material adverse effect on the
assets or properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole.
The Company and each Subsidiary is in compliance with all terms and conditions
of any such permits, except to the extent that the failure to comply with any
such permit, license or authorization would not have a material adverse effect
on the assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company and the Subsidiaries, taken as
a whole.
(y) There are no past or present events, conditions,
circumstances, activities, facts, practices, incidents, actions, or plans
relating to the business as presently being conducted by the Company or any
Subsidiary that interfere with or prevent material compliance or continued
material compliance with Environmental Laws, or which would be reasonably
likely to give rise to any legal liability (whether statutory or common law)
or otherwise would be reasonably likely to form the basis of any claim,
action, demand, suit, proceeding, hearing, notice of violation, study,
investigation, remediation or cleanup based on or related to the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling, or the emission, discharge, release into the workplace,
the community or the environment of any pollutant, contaminant, chemical or
industrial, toxic or hazardous substance or waste, except for any liabilities
or any claims, demands or other actions specified above that will not
individually or in the aggregate have a material adverse effect on the assets
or properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company and the Subsidiaries, taken as a whole.
(z) The transactions contemplated by that certain
Restructuring Agreement, dated as of October __, 1997 (the "Restructuring
Agreement"), by and among the Company and the other parties thereto, other than
contribution by the Company to the LLC of the net proceeds from the sale of the
Shares to be sold by the Company pursuant to this Agreement and the issuance by
the LLC to each of the Company and T&W Funding Company VI, LLC of their
membership interests, have been consummated in accordance with the terms of such
Restructuring Agreement.
(aa) Neither the Company nor any Subsidiary does business
with the government of Cuba or with any person or entity located in Cuba.
5. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, hereby represents and warrants
to each Underwriter as follows:
(a) The Registration Statement did not, as of the Effective
Date, contain any untrue statement of a material fact or omit to state any
material fact with respect to the Selling Shareholder required to be stated
therein or necessary in order to make the statements therein with respect to the
Selling Shareholder not misleading; and on the date of the
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Prospectus, on the date any post-effective amendment to the Registration
Statement shall become effective, on the date any supplement or amendment to the
Prospectus is filed with the Commission and on each Closing Date, the
Registration Statement and the Prospectus (and any amendment thereof or
supplement thereto) will not contain any untrue statement of a material fact or
omit to state any material fact with respect to the Selling Shareholder required
to be stated therein or necessary in order to make the statements therein with
respect to the Selling Shareholder not misleading. When any related preliminary
prospectus was first filed with the Commission (whether filed as part of the
Registration Statement or any amendment thereto or pursuant to Rule 424(a) of
the Rules) and when any amendment thereof or supplement thereto was first filed
with the Commission, such preliminary prospectus did not contain any untrue
statement of a material fact or omit to state any material fact with respect to
the Selling Shareholder required to be stated therein or necessary in order to
make the statements therein with respect to the Selling Shareholder not
misleading.
(b) Neither the execution, delivery and performance of this
Agreement by the Selling Shareholder nor the consummation of any of the
transactions contemplated hereby (including, without limitation, sale by the
Selling Shareholder of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or result in
the breach of any term or provision of, or constitute a default (or an event
which with notice or lapse of time or both would constitute a default) under, or
require any consent or waiver under, or result in the execution or imposition of
any lien, charge or encumbrance upon any properties or assets of the Selling
Shareholder pursuant to the terms of, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Selling Shareholder is a party, or by
which it or any of its properties or businesses is bound, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation applicable
to the Selling Shareholder, except for such consents or waivers which have
already been obtained and are in full force and effect.
(c) The Selling Shareholder has delivered to the
Representative an enforceable written agreement that the Selling Shareholder
will not sell, offer to sell, contract to sell, pledge or otherwise dispose of
or transfer, directly or indirectly, any shares of Common Stock, or any
securities convertible into or exchangeable for, or any rights to purchase or
acquire, shares of Common Stock, for a period of 180 days commencing on the date
of the Prospectus without the prior written consent of Xxxxxxxxxxx & Co., Inc.,
other than the Firm Shares to be sold by such Selling Shareholder pursuant to
this Agreement.
(d) The Selling Shareholder has delivered to the
Representative a Custody Agreement and Power of Attorney with respect to the
Shares to be sold by the Selling Shareholder to the Underwriters pursuant to
this Agreement, and has deposited with the Custodian under the Custody Agreement
the stock certificates representing such Shares, duly endorsed for transfer or
accompanied by a duly executed stock power. The Selling Shareholder understand
and acknowledges that the arrangements for such custody are irrevocable and that
the obligations of the Selling Shareholder thereunder shall not be terminated,
except as provided in this Agreement or the Custody Agreement, by any act of the
Selling Shareholder, by operation of law or by the occurrence of any other
event.
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(e) The Selling Shareholder is the record and beneficial
owner of the Shares to be sold by the Selling Shareholder hereunder. Upon the
sale and delivery of, and payment for, such Shares, as provided herein, the
Selling Shareholder will convey good and marketable title to such Shares, free
and clear of any security interests, liens, encumbrances, equities, claims,
options, rights of third parties or other interests.
(f) This Agreement, the Custody Agreement and the Power of
Attorney have been duly and validly authorized, executed and delivered by the
Selling Shareholder and constitute the legal, valid and binding obligations of
the Selling Shareholder enforceable against the Selling Shareholder in
accordance with their terms, except (i) as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles and (ii) to the extent that rights to indemnity or
contribution under this Agreement may be limited by Federal and state securities
laws or the public policy underlying such laws.
(g) The Selling Shareholder has not taken, nor will it take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of any of the Shares.
(h) No transfer taxes are required to be paid in connection
with the sale and delivery of the Firm Shares to be sold by the Selling
Shareholders to the Underwriters hereunder.
6. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 7(a)(i) of this Agreement.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or shall be in effect
and no order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information on the
part of the Commission (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the satisfaction of
the Representative.
(c) The representations and warranties of the Company, the
LLC and the Selling Shareholders contained in this Agreement and in the
certificates delivered pursuant
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to Sections 6(d)(i), (d)(ii) and (d)(iii) of this Agreement shall be true and
correct when made and on and as of each Closing Date as if made on such date and
the Company, the LLC and the Selling Shareholders shall have performed all
covenants and agreements and satisfied all the conditions contained in this
Agreement required to be performed or satisfied by them at or before such
Closing Date.
(d) (i) The Representative shall have received on each
Closing Date a certificate, addressed to the Representative and dated such
Closing Date, of the chief executive or chief operating officer and the chief
financial officer or chief accounting officer of the Company to the effect that
the signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the representations and
warranties of the Company in this Agreement are true and correct in all material
respects on and as of such Closing Date with the same effect as if made on such
Closing Date and the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be performed or
satisfied by it at or prior to such Closing Date.
(ii) The Representative shall have received on each Closing
Date a certificate, addressed to the Representative and dated such Closing Date,
of each the managing member of the LLC to the effect that the signer of such
certificate has carefully examined the Registration Statement, the Prospectus
and this Agreement and that the representations and warranties of the LLC in
this Agreement are true and correct in all material respects on and as of such
Closing Date with the same effect as if made on such Closing Date and the LLC
has performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by it at or
prior to such Closing Date.
(iii) The Representative shall have received on each Closing
Date a certificate, addressed to the Representative and dated such Closing Date,
of each Selling Shareholder to the effect that the signer of such certificate
has carefully examined the Registration Statement, the Prospectus and this
Agreement and that the representations and warranties of such Selling
Shareholder in this Agreement are true and correct in all material respects on
and as of such Closing Date with the same effect as if made on such Closing Date
and such Selling Shareholder has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be performed or
satisfied by such Selling Shareholder at or prior to such Closing Date.
(e) The Representative shall have received at the time this
Agreement is executed and on each Closing Date a signed letter from BDO Xxxxxxx,
LLP addressed to the Representative and dated, respectively, the date of this
Agreement and each such Closing Date, in form and substance reasonably
satisfactory to the Representative and its counsel, confirming that they are
independent certified public accountants within the meaning of the Securities
Act and the Rules, that the response to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(i) in their opinion the combined financial
statements included in the Registration Statement and the Prospectus and
reported on by them comply as to form in
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all material respects with the applicable accounting requirements of the
Securities Act and the Rules;
(ii) on the basis of a reading of the amounts
included in the Registration Statement and the Prospectus under the headings
"Prospectus Summary -- Summary Combined Financial Data" and "Selected Combined
Financial and Operating Data," carrying out certain procedures (but not an
examination in accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with respect to the
comments set forth in such letter, a reading of the minutes of the meetings of
the Shareholders and directors of the Company, and inquiries of certain
officials of the Company who have responsibility for financial and accounting
matters of the Company as to transactions and events subsequent to the date of
the latest audited combined financial statements
(A) the amounts in "Prospectus Summary --
Summary Combined Financial Data" and "Selected Combined Financial and Operating
Data" included in the Registration Statement and the Prospectus agree with the
corresponding amounts in the financial statements from which such amounts were
derived; and
(B) except as disclosed in the Registration
Statement and the Prospectus, nothing came to their attention which caused them
to believe that, with respect to the Company, there were, at a specified date
not more than five business days prior to the date of the letter: (i) any
changes in the capital stock, any increases in notes payable - recourse, notes
payable - nonrecourse and total liabilities, or any decreases in net investment
in leases, total assets and total shareholders' equity of the Company, as
compared with the amounts shown on the Company's combined balance sheet for the
six month period ended June 30, 1997 included in the Registration Statement; and
(ii) for the period from July 1, 1997 to such specified date, any decreases in
the lease contract revenue, gain on sale of leases and net income, as compared
with the corresponding period in the preceding year.
(iii) they have performed certain other procedures as
a result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company) set forth in the Registration Statement and the Prospectus and
reasonably specified by the Representative agrees with the accounting records of
the Company.
References to the Registration Statement and the Prospectus in this
Section 6(e) are to such documents as amended and supplemented at the date of
the letter.
(f) The Representative shall have received on each Closing
Date from Xxxxxx & Xxxxx LLP, counsel for the Company and the Selling
Shareholders, an opinion, addressed to the Representative and dated such Closing
Date, and stating in effect that:
(i) The Company and each Subsidiary has been duly
incorporated or formed, as the case may be, and is validly existing as a
corporation or limited
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liability, as the case may be, under the laws of its jurisdiction of
incorporation or formation. The Company and each Subsidiary is duly qualified
and in good standing as a foreign corporation or limited liability company, as
the case may be, in each jurisdiction in which the character or location of its
assets or properties (owned, leased or licensed) or the nature of its businesses
makes such qualification necessary, except for such jurisdictions where the
failure to so qualify would not have a material adverse effect on the assets or
properties, business, results of operations, prospects or condition (financial
or otherwise) of the Company and its subsidiaries, taken as a whole.
(ii) The Company and each Subsidiary has all
requisite corporate power and authority to own, lease and license its assets and
properties and conduct its business as now being conducted and as described in
the Registration Statement and the Prospectus; and the Company has all requisite
corporate power and authority and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits to enter into, deliver and
perform this Agreement and to issue and sell the Shares, other than those
required under the Securities Act and state and foreign Blue Sky laws.
(iii) The Company has authorized and issued capital
stock as set forth in the Registration Statement and the Prospectus; the
certificates evidencing the Shares are in due and proper legal form and have
been duly authorized for issuance by the Company; all of the outstanding shares
of Common Stock of the Company have been duly and validly authorized and have
been duly and validly issued and are fully paid and nonassessable and none of
them was issued in violation of any preemptive or other similar right. The
Shares, when issued and sold pursuant to this Agreement, will be duly and
validly issued, outstanding, fully paid and nonassessable and none of them will
have been issued in violation of any preemptive or other similar right. To the
best of such counsel's knowledge, except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding option, warrant or other
right calling for the issuance of, and no commitment, plan or arrangement to
issue, any share of stock of the Company or any security convertible into,
exercisable for, or exchangeable for stock of the Company. The Common Stock and
the Shares conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(iv) To the best of such counsel's knowledge, the
beneficial ownership of the Company and its Affiliates, giving effect to the
transactions described under the caption "The Restructuring" in the Prospectus,
is as described in the Prospectus and the Company has no subsidiaries other than
the Subsidiaries set forth in Exhibit A hereto.
(v) The agreement of each director and executive
officer of the Company that each such person will not sell, offer to sell,
contract to sell, pledge or otherwise dispose of or transfer, directly or
indirectly, any shares of Common Stock, or any securities convertible into or
exchangeable for, or any rights to purchase or acquire, shares of Common Stock
for a period of 180 days commencing on the date of the Prospectus without the
prior written consent of Xxxxxxxxxxx & Co., Inc. has been duly and validly
delivered by each such person and constitutes the legal, valid and binding
obligation of each such person enforceable against each such person in
accordance with its terms, except as the enforceability thereof may
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be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles.
(vi) All necessary action has been duly and validly
taken by the Company and the LLC to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and the LLC and this Agreement constitutes the legal, valid and binding
obligation of each of the Company and the LLC enforceable against the Company
and the LLC in accordance with its terms, except (A) as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles and (B) to the extent that rights to indemnity
or contribution under this Agreement may be limited by Federal or state
securities laws or the public policy underlying such laws.
(vii) Neither the execution, delivery and performance
of this Agreement by the Company or the LLC nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the issuance
and sale by the Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or result in
the breach of any term or provision of, or constitute a default (or any event
which with notice or lapse of time, or both, would constitute a default) under,
or require consent or waiver under, or result in the execution or imposition of
any lien, charge or encumbrance upon any properties or assets of the Company or
any Subsidiary pursuant to the terms of any indenture, mortgage, deed trust,
note or other agreement or instrument of which such counsel is aware and to
which the Company or any Subsidiary is a party or by which it or any of its
properties or businesses is bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation of which such counsel is aware or
violate any provision of the charter or bylaws of the Company or any Subsidiary,
where the consequences of such termination, acceleration, conflict, breach or
default would have a material and adverse effect on the assets, properties,
business, results of operations, prospects or condition (financial or otherwise)
of the Company and its Subsidiaries, taken as a whole.
(viii) To the best of such counsel's knowledge, no
default exists, and no event has occurred which with notice or lapse of time, or
both, would constitute a default, in the due performance and observance of any
term, covenant or condition by the Company or any Subsidiary of any indenture,
mortgage, deed of trust, note or any other agreement or instrument to which the
Company or any Subsidiary is a party or by which it or any of its assets or
properties or businesses may be bound or affected, where the consequences of
such default would have a material and adverse effect on the assets, properties,
business, results of operations, prospects or condition (financial or otherwise)
of the Company and its Subsidiaries, taken as a whole.
(ix) To the best of such counsel's knowledge, neither
the Company nor any Subsidiary is in violation of any term or provision of its
charter or bylaws or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation, where the consequences of such violation would have
a material and adverse effect on the assets or
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properties, businesses, results of operations, prospects or condition (financial
or otherwise) of the Company and its Subsidiaries, taken as a whole.
(x) No consent, approval, authorization or order of
any court or governmental agency or body is required for the performance of this
Agreement by the Company or the consummation of the transactions contemplated
hereby or thereby, except such as have been obtained under the Securities Act
and such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the several
Underwriters.
(xi) To the best of such counsel's knowledge, except
as disclosed in the Registration Statement and the Prospectus, there is no
litigation or governmental or other proceeding or investigation, before any
court or before or by any public body or board pending or threatened against, or
involving the assets, properties or businesses of, the Company or any Subsidiary
which would have a material adverse effect upon the assets or properties,
business, results of operations, prospects or condition (financial or otherwise)
of the Company and its Subsidiaries, taken as a whole.
(xii) The statements in the Prospectus under the
captions "Management's Discussion and Analysis of Financial Condition and
Results of Operations -- Liquidity and Capital Resources," "Management --
Benefit Plans," "-- Exeuctive Compensation," "Certain Transactions," "Principal
and Selling Shareholders," "Description of Capital Stock" and "Shares Eligible
for Future Sale," insofar as such statements constitute a summary of documents
referred to therein or matters of law, are fair summaries in all material
respects and fairly present the information called for with respect to such
documents and matters. All contracts and other documents required to be filed as
exhibits to, or described in, the Registration Statement have been so filed with
the Commission or are fairly described in the Registration Statement, as the
case may be.
(xiii) The Registration Statement, all preliminary
prospectuses and the Prospectus and each amendment or supplement thereto (except
for the financial statements and other financial and statistical data included
therein, as to which such counsel expresses no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the Rules.
(xiv) To the best of such counsel's knowledge, the
Registration Statement has become effective under the Securities Act, and no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
threatened, pending or contemplated.
(xv) To the best of such counsel's knowledge, the
registration statement filed by the Company pursuant to Section 12(g) of the
Exchange Act has become effective under the Exchange Act and no stop order
suspending the effectiveness of such registration statement has been issued and
no proceedings for that purpose have been instituted or are threatened, pending
or contemplated.
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(xvi) To the best of such counsel's knowledge, the
Shares have been duly authorized for quotation on the Nasdaq Stock Market's
National Market System.
(xvii) Neither the Company nor any Subsidiary is, nor
will the Company or any Subsidiary become upon the issuance and sale of the
Shares as herein contemplated and the application of the net proceeds therefrom
as described in the Prospectus under the caption "Use of Proceeds," and
"investment company or an entity "controlled" by and an "investment company" as
such terms are defined in the 1940 Act.
(xviii) Each Selling Shareholder has all requisite power
and authority and all necessary authorizations, approvals, consents, orders,
licenses, certificates and permits to enter into, deliver and perform this
Agreement, the Custody Agreement and Power of Attorney and to issue and sell the
Firm Shares, other than those required under the Securities Act and state and
foreign Blue Sky laws. To the best of such counsel's knowledge, upon the sale
and delivery of, and payment for, such Firm Shares, as provided herein, each
Selling Shareholder will convey good and marketable title to such Firm Shares,
free and clear of any security interests, liens, encumbrances, equities, claims,
options, rights of third parties or other interests.
(xix) The agreement of each Selling Shareholder that
such person will not sell, offer to sell, contract to sell, pledge or otherwise
dispose of or transfer, directly or indirectly, any shares of Common Stock, or
any securities convertible into or exchangeable for, or any rights to purchase
or acquire, shares of Common Stock, for a period of 180 days commencing on the
date of the Prospectus without the prior written consent of Xxxxxxxxxxx & Co.,
Inc. have been duly and validly executed and delivered by such each such person
and constitute the legal, valid and binding obligation of each such person
enforceable against each such person in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(xx) This Agreement, the Custody Agreement and the
Power of Attorney have been duly and validly authorized, executed and delivered
by each Selling Shareholder and constitute the legal, valid and binding
obligations of each Selling Shareholder enforceable against such person in
accordance with their respective terms, except (A) as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles and (B) to the extent that rights to indemnity
or contribution under this Agreement may be limited by Federal or state
securities laws or the public policy underlying such laws.
To the extent deemed advisable by such counsel, it may rely as to
matters of fact on certificates of responsible officers of the Company or of
Selling Shareholders and public officials and on the opinions of other counsel
satisfactory to the Representative as to matters which are governed by laws
other than the laws of the States of Washington and the
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Federal laws of the United States; provided that such counsel shall state that
in its opinion the Underwriters and such counsel are justified in relying on
such other opinions. Copies of such certificates and other opinions shall be
furnished to the Representative and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has participated
in conferences with officers and other representatives of the Company,
representatives of the Representative and representatives of the independent
certified public accountants of the Company, at which conferences the contents
of the Registration Statement and the Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus (except as specified
in the foregoing opinion), on the basis of the foregoing, no facts have come to
the attention of such counsel which lead such counsel to believe that the
Registration Statement at the time it became effective (except with respect to
the financial statements and notes thereto and other financial data, as to which
such counsel need express no belief) 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 (except with respect to the financial
statements and notes thereto and other financial data, as to which such counsel
need make no statement) on the date thereof and on the Closing Date contained
any 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, not misleading.
(g) All proceedings taken in connection with the sale of the
Firm Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representative and its counsel and the
Underwriters shall have received from Xxxxxx, Xxxx & Xxxxxxxx LLP a favorable
opinion, addressed to the Representative and dated such Closing Date, with
respect to the Shares, the Registration Statement and the Prospectus, and such
other related matters, as the Representative may reasonably request, and the
Company and the Selling Shareholders shall have furnished to Xxxxxx, Xxxx &
Xxxxxxxx LLP such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(h) The Representative shall have received no later than the
time this Agreement is executed, the enforceable written agreement of each
director and executive officer of the Company and each Selling Shareholder, in
form and substance reasonably satisfactory to the Representative and its
counsel, that each such person will not sell, offer to sell, contract to sell,
pledge or otherwise dispose of or transfer, directly or indirectly, any shares
of Common Stock, or any securities convertible into or exchangeable for, or any
rights to purchase or acquire, shares of Common Stock for a period of 180 days
commencing on the date of the Prospectus without the prior written consent of
Xxxxxxxxxxx & Co., Inc.
(i) The Representative shall have received no later than the
time this Agreement is executed, duplicate originals of the Custody Agreement
and Power of Attorney
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with respect to the Shares to be sold by the Selling Shareholders to the
Underwriters pursuant to this Agreement, duly executed on behalf of each Selling
Shareholder (and the Custodian in the case of the Custody Agreement), and each
Selling Shareholder shall have deposited with the Custodian under the Custody
Agreement the stock certificates representing such Shares, duly endorsed for
transfer or accompanied by a duly executed stock power.
(j) The Company and the Selling Shareholders shall have
furnished or caused to be furnished to the Representative such further
certificates and documents as the Representative shall have reasonably
requested.
7. Covenants of the Company.
(a) The Company covenants and agrees as follows:
(i) The Company shall prepare the Prospectus in a
form approved by the Representative and file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than the Commission's close of
business on the second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act, and shall promptly advise the
Representative (A) when any amendment to the Registration Statement shall have
become effective, (B) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information, (C)
of the prevention or suspension of the use of any preliminary prospectus or the
Prospectus or of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company shall not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Company has furnished the
Representative a copy for its review prior to filing and shall not file any such
proposed amendment or supplement to which the Representative reasonably objects.
The Company shall use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to
the Shares is required to be delivered under the Securities Act and the Rules,
any event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the Securities
Act or the Rules, the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (i) of this Section
7(a), an amendment or supplement which shall correct such statement or omission
or an amendment which shall effect such compliance. The Company shall furnish
without charge to each Underwriter and to any dealer in securities as many
copies
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as the Representative may from time to time reasonably request of such amendment
or supplement.
(iii) The Company shall make generally available to
its security holders and to the Representative as soon as practicable, but not
later than 45 days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the Effective Date occurs (or 90
days if such 12-month period coincides with the Company's fiscal year), an
earning statement (which need not be audited) of the Company, covering such
12-month period, which shall satisfy the provisions of Section 11(a) of the
Securities Act or Rule 158 of the Rules.
(iv) The Company shall furnish to the Representative
and counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including all exhibits thereto and amendments thereof)
and to each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Securities Act or
the Rules, as many copies of any preliminary prospectus and the Prospectus and
any amendments thereof and supplements thereto as the Representative may
reasonably request.
(v) The Company shall cooperate with the
Representative and its counsel in endeavoring to qualify the Shares for offer
and sale under the laws of such jurisdictions as the Representative may
designate and shall maintain such qualifications in effect so long as required
for the distribution of the Shares; provided, however, that the Company shall
not be required in connection therewith, as a condition thereof, to qualify as a
foreign corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(vi) For a period of five years after the date of
this Agreement, the Company shall supply to the Representative, and to each
other Underwriter who may so request in writing, copies of such financial
statements and other periodic and special reports as the Company may from time
to time distribute generally to the holders of any class of its capital stock
and to furnish to the Representative a copy of each annual or other report it
shall be required to file with the Commission (including the Report on Form SR
required by Rule 463 of the Rules).
(vii) Without the prior written consent of Xxxxxxxxxxx
& Co., Inc., for a period of 180 days after the date of this Agreement, the
Company shall not issue, sell, offer to sell, contract to sell, pledge or
otherwise dispose of or transfer, directly or indirectly, any equity securities
of the Company, or any securities convertible into or exercisable or
exchangeable for, or any rights to purchase or acquire, equity securities of the
Company, other than the sale of the Shares by the Company pursuant to this
Agreement and the issuance by the Company of: (i) options to purchase shares of
Common Stock (and shares of Common Stock issuable upon the exercise of such
options) in connection with the Company's 1997 Stock Option plan; (ii) shares of
Common Stock in connection with the Company's 1997 Employee Stock Purchase Plan;
(iii) shares of Common Stock in connection with the Company's
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1997 Director Stock Grant Plan; and (iv) 13,700 shares of Common Stock to be
awarded to certain employees of the Company.
(viii) On or before completion of this offering, the
Company shall make all filings required under applicable securities laws and by
the Nasdaq Stock Market's National Market System (including any required
registration under the Exchange Act).
(ix) Prior to the Closing Date, the Company will not
issue, directly or indirectly, without the Representative's prior written
consent, which shall not be unreasonably withheld, any press release or other
communication or hold any press conference with respect to the Company or its
activities or this offering, other than trade releases issued in the ordinary
course of the Company's business with respect to the Company's operations or as
required by law.
(x) On the Closing Date, the Company will contribute to
the LLC the net proceeds from the sale of the Shares to be sold by the Company
pursuant to this Agreement and the LLC shall issue to each of the Company and
T&W Funding Company VI, LLC membership interests in accordance with the terms of
the Restructuring Agreement.
(b) The Company agrees to pay, or reimburse if paid by the
Representative, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company and the Selling Shareholders under this Agreement including those
relating to: (i) the preparation, printing, filing and distribution of the
Registration Statement including all exhibits thereto, each preliminary
prospectus, the Prospectus, all amendments and supplements to the Registration
Statement and the Prospectus, and the printing, filing and distribution of this
Agreement; (ii) the preparation and delivery of certificates for the Shares to
the Underwriters; (iii) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the various
jurisdictions referred to in Section 7(a)(v), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
registration and qualification and the preparation, printing, distribution and
shipment of preliminary and supplementary Blue Sky memoranda; (iv) the
furnishing (including costs of shipping and mailing) to the Representative and
to the Underwriters of copies of each preliminary prospectus, the Prospectus and
all amendments or supplements to the Prospectus, and of the several documents
required by this Section to be so furnished, as may be reasonably requested for
use in connection with the offering and sale of the Shares by the Underwriters
or by dealers to whom Shares may be sold; (v) the filing fees of the National
Association of Securities Dealers, Inc. in connection with its review of the
terms of the public offering; (vi) the furnishing (including costs of shipping
and mailing) to the Representative and to the Underwriters of copies of all
reports and information required by Section 7(a)(vi); (vii) inclusion of the
Shares for quotation on the Nasdaq Stock Market's National Market System; and
(viii) all transfer taxes, if any, with respect to the sale and delivery of the
Shares by the Company and the Selling Shareholders to the Underwriters. Subject
to the provisions of Section 10, the Underwriters agree to pay, whether or not
the transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the
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Company pursuant to the preceding sentence, including, without limitation, the
fees and disbursements of counsel for the Underwriters (other than as referred
to in subsection (iii) above).
8. Indemnification.
(a) The Company and the LLC (together, the "Company
Indemnitors"), jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages and liabilities, joint or several
(including any reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other Federal or state law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon: (i) any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; (ii) any breach of
the representations and warranties of the Company Indemnitors contained herein;
or (iii) any failure of the Company Indemnitors to satisfy the covenants or
perform the obligations of the Company Indemnitors hereunder; provided, however,
that such indemnity shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) on account of any losses, claims, damages
or liabilities arising from the sale of the Shares to any person by such
Underwriter if such untrue statement or omission or alleged untrue statement or
omission was made in such preliminary prospectus, the Registration Statement or
the Prospectus, or such amendment or supplement, in reliance upon and in
conformity with information furnished in writing to the Company by the
Representative for inclusion in the last paragraph on the cover page of the
Prospectus, the legend relating to stabilization on the inside front cover page
of the Prospectus or in the statements under the caption "Underwriting" in the
Prospectus; This indemnity agreement will be in addition to any liability which
the Company Indemnitors may otherwise have.
(b) Each Selling Shareholder, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all losses, claims,
damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon: (i) any untrue statement or alleged untrue
statement of a material fact with respect to such Selling Shareholder contained
in any preliminary prospectus, the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto, or arise out of or are based upon
any omission or alleged omission to
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state therein a material fact with respect to such Selling Shareholder required
to be stated therein or necessary to make the statements therein with respect to
such Selling Shareholder not misleading; (ii) any breach of the representations
and warranties of such Selling Shareholder contained herein; or (iii) any
failure of such Selling Shareholder to satisfy the covenants or perform the
obligations of such Selling Shareholder hereunder; provided, however, that such
indemnity shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person by such
Underwriter if such untrue statement or omission or alleged untrue statement or
omission was made in such preliminary prospectus, the Registration Statement or
the Prospectus, or such amendment or supplement, in reliance upon and in
conformity with information furnished in writing to the Company by the
Representative for inclusion in the last paragraph on the cover page of the
Prospectus, the legend relating to stabilization on the inside front cover page
of the Prospectus or in the statements under the caption "Underwriting" in the
Prospectus; and provided further, that the obligation of such Selling
Shareholder to indemnify any Underwriter (including any person controlling such
Underwriter) shall be limited to the net proceeds received by such Selling
Shareholder from such Underwriter.
(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, each director of the Company, each officer of the Company who
signs the Registration Statement and the Selling Shareholders against any and
all losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or regulation, at
common law or otherwise, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which was made in any preliminary
prospectus, the Registration Statement or the Prospectus, or any amendment
thereof or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by the Representative for
inclusion in the last paragraph on the cover page of the Prospectus, the legend
relating to stabilization on the inside front cover page of the Prospectus or in
the statements under the caption "Underwriting" in the Prospectus; provided,
however, that the obligation of each Underwriter to indemnify the Company
(including any controlling person, director or officer thereof) and any Selling
Shareholder shall be limited to the net proceeds received by the Company or such
Selling Shareholder from such Underwriter.
(d) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such action,
suit or proceeding, enclosing a copy of all papers served. No indemnification
provided for in Section 8(a), 8(b) or 8(c) shall be available to any party who
shall fail to give notice as provided in this Section 8(d) if the party to whom
notice was not given was unaware of
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the proceeding to which such notice would have related and was prejudiced by the
failure to give such notice but the omission so to notify such indemnifying
party of any such action, suit or proceeding shall not relieve it from any
liability that it may have to any indemnified party for contribution or
otherwise than under this Section. In case any such action, suit or proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and the approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses, except as provided below and except for the
reasonable costs of investigation subsequently incurred by such indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to employ its counsel in any such action, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized in writing
by the indemnifying parties, (ii) the indemnified party shall have reasonably
concluded that there may be a conflict of interest between the indemnifying
parties and the indemnified party in the conduct of the defense of such action
(in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party) or (iii) the
indemnifying parties shall not have employed counsel to assume the defense of
such action within a reasonable time after notice of the commencement thereof,
in each of which cases the fees and expenses of counsel shall be at the expense
of the indemnifying parties. An indemnifying party shall not be liable for any
settlement of any action, suit, proceeding or claim effected without its written
consent.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 8 is due in accordance with its terms but for any reason is held to be
unavailable from the Company Indemnitors or the Selling Shareholders, the
Company Indemnitors, the Selling Shareholders and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting any contribution received by the
Company Indemnitors or the Selling Shareholders from persons other than the
Underwriters, such as persons who control the Company within the meaning of the
Securities Act, officers of the Company who signed the Registration Statement
and directors of the Company, who may also be liable for contribution) to which
the Company Indemnitors, the Selling Shareholders and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other hand from the offering of the Shares
or, if such allocation is not permitted by applicable law or indemnification is
not available as a result of the indemnifying party not having received notice
as provided in Section 8 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company Indemnitors and the Selling Shareholders on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other
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relevant equitable considerations. The relative benefits received by the Company
and the Underwriters shall be deemed to be in the same proportion as (x) the
total proceeds from the offering (net of underwriting discounts but before
deducting expenses) received by the Company and the Selling Shareholders, as set
forth in the table on the cover page of the Prospectus, bear to (y) the
underwriting discounts received by the Underwriters, as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company
Indemnitors and the Selling Shareholders or the Underwriters shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact related to information supplied by the Company and
the Selling Shareholders or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company Indemnitors, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 9, (i) in no
case shall any Underwriter (except as may be provided in the Agreement Among
Underwriters) be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder, and (ii) the Company Indemnitors and the Selling Shareholders shall
be liable and responsible for any amount in excess of such underwriting
discount; provided, however, that 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. For purposes of this Section 8, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of the Section 15 of the Securities Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) in the immediately preceding sentence of this Section 9. Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section,
notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent. The Underwriter's
obligations to contribute pursuant to this Section 9 are several in proportion
to their respective underwriting commitments and not joint.
10. Termination. This Agreement may be terminated with respect to
the Shares to be purchased on a Closing Date by the Representative by notifying
the Company at any time:
(a) in the absolute discretion of the Representative at or
before any Closing Date: (i) if on or prior to such date, any domestic or
international event or act or
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27
occurrence has materially disrupted, or in the opinion of the Representative
will in the near future materially disrupt, the securities markets; (ii) if
there has occurred any new outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Representative, inadvisable to proceed with the offering; (iii) if there shall
be such a material adverse change in general financial, political or economic
conditions or the effect of international conditions on the financial markets in
the United States is such as to make it, in the reasonable judgment of the
Representative, inadvisable or impracticable to market the Shares; (iv) if
trading in the Shares has been suspended by the Commission or trading generally
on the New York Stock Exchange, Inc. or the over the counter market has been
suspended or limited, or minimum or maximum ranges for prices for securities
shall have been fixed, or maximum ranges for prices for securities have been
required, by said exchange or by order of the Commission, the National
Association of Securities Dealers, Inc., or any other governmental or regulatory
authority; (v) if a banking moratorium has been declared by any state or Federal
authority; or (vi) if there has been, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the Company and
its subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business; or
(b) at or before any Closing Date, that any of the
conditions specified in Section 6 shall not have been fulfilled when and as
required by this Agreement.
If this Agreement is terminated pursuant to any of its provisions, the
Company and the Selling Shareholders shall not be under any liability to any
Underwriter, and no Underwriter shall be under any liability to the Company or
the Selling Shareholders, except that (y) if this Agreement is terminated by the
Representative or the Underwriters because of any failure, refusal or inability
on the part of the Company or the Selling Shareholders to comply with the terms
or to fulfill any of the conditions of this Agreement, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) incurred by them in
connection with the proposed purchase and sale of the Shares or in contemplation
of performing their obligations hereunder and (z) no Underwriter who shall have
failed or refused to purchase the Shares agreed to be purchased by it under this
Agreement, without some reason (such reason being the occurrence of one of the
events set forth in Section 10(a)) sufficient to justify cancellation or
termination of its obligations under this Agreement, shall be relieved of
liability to the Company, the Selling Shareholders or the other Underwriters for
damages occasioned by its failure or refusal.
11. Substitution of Underwriters. If one or more of the Underwriters
shall fail, other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 10, to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representative may find one or more substitute underwriters to
purchase such Shares or make such other arrangements as the Representative may
deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
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28
Representative, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date:
(a) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall not exceed 10% of the Shares
that all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number of
Shares that any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 11 by more than one-ninth of such number of
Shares without the written consent of such Underwriter; or
(b) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it may, but
is not obligated to, find one or more substitute underwriters reasonably
satisfactory to the Representative to purchase such Shares upon the terms set
forth in this Agreement.
In any such case, either the Representative or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representative and the Company. If the number
of Shares to be purchased on such Closing Date by such defaulting Underwriter or
Underwriters shall exceed 10% of the Shares that all the Underwriters are
obligated to purchase on such Closing Date, and none of the nondefaulting
Underwriters or the Company shall make arrangements pursuant to this Section
within the period stated for the purchase of the Shares that the defaulting
Underwriters agreed to purchase, this Agreement shall terminate with respect to
the Shares to be purchased on such Closing Date without liability on the part of
any nondefaulting Underwriter to the Company or the Selling Shareholders and
without liability on the part of the Company Indemnitors and the Selling
Shareholders, except in both cases as provided in Sections 7(b), 8, 9 and 10.
The provisions of this Section shall not in any way affect the liability of any
defaulting Underwriter to the Company, the Selling Shareholders or the
nondefaulting Underwriters arising out of such default. A substitute underwriter
hereunder shall become an Underwriter for all purposes of this Agreement.
12. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers, the
LLC, the Selling Shareholders and the Underwriters set forth in or made pursuant
to this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company, the
Selling Shareholders or any of the officers, directors or controlling persons
referred to in Sections 8 and 9 hereof, and shall survive delivery of and
payment for the Shares. The provisions of Sections 7(b), 8, 9 and 10 shall
survive the termination or cancellation of this Agreement.
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This Agreement has been and is made for the benefit of the Underwriters,
the Company, the Selling Shareholders and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of persons
controlling any of the Underwriters, or the Company, and directors and officers
of the Company, and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser of Shares from any
Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed
or delivered or by telephone or telegraph if subsequently confirmed in writing,
(a) if to the Representative, Xxxxxxxxxxx & Co., Inc., Xxxxxxxxxxx Xxxxx, Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxx X. Xxxxxxxx, and (b)
if to the Company, to its agent for service as such agent's address appears on
the cover page of the Registration Statement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflict of laws.
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30
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures hereto
were upon the same instrument. Please confirm that the foregoing correctly sets
forth the agreement among us.
Very truly yours,
T&W FINANCIAL CORPORATION
By:______________________________________
Xxxxxxx X. Price, Chief Executive Officer
T&W FINANCIAL SERVICES COMPANY L.L.C.
By:______________________________________
-----------------------------------------
, Managing Member
-----------------------------------------
Xxxxxxx X. Price
-----------------------------------------
Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. XxXxxxxx, Xx.
-----------------------------------------
Xxxx X. Xxxx
Confirmed:
XXXXXXXXXXX & CO., INC.
Acting on behalf of itself and as representative of
the several Underwriters named in Schedule II annexed hereto.
XXXXXXXXXXX & CO., INC.
By: ________________________________________
Xxxx X. Xxxxxxxx, Managing Director
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EXHIBIT A
Subsidiaries
T&W Leasing, Inc., a Washington corporation
T&W Financial Services Company L.L.C., a Washington limited liability company
T&W Finance Corp. II, a Delaware corporation
T&W Finance Corp. III, a Delaware corporation
T&W Funding Company I, LLC, a Delaware limited liability company
T&W Funding Company IV, LLC, a Delaware limited liability company
T&W Funding Company V, LLC, a Delaware limited liability company
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GDC DRAFT Dated August 20, 1997
SCHEDULE I
Number of
Firm Shares
Name to Be Sold
---- ----------
T&W Financial Corporation 2,200,000
Xxxxxxx X. Price 166,000
Xxxxxx X. Xxxxx 80,000
Xxxxxxx X. XxXxxxxx, Xx 57,000
Xxxx X. Xxxx 57,000
Total
---------
2,560,000
33
GDC DRAFT Dated August 20, 1997
SCHEDULE II
Number of
Firm Shares to
Name Be Purchased
---- --------------
Xxxxxxxxxxx & Co., Inc.
Total
---------
