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EXHIBIT 1.1
ULTRAK, INC.
2,600,000 Shares
of
Common Stock
UNDERWRITING AGREEMENT
[October , 1996]
--
X.X. XXXXXXXX & CO.
XXXX XXXXXXXXX XXXXXXXX & CO.
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxxx & Co.
X.X. Xxxxxxxx Financial Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Ultrak, Inc., a Delaware corporation (the "Company"), and certain
stockholders of the Company identified on Schedule I hereto (the "Selling
Stockholders") propose to sell to the several underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as the representatives
(the "Representatives"), 2,507,540 and 92,460 shares, respectively (the "Firm
Shares"), of common stock, par value $.01 per share ("Common Stock"), of the
Company. The 2,600,000 shares of Common Stock are referred to herein as the
"Firm Shares." The Company proposes to grant to the Underwriters an option to
purchase up to 390,000 additional shares of Common Stock (the "Option Shares"),
as provided for in Section 3 of this Agreement solely for the purpose of
covering over-allotments in connection with the distribution and sale of the
Firm Shares. The Underwriters, severally and not jointly, are willing to
purchase the Firm Shares set forth opposite their respective names on Schedule
II hereto and their pro rata share of the Option Shares in the event the
Representatives elect to exercise the over-allotment option in whole or in
part. The Firm Shares and the Option Shares purchasable pursuant to this
Agreement are collectively referred to herein as the "Shares."
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1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), a registration statement on Form S-3
(Registration No. 333-_____), including the related preliminary
prospectus relating to the Shares, and has filed one or more amendments
thereto. Copies of such registration statement and any amendments,
including any post-effective amendments, and all forms of the related
prospectuses contained therein and any supplements thereto, have been
delivered to you. Such registration statement, including the
prospectus, Part II, all financial schedules and exhibits thereto, and
all information deemed to be a part of such Registration Statement
pursuant to Rule 430A and Rule 434 under the Securities Act, as amended
at the time when it shall become effective, and any Registration
Statement filed pursuant to Rule 462(b) under the Securities Act (a
"Rule 462(b) Registration Statement") are herein referred to as the
"Registration Statement," and the prospectus included as part of the
Registration Statement on file with the Commission that discloses all
the information that was omitted from the prospectus on the effective
date pursuant to Rule 430A or Rule 434 of the Rules and Regulations (as
defined below) and in the form filed pursuant to Rule 424(b) under the
Securities Act is herein referred to as the "Final Prospectus." The
prospectus included as part of the Registration Statement on the date
when the Registration Statement became effective is referred to herein
as the "Effective Prospectus." Any prospectus included in the
Registration Statement and in any amendment thereto prior to the
effective date of the Registration Statement is referred to herein as a
"Preliminary Prospectus." For purposes of this Agreement, "Rules and
Regulations" mean the rules and regulations promulgated by the
Commission under either the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), as applicable.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus, at the time of filing thereof, complied with the
requirements of the Securities Act and the Rules and Regulations, and
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; except that the foregoing does not apply to
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
specifically for use therein (it being understood that the only
information so provided is the information included in the last
paragraph on the cover page, the last two paragraphs on page two and in
the first, third, fourth and eighth paragraphs under the caption
"Underwriting" in the Final Prospectus). When the Registration
Statement becomes effective and at all times subsequent thereto up to
and including the First Closing Date (as hereinafter defined), (i) the
Registration Statement, the Effective Prospectus and Final Prospectus
and any amendments or supplements thereto will contain all statements
which are required to be stated therein in accordance with the
Securities Act, the Exchange Act and the Rules and Regulations and will
comply with the requirements of the Securities
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Act, the Exchange Act and the Rules and Regulations, and (ii) neither
the Registration Statement, the Effective Prospectus nor the Final
Prospectus nor any amendment or supplement thereto will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they are made, not
misleading; except that the foregoing does not apply to statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for
use therein (it being understood that the only information so provided
is the information included in the last paragraph on the cover page, the
last two paragraphs on page two and in the first, third, fourth and
eighth paragraphs under the caption "Underwriting" in the Final
Prospectus).
(c) The Company and each subsidiary of the Company (as used
herein, the term "subsidiary" includes any corporation, joint venture,
or partnership in which the Company or any subsidiary of the Company has
50% or greater ownership interest) is duly organized and validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with full power and authority (corporate and other, as
the case may be) to own its properties and conduct its business as now
conducted and is duly qualified or authorized to do business and is in
good standing in all jurisdictions wherein the nature of its business or
the character of property owned or leased may require it to be qualified
or authorized to do business, except for jurisdictions in which the
failure to so qualify would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole. The Company and its
subsidiaries hold all licenses, consents and approvals, and have
satisfied all eligibility and other similar requirements imposed by
federal and state regulatory bodies, administrative agencies or other
governmental bodies, agencies or officials, except where the failure to
do so could not reasonably be expected to have a material adverse effect
on the business, condition (financial or otherwise), prospects, net
worth or results of operations of the Company and its subsidiaries,
taken as a whole. Each of the Company's subsidiaries, other than Maxpro
Systems Pty. Ltd. ("Maxpro") and Groupe Xxxxxx, x.x. ("Xxxxxx"), is set
forth on Exhibit 21.1 to the Company's Form 10-K for the year ended
December 31, 1995.
(d) The capitalization of the Company as of September 30, 1996
is as set forth under the caption "Capitalization" in the Effective
Prospectus and the Final Prospectus, and the Company's capital stock
conforms to the description thereof contained under the caption
"Description of Capital Stock" in the Effective Prospectus and the Final
Prospectus. All the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable. None of the issued shares of capital stock of the
Company have been issued in violation of any preemptive or similar
rights. The Shares have been duly and validly authorized and, upon
issuance and delivery and payment therefor in the manner herein
described, will be validly issued, fully paid and nonassessable. Upon
the effective date of the offering of the Shares, there will be no
preemptive rights or other rights to subscribe for or to purchase, or
any restriction upon the transfer of, any shares of Common Stock
pursuant to the Company's Certificate of Incorporation, bylaws or other
governing documents or any agreement or
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other instrument to which the Company is a party or by which it may be
bound except as described in the Effective Prospectus and the Final
Prospectus and except for restrictions on transfer imposed under
applicable securities laws. Except as disclosed in the Effective
Prospectus and the Final Prospectus, and except for registration rights
held by Petrus Fund, L.P. with respect to 92,460 shares of Common Stock
in the aggregate, neither the filing of the Registration Statement nor
the offer or sale of the Shares as contemplated by this Agreement gives
rise to any rights for or relating to the registration of any shares of
Common Stock or any other securities of the Company. The Underwriters
will receive good and marketable title to the Shares to be issued and
delivered hereunder by the Company, free and clear of all liens, claims,
encumbrances, security interests, restrictions, stockholders'
agreements, voting trusts or other claims of third parties whatsoever.
(e) As of the date hereof, all of the outstanding shares of
capital stock or equity interests of the Company's subsidiaries are
owned by the Company, directly or indirectly through another subsidiary,
free and clear of all liens, claims, encumbrances, security interests,
restrictions, stockholder agreements, voting trusts or other claims of
third parties. There are no preemptive rights or other rights to
subscribe for or purchase, or any restriction upon the transfer of any
shares of capital stock of the Company's subsidiaries pursuant to any
subsidiary's charter, bylaws, or other governing documents or any
agreement or other instruments to which such subsidiary is a party.
(f) All offers and sales by the Company of its securities
prior to the date hereof were at all relevant times made pursuant to an
effective registration statement under and in compliance with the
registration requirements of the Securities Act, or at all relevant
times were exempt from the registration requirements of the Securities
Act and were the subject of an available exemption from the registration
requirements of the applicable state securities or Blue Sky laws.
(g) The Company has full legal right, power and authority to
enter into this Agreement and to sell and deliver the Shares to the
Underwriters as provided herein, and this Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, except to the extent rights to
indemnity hereunder may be limited by federal or state laws or the
public policy underlying such laws. No consent, approval, authorization
or order of any court or governmental agency or body or third party is
required for the performance of this Agreement by the Company or the
consummation by the Company of the transactions contemplated hereby,
except such as have been obtained and such as may be required by the
National Association of Securities Dealers, Inc. ("NASD") or under the
Securities Act, or state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters. The
issue and sale of the Shares to be sold by the Company, the Company's
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in a breach or violation of, or
conflict with, any of the terms and provisions of, or constitute a
default by the Company under, any indenture, mortgage, deed of trust,
loan
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agreement, lease or other agreement or instrument to which the Company
or any of its subsidiaries is a party or to which any of their
properties is subject, the Certificate of Incorporation or bylaws of the
Company or any statute or any judgment, decree, order, rule or
regulation of any court or governmental agency or body applicable to the
Company or any of its subsidiaries or any of their properties. The
Company is not in violation of its Certificate of Incorporation or
bylaws or any law, administrative rule or regulation or arbitrator's or
administrative or court decree, judgment or order or in violation or
default (there being no existing state of facts which with notice or
lapse of time or both would constitute a default) in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, deed of trust, mortgage, loan agreement,
note, lease, agreement or other instrument or permit to which it is a
party or by which it or any of its properties is or may be bound, other
than violations and defaults which could not reasonably be expected to
have a material adverse effect on the business, condition (financial or
otherwise), prospects, net worth or results of operations of the Company
and its subsidiaries, taken as a whole.
(h) The consolidated financial statements and the related
notes of the Company, Diamond Electronics, Inc. ("Diamond"), Maxpro and
Bisset incorporated by reference in the Registration Statement, the
Effective Prospectus and the Final Prospectus present fairly the
financial position, results of operations and changes in financial
position and cash flow of the Company, Diamond, Maxpro and Bisset at the
dates and for the periods to which they relate and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated. The financial and
statistical data set forth in the Effective Prospectus and the Final
Prospectus under the captions "Prospectus Summary," "Use of Proceeds,"
"Capitalization," "Selected Consolidated Financial Data," "Selected Pro
Forma Condensed Consolidated Operating Data," "Management's Discussion
and Analysis of Financial Condition and Results of Operations,"
"Business" and "Principal and Selling Stockholders" fairly presents the
information set forth therein on the basis stated in the Effective
Prospectus and the Final Prospectus. Xxxxx Xxxxxxxx LLP, Xxxxx
Xxxxxxxx, chartered accountants (Perth, Australia), KPMG, chartered
accountants (Perth, Australia) and Norman, Jones, Xxxxx & Co., whose
reports appear in the Effective Prospectus and the Final Prospectus, are
independent accountants as required by the Securities Act and the Rules
and Regulations.
(i) Subsequent to September 30, 1996, neither the Company nor
any of its subsidiaries has sustained any material loss or interference
with its or their business or properties from fire, flood, hurricane,
earthquake, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, which is not disclosed in the Effective Prospectus and
the Final Prospectus; and subsequent to the respective dates as of which
information is given in the Registration Statement, the Effective
Prospectus and the Final Prospectus, (i) neither the Company nor any of
its subsidiaries has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions not in
the ordinary course of business, and (ii) there has not been any change
in the capital stock, partnership interests,
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joint venture interests, long-term debt, obligations under capital
leases or short-term borrowings of the Company, other than in the
ordinary course of business, or any issuance of options, warrants or
rights to purchase the capital stock of the Company, or any adverse
change, or any development involving a prospective adverse change, in
the general affairs, management, business, condition (financial or
otherwise), prospects, net worth or results of operations of the Company
and its subsidiaries, taken as a whole, except in each case as described
in or contemplated by the Effective Prospectus and the Final Prospectus.
(j) Except as described in the Effective Prospectus and the
Final Prospectus, there is no pending, or to the knowledge of the
Company, threatened action, suit, proceeding, inquiry or investigation,
to which the Company or any of its subsidiaries or any of the Company's
officers or directors is a party, or to which the property of the
Company or any of its subsidiaries is subject, before or brought by any
court or governmental agency or body, wherein an unfavorable decision,
ruling or finding could prevent or materially hinder the consummation of
this Agreement or could have a material adverse effect on the business
condition (financial or otherwise), prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole.
(k) There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in the
Registration Statement, the Effective Prospectus or the Final Prospectus
or to be filed as exhibits to the Registration Statement which have not
been described or filed as required.
(l) Except as described in the Effective Prospectus and the
Final Prospectus, the Company and its subsidiaries have good title to
all real and material personal property owned by them, free and clear of
all liens, claims, charges, encumbrances or defects except those
reflected in the financial statements hereinabove described or those
which could not reasonably be expected to have a material adverse effect
on the business, condition (financial or otherwise), prospects, net
worth or results of operations of the Company and its subsidiaries,
taken as a whole. The real and personal property and buildings referred
to in the Effective Prospectus and the Final Prospectus that are leased
from others by the Company or its subsidiaries are held under valid,
subsisting and enforceable leases. The Company and its subsidiaries own
or lease all such properties as are necessary to their operations as now
conducted.
(m) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
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(n) The Company and each of its subsidiaries have filed all
federal, state and local income, excise and franchise tax returns
required to be filed through the date hereof and have paid all taxes
shown as due therefrom; and there is no tax deficiency that has been,
nor does the Company or any of its subsidiaries have knowledge of any
tax deficiency which is likely to be asserted against the Company or any
of its subsidiaries, which if determined adversely could materially and
adversely affect the earnings, assets, affairs, business prospects or
condition (financial or otherwise) of the Company and its subsidiaries,
taken as a whole.
(o) The Company and each of its subsidiaries operate their
businesses in conformity in all material respects with all applicable
statutes, common laws, ordinances, decrees, orders, rules and
regulations of governmental bodies. The Company and each of its
subsidiaries have all material licenses, approvals or consents to
operate their businesses in all locations in which such businesses are
currently being operated, and neither the Company nor any of its
subsidiaries is aware of any existing or imminent matter that may
materially adversely impact any of their operations or business
prospects other than as specifically disclosed in the Effective
Prospectus and the Final Prospectus. No director, officer, or to the
Company's knowledge, agent or employee of the Company or any of its
subsidiaries, any other person associated with or acting for or on
behalf of the Company or any of its subsidiaries, has directly or
indirectly made any contribution, gift, bribe, rebate, payoff, influence
payment, kickback, or other payment to any person, private or public,
regardless of form, whether in money, property, or services (x) to
obtain favorable treatment in securing business, (y) to pay for
favorable treatment for business obtained, or (z) to obtain special
concessions or for special concessions already obtained for or in
respect of the Company.
(p) Neither the Company nor any of its subsidiaries has failed
to file with the applicable regulatory authorities any statement,
report, information or form required by any applicable law, regulation
or order where the failure to file the same would have a material
adverse effect on the Company and its subsidiaries, taken as a whole, or
on their respective abilities to conduct business in any state; all such
filings or submissions were in material compliance with applicable laws
when filed and no deficiencies have been asserted by any regulatory
commission, agency or authority with respect to such filings or
submissions. Neither the Company nor any of its subsidiaries has failed
to maintain in full force and effect any material license or permit
necessary or proper for the conduct of their respective businesses, or
received any notification that any revocation or limitation thereof is
threatened or pending, and, except as disclosed in the Effective
Prospectus and the Final Prospectus, there is not pending any change
under any law, regulation, license or permit which could materially
adversely affect any of their respective businesses, operations,
properties or business prospects. Neither the Company nor any of its
subsidiaries has received any notice of violation of or been threatened
with a charge of violating and are not, to the best of their knowledge,
under investigation with respect to a possible violation of any
provision of any law, regulation or order.
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(q) Except as disclosed in the Effective Prospectus and the
Final Prospectus, no labor dispute exists with the Company's or any of
its subsidiaries' employees or is imminent which could reasonably be
expected to have a material adverse effect on the business, condition
(financial or otherwise), prospects, net worth or results of operations
of the Company and its subsidiaries, taken as a whole. Neither the
Company nor any of its subsidiaries is aware of any existing or imminent
labor disturbance by any of their employees which could reasonably be
expected to have a material adverse effect on the business, condition
(financial or otherwise), prospects, net worth or results of operation
of the Company and its subsidiaries, taken as a whole.
(r) Except as disclosed in the Effective Prospectus and the
Final Prospectus, the Company owns or possesses, or can acquire on
reasonable terms, the patents, licenses, copyrights, trademarks, service
marks and trade names presently employed by it in connection with the
businesses now operated by it, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which,
alone or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could reasonably be expected to have a material
adverse effect on the business, condition (financial or otherwise),
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole.
(s) Neither the Company nor any of the directors, officers, or
to the Company's knowledge, employees or agents of the Company, have
taken and will not take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might be expected
to constitute, stabilization or manipulation of the price of the Common
Stock.
(t) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
hazardous substances by the Company or any of its subsidiaries (or, to
the knowledge of the Company, any of its or their predecessors in
interest) at, upon or from any of the property now or previously owned
or leased by the Company or any of its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit or which could reasonably be expected to require remedial action
under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which
could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a material adverse effect
on the business, condition (financial or otherwise), prospects,
properties, net worth or results of operations of the Company and its
subsidiaries, taken as a whole; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or of any hazardous substances due to or caused
by the Company or any of its subsidiaries or with respect to which the
Company or any of its subsidiaries had knowledge, except for any such
spill, discharge, leak, emission, injection, escapes, dumpings or
releases which would not be reasonably likely to have, singularly or in
the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings or releases, a material adverse
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effect on the business, condition (financial or otherwise), prospects,
net worth or results of operations of the Company and its subsidiaries,
taken as a whole; and the term "hazardous substances" shall have the
meaning specified in any applicable local, state, federal and foreign
laws or regulations with respect to environmental protection.
(u) The Company and its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and
in such amounts as management believes is appropriate to the business of
the Company and its subsidiaries; all such policies of insurance
insuring the Company and its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; and
there are no claims by the Company or any of its subsidiaries under any
such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause.
(v) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940.
(w) The Shares have been duly authorized for quotation on The
NASDAQ Stock Market's National Market, subject to notice of issuance.
2. Representations and Warranties of the Selling Stockholders. Each
of the Selling Stockholders, severally and not jointly, represents and warrants
to each Underwriter and agrees as follows that:
(a) Such Selling Stockholder at the First Closing Date (as
defined herein) will have valid and marketable title to the Shares set
forth in Schedule I to be sold by such Selling Stockholder, free and
clear of any liens, claims, encumbrances or equities (other than as
imposed by the Securities Act or this Agreement), and full right, power
and authority to effect the sale and delivery of such Shares; and upon
the delivery of and payment for the Shares to be sold by such Selling
Stockholder pursuant to this Agreement, valid and marketable title
thereto, free and clear of any liens, claims, encumbrances or equities,
will be transferred to the Underwriters.
(b) Such Selling Stockholder has duly executed and delivered
the Custody Agreement and Power of Attorney in the form previously
delivered to the Representatives, appointing Xxxxxx X. Xxxxxx and Xxx X.
Xxxxx, and each of them as each Selling Stockholder's attorney-in-fact
(the "Attorney-in-Fact") and as custodian (the "Custodian"). The
Attorney-in-Fact is authorized to execute, deliver and perform this
Agreement on behalf of such Selling Stockholder, to deliver the Shares
to be sold by such Selling Stockholder hereunder, to accept payment
therefor and otherwise to act on behalf of such Selling Stockholder in
connection with this Agreement. If the Selling Stockholder's shares are
issuable pursuant to a warrant agreement, the Selling
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Stockholder has delivered to the Custodian the original warrant
agreement, and the Attorney-in-Fact is authorized to exercise the
warrant on behalf of the Selling Stockholder subject to the terms of the
Custody Agreement and Power of Attorney in order to deliver the Shares
to be sold by such Selling Stockholder hereunder. Certificates, in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank, representing the Shares
to be sold by such Selling Stockholder hereunder have been (or if
issuable pursuant to a warrant agreement, will be) deposited with the
Custodian pursuant to the Custody Agreement for the purpose of delivery
pursuant to this Agreement. Such Selling Stockholder agrees that the
shares of Common Stock underlying a warrant agreement and to be sold
hereunder or represented by the certificates on deposit with the
Custodian are subject to the interest of the Underwriters hereunder,
that the arrangements made for such custody and the appointment of the
Attorney-in-Fact are to that extent irrevocable, and that the
obligations of such Selling Stockholder hereunder shall not be
terminated except as provided in this Agreement and the Custody
Agreement. If such Selling Stockholder should die or become
incapacitated or if any other event should occur, before the delivery of
the Shares of such Selling Stockholder hereunder, the certificates for
such Shares deposited with the Custodian shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement
as if such death, incapacity or other event had not occurred, regardless
of whether the Custodian or the Attorney-in-Fact shall have received
notice thereof.
(c) Such Selling Stockholder, acting through his duly
authorized Attorney-in-Fact, has duly executed and delivered this
Agreement and the Custody Agreement and Power of Attorney; this
Agreement constitutes a legal, valid and binding obligation of such
Selling Stockholder, all authorizations and consents necessary for the
execution and delivery of this Agreement and the Custody Agreement and
Power of Attorney on behalf of such Selling Stockholder and for the sale
and delivery of the Shares to be sold by such Selling Stockholder
hereunder have been given, except as may be required by the Securities
Act or state securities laws; and such Selling Stockholder has the legal
capacity and full right, power and authority to execute this Agreement
and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody
Agreement and Power of Attorney and the consummation of the transactions
contemplated hereby and thereby by such Selling Stockholder will not
result in a breach or violation of, or conflict with, any of the terms
of provisions of, or constitute a default by such Selling Stockholder
under, any indenture, mortgage, deed of trust, trust (constructive or
other), loan agreement, lease, franchise, license or other agreement or
instrument to which such Selling Stockholder or any of his or its
properties is bound, or any statute, judgment, decree, order, rule or
regulation of any court or governmental agency or body applicable to
such Selling Stockholder or any of his or its properties.
(e) Such Selling Stockholder has not distributed nor, other
than as permitted by the Securities Act and the Rules and Regulations,
will distribute any prospectus or
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other offering material in connection with the offer and sale of the
Shares other than any Preliminary Prospectus filed with the Commission
or the Final Prospectus or other material permitted by the Securities
Act.
(f) For a period of 90 days from the effective date of the
Registration Statement, such Selling Stockholder will not, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of any shares of Common Stock, other than to the
Underwriters pursuant to this Agreement, without the prior written
consent of the Representatives.
(g) Without having undertaken to determine independently the
accuracy or completeness of either the representations and warranties of
the Company contained herein or the information contained in the
Registration Statement, including the Preliminary Prospectus, such
Selling Stockholder has no reason to believe that the representations
and warranties of the Company contained in Section 1 of this Agreement
are not true and correct. Such Selling Stockholder has reviewed and is
familiar with the Registration Statement as originally filed with the
Commission and the Preliminary Prospectus contained therein. Such
Selling Stockholder has no knowledge of any untrue statement of a
material fact regarding such Selling Stockholder or any omission of a
material fact regarding such Selling Stockholder necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; such Selling Stockholder is not
prompted to sell the Shares to be sold by such Selling Stockholder's
knowledge of any material non-public information concerning the Company
or any of its subsidiaries.
(h) At the time the Registration Statement becomes effective
(i) such parts of the Registration Statement and any amendments and
supplements thereto as specifically refer to such Selling Stockholder
will not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) such parts of the Effective
Prospectus and Final Prospectus as specifically refer to such Selling
Stockholder will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(i) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory body, administrative or
other governmental body is necessary in connection with the execution
and delivery of this Agreement by such Selling Stockholder, and the
consummation by him of the transactions herein contemplated (other than
as required by the Securities Act, state securities laws and the NASD).
(j) Any certificates signed by or on behalf of such Selling
Stockholder as such and delivered to the Representatives or to counsel
for the Representatives shall be
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deemed a representation and warranty by such Selling Stockholder to each
Underwriter as to the matters covered thereby.
(k) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder agrees to deliver to you prior to
or at the First Closing Date (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(l) Such Selling Stockholder will not take, directly or
indirectly, any action designed to cause or result in, or which might
constitute or be expected to constitute, stabilization or manipulation
of the price of the Common Stock.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company and the Selling Stockholders
agree, as provided in the introductory paragraph, to sell to each of the
Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase at a purchase price of $__.___ per share, the number
of Firm Shares set forth opposite such Underwriter's name in Schedule II
hereto, plus such additional number of Firm Shares which such
Underwriter may become obligated to purchase pursuant to Section 9
hereof.
(b) The Company also grants to the Underwriters an option to
purchase, solely for the purpose of covering over-allotments in the sale
of Firm Shares, all or any portion of the Option Shares at the purchase
price per share set forth above. The option granted hereby may be
exercised as to all or any part of the Option Shares at any time (but
only once) within 30 days after the date the Registration Statement
becomes effective. The Underwriters shall not be under any obligation
to purchase any Option Shares prior to the exercise of such option. The
option granted hereby may be exercised by the Underwriters by the
Representatives giving written notice to the Company setting forth the
number of Option Shares to be purchased and the date and time for
delivery of and payment for such Option Shares and stating that the
Option Shares referred to therein are to be used solely for the purpose
of covering over-allotments in connection with the distribution and sale
of the Firm Shares. If such notice is given prior to the First Closing
Date (as defined herein), the date set forth therein for such delivery
and payment shall not be earlier than two full business days thereafter
or the First Closing Date, whichever occurs later. If such notice is
given on or after the First Closing Date, the date set forth therein for
such delivery and payment shall not be earlier than three full business
days thereafter. In either event, the date so set forth shall not be
more than 15 full business days after the date of such notice. The date
and time set forth in such notice is herein called the "Option Closing
Date." Upon exercise of the option, the Company shall become obligated
to
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issue and sell to the Underwriters, and, subject to the terms and
conditions herein set forth, the Underwriters shall become obligated to
purchase, for the account of each Underwriter, from the Company, the
number of Option Shares specified in such notice. Option Shares shall
be purchased for the accounts of the Underwriters in proportion to the
number of Firm Shares set forth opposite such Underwriter's name in
Schedule II hereto, except that the respective purchase obligations of
each Underwriter shall be adjusted so that no Underwriter shall be
obligated to purchase fractional Option Shares.
(c) Certificates in definitive form for the Firm Shares that
each Underwriter has agreed to purchase hereunder shall be delivered by
or on behalf of the Company and the Selling Stockholders to the
Underwriters for the account of such Underwriter against payment by such
Underwriter or on its behalf of the purchase price therefor by
certified, official bank or New York Clearing House funds check payable
in next day funds to the order of the Company and the custodians for the
Selling Stockholders at the offices of X.X. Xxxxxxxx & Co. ("Bradford"),
000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or at such other place
as may be agreed upon by Bradford and the Company, at 10:00 A.M.,
Nashville time, on the third full business day after this Agreement
becomes effective, or at such other time not later than the seventh full
business day thereafter as the Representatives and the Company may
determine, such time of delivery against payment being herein referred
to as the "First Closing Date." The First Closing Date and the Option
Closing Date are herein individually referred to as the "Closing Date"
and collectively referred to as the "Closing Dates." Certificates in
definitive form for the Option Shares which each Underwriter shall have
agreed to purchase hereunder shall be similarly delivered by or on
behalf of the Company on the Option Closing Date. The certificates in
definitive form for the Shares to be delivered will be in good delivery
form and in such denominations and registered in such names as Xxxxxxxx
xxx request not less than 48 hours prior to the First Closing Date or
the Option Closing Date, as the case may be. Such certificates will be
made available for checking and packaging at a location in Nashville,
Tennessee or New York, New York, as may be designated by the
Representatives, at least 24 hours prior to the First Closing Date or
the Option Closing Date, as the case may be. It is understood that the
Representatives may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for the Shares to be purchased
by such Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations
hereunder.
4. Offering by the Underwriters. After the Registration Statement
becomes effective, the several Underwriters propose to offer for sale to the
public the Firm Shares and any Option Shares that may be sold at the price and
upon the terms set forth in the Final Prospectus.
5. Covenants of the Company. The Company covenants and agrees with
each of the Underwriters that:
(a) The Company shall comply with the provisions of and make
all requisite filings with the Commission pursuant to Rules 424, 430A
and 434 of the Rules and Regulations and to notify you promptly (in
writing, if requested) of all such filings. The
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Company shall notify you promptly of any request by the Commission for
any amendment of or supplement to the Registration Statement, the
Effective Prospectus or the Final Prospectus or for additional
information; the Company shall prepare and file with the Commission,
promptly upon your request, any amendments of or supplements to the
Registration Statement, the Effective Prospectus or the Final Prospectus
which, in your opinion, based on the advice of your legal counsel, may
be necessary or advisable in connection with the distribution of the
Shares; and the Company shall not file any amendment of or supplement to
the Registration Statement, a Rule 462(b) Registration Statement, the
Effective Prospectus or the Final Prospectus which is not approved by
you after reasonable notice thereof. The Company shall advise you
promptly of the issuance by the Commission or any jurisdiction or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, suspending or preventing
the use of any Preliminary Prospectus, a Rule 462(b) Registration
Statement, the Effective Prospectus or the Final Prospectus or
suspending the qualification of the Shares for offering or sale in any
jurisdiction, or of the institution of any proceedings for any such
purpose; and the Company shall use its best efforts to prevent the
issuance of any stop order or other such order and, should a stop order
or other such order be issued, to obtain as soon as possible the lifting
thereof.
(b) The Company will take or cause to be taken, in cooperation
with the Representatives and counsel to the Underwriters, all necessary
action and furnish to whomever you direct such information as may be
reasonably required in qualifying the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Underwriters may designate and will continue such qualifications in
effect for as long as may be reasonably necessary to complete the
distribution of the Shares. The foregoing notwithstanding, the Company
shall not be required to qualify as a foreign corporation or to take any
action which would subject it to general service of process in any
jurisdiction where it is not presently qualified or where it would be
subject to taxation as a foreign corporation.
(c) Within the time during which a Final Prospectus relating
to the Shares is required to be delivered under the Securities Act, the
Company shall comply with all requirements imposed upon it by the
Securities Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as is necessary to
permit the continuance of sales of or dealings in the Shares as
contemplated by the provisions hereof and the Final Prospectus. If
during such period any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to
amend the Registration Statement or supplement the Final Prospectus to
comply with the Securities Act, the Company shall promptly notify you
and shall amend the Registration Statement or supplement the Final
Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance.
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(d) The Company will furnish without charge to the
Representatives and make available to the Underwriters copies of the
Registration Statement (four of which shall be signed and shall be
accompanied by all exhibits, including any that are incorporated by
reference, which have not previously been furnished), each Preliminary
Prospectus, the Effective Prospectus and the Final Prospectus, and all
amendments and supplements thereto, including any prospectus or
supplement prepared after the effective date of the Registration
Statement, in each case as soon as available and in such quantities as
the Underwriters may reasonably request.
(e) The Company will (i) deliver to you at such office or
offices as you may designate as many copies of the Preliminary
Prospectus and Final Prospectus as you may reasonably request, and (ii)
for a period of not more than nine months after the Registration
Statement becomes effective, send to the Underwriters as many additional
copies of the Final Prospectus and any supplement thereto as you may
reasonably request.
(f) The Company shall make generally available to its security
holders, in the manner contemplated by Rule 158(b) under the Securities
Act, as promptly as practicable and in any event no later than 45 days
after the end of its fiscal quarter in which the first anniversary of
the effective date of the Registration Statement occurs, an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act covering a period of at least 12 consecutive months beginning after
the effective date of the Registration Statement.
(g) The Company will apply the net proceeds from the sale of
the Shares as set forth under the caption "Use of Proceeds" in the Final
Prospectus and will timely file reports on Form SR with the Commission
in accordance with Rule 463 of the Securities Act or any successor
provision.
(h) During a period of five years from the effective date of
the Registration Statement, the Company will furnish to the
Representatives copies of all reports and other communications
(financial or other) furnished by the Company to its Stockholders and,
as soon as available, copies of any reports or financial statements
furnished or filed by the Company to or with the Commission, NASDAQ or
any national securities exchange on which any class of securities of the
Company may be listed.
(i) The Company will, from time to time, after the effective
date of the Registration Statement, file with the Commission such
reports as are required by the Securities Act, the Exchange Act and the
Rules and Regulations, and shall also file with state securities
commissions in states where the Shares have been sold by you (as you
shall have advised us in writing) such reports as are required to be
filed by the securities acts and the regulations of those states.
(j) Except pursuant to this Agreement or with the prior
written consent of the Representatives, for a period of 90 days from the
effective date of the Registration Statement, the Company will not, and
the Company has provided agreements executed by
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each of its executive officers and directors and certain beneficial
owners of the Company's outstanding Common Stock as designated by the
Representatives providing that for a period of 90 days from the
effective date of the Registration Statement, such person or entity will
not, directly or indirectly, offer for sale, sell, grant any options
(other than pursuant to existing employee benefit plans and agreements,
other existing compensation agreements and existing stock options),
rights or warrants with respect to any shares of Common Stock,
securities convertible into Common Stock or any other capital stock of
the Company, or otherwise dispose of any shares of Common Stock or such
other securities or capital stock.
(k) If at any time during the 25 day period after the
Registration Statement is declared effective, any rumor, publication or
event relating to or affecting the Company shall occur as a result of
which, in your opinion, the market price for the Shares has been or is
likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Final Prospectus), the Company will, after written notice from you
advising it as to the effect set forth above, prepare, consult with you
concerning the substance of and disseminate a press release or other
public statement, reasonably satisfactory to you, responding to or
commenting on such rumor, publication or event.
(l) The Company will not take, directly or indirectly, any
action designed to cause or result in, or which might constitute or be
expected to constitute, stabilization or manipulation of the price of
the Common Stock.
(m) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission
in compliance with Rule 462(b) and pay the applicable fees in accordance
with Rule 111 under the Securities Act by the earlier of (i) 10:00 p.m.
Eastern Time on the date hereof and (ii) the time confirmations are sent
or given, as specified by Rule 462(b)(2).
6. Expenses. The Company agrees with the Underwriters that (a)
whether or not the transactions contemplated by this Agreement are consummated
or this Agreement becomes effective or is terminated, the Company will pay all
fees and expenses incident to the performance of the obligations of the Company
hereunder, including, but not limited to, (i) the Commission's registration
fee, (ii) the expenses of printing (or reproduction) and distributing the
Registration Statement (including the financial statements therein and all
amendments and exhibits thereto), each Preliminary Prospectus, the Effective
Prospectus, the Final Prospectus, any amendments or supplements thereto, and
this Agreement and other underwriting documents, including Underwriters'
Questionnaires, Underwriters' Powers of Attorney, Blue Sky Memoranda and
Agreements Among Underwriters, (iii) fees and expenses of accountants and
counsel for the Company, (iv) expenses of registration or qualification of the
Shares under state Blue Sky and securities laws, including the fees and
disbursements of counsel to the Underwriters in connection therewith, (v)
filing fees paid or incurred by the Underwriters and related fees and expenses
of counsel to the Underwriters in connection with filings with the NASD, (vi)
expenses of registration of the outstanding shares of Common Stock under the
Exchange Act and inclusion
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for quotation of the outstanding shares of Common Stock on The NASDAQ Stock
Market's National Market, (vii) all travel, lodging and reasonable living
expenses incurred by the Company in connection with marketing, dealer and other
meetings attended by the Company and the Underwriters in marketing the Shares,
(viii) the costs and charges of the Company's transfer agent and registrar and
the cost of preparing the certificates for the Shares, and (ix) all other costs
and expenses incident to the performance of their obligations hereunder not
otherwise provided for in this Section; and (b) all out-of-pocket expenses,
including counsel fees, disbursements and expenses, incurred by the
Underwriters in connection with investigating, preparing to market and
marketing the Shares and proposing to purchase and purchasing the Shares under
this Agreement, will be borne and paid by the Company if the sale of the Shares
provided for herein is not consummated by reason of (i) the termination of this
Agreement by the Company pursuant to Section 13(a), or (ii) by reason of
termination of this Agreement by the Underwriters pursuant to Sections
13(b)(ii) or because of any failure or refusal on the part of the Company or
any Selling Stockholder to comply with the terms or fulfill any of the
conditions of this Agreement. The provisions of this Section shall not affect
any agreement that the Company and the Selling Stockholders may have for the
sharing of such costs and expenses; provided, however, the Underwriters may
deem the Company to be the primary obligor with respect to all costs, fees, and
expenses to be paid hereunder by the Company and the Selling Stockholders.
Neither the Company nor the Selling Stockholders shall in any event be liable
to any of the Underwriters for the loss of anticipated profits from the
transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters to purchase and pay for the Firm Shares and
Option Shares, shall be subject, in their reasonable discretion, to the
accuracy of the representations and warranties of the Company and the Selling
Stockholders herein as of the date hereof and as of the Closing Date as if made
on and as of the Closing Date, to the accuracy of the statements of the
Company's officers made pursuant to the provisions hereof, to the performance
by the Company and the Selling Stockholders of all of their covenants and
agreements hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective not later than 5:30 P.M.,
Washington, D.C. time, on the day following the date of this Agreement,
or such later time and date as shall have been consented to by the
Representatives and all filings required by Rules 424, 430A and 434 of
the Rules and Regulations shall have been made; if the Company has
elected to rely on Rule 462(b), the Rule 462(b) Registration Statement
shall have become effective not later than the earlier of (i) 9:00 p.m.
Nashville time on the date hereof, and (ii) the time confirmations are
sent or given, as specified by Rule 462(b)(2), or at such later time and
date as may be approved by the Underwriters; no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or
threatened or, to the knowledge of the Company or the Underwriters,
shall be contemplated by the Commission; any request of the Commission
for additional information (to be included in the Registration Statement
or the Final Prospectus or otherwise) shall have been complied with to
your satisfaction; and the
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NASD, upon review of the terms of the public offering of the Shares,
shall not have objected to such offering, such terms or the
Underwriters' participation in the same.
(b) No Underwriter shall have advised the Company that the
Registration Statement, Preliminary Prospectus, the Effective Prospectus
or Final Prospectus, or any amendment or any supplement thereto,
contains an untrue statement of fact which, in your judgment, is
material, or omits to state a fact which, in your judgment, is material
and is required to be stated therein or necessary to make the statements
therein not misleading and the Company shall not have cured such untrue
statement of fact or stated a statement of fact required to be stated
therein.
(c) The Representatives shall have received an opinion, dated
the Closing Date, from Gardere & Xxxxx, L.L.P., counsel for the Company
and the Selling Stockholders, to the effect that:
(i) The Company has been duly organized and is
validly existing and in good standing as a corporation under the
laws of the State of Delaware, with corporate power and authority
to own its properties and conduct its business as now conducted.
To the best knowledge of such counsel, the Company is duly
qualified to do business as a foreign corporation in good
standing in all jurisdictions where the failure to so qualify
would have a material adverse effect upon the Company and its
subsidiaries, taken as a whole.
(ii) Each of the Company's subsidiaries is
validly existing under the laws of its jurisdiction of
incorporation or organization, as applicable, with the corporate
or partnership power and authority to own its properties and
conduct its business as now conducted. The issued and
outstanding shares of capital stock of the Company's corporate
subsidiaries have been duly and validly authorized and issued,
are fully paid and nonassessable, and are owned beneficially and
of record by the Company free and clear of liens, claims,
encumbrances, security interests, voting trusts or other defects
of title whatsoever, except as disclosed in the Effective
Prospectus and the Final Prospectus. All interests in
partnership subsidiaries of the Company are owned beneficially
and of record by the Company free and clear of liens, claims,
encumbrances, security interests, or other defects of title
whatsoever, except as disclosed in the Effective Prospectus and
the Final Prospectus. Each subsidiary of the Company is duly
qualified to do business in all jurisdictions where the failure
to so qualify would have a material adverse effect upon the
Company and its subsidiaries, taken as a whole.
(iii) As of the dates specified therein, the
Company had authorized and issued capital stock as set forth
under the caption "Capitalization" in the Final Prospectus. All
of the outstanding shares of the capital stock of the Company
have been duly authorized and are validly issued, fully paid and
nonassessable, and the Shares have been duly authorized, and upon
issuance
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thereof and payment therefor as provided herein, will be validly
issued, fully paid and nonassessable; none of the issued shares
have been issued in violation of or subject to any preemptive
rights provided for by law or by the Company's Certificate of
Incorporation. There are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the
transfer of, the Shares pursuant to the Company's Certificate of
Incorporation, bylaws or other governing documents or any
agreement or other instrument known to such counsel after
reasonable investigation and inquiry to which the Company is a
party or by which it may be bound except as described in the
Effective Prospectus and Final Prospectus and except for
restrictions on transfer imposed under applicable securities
laws. Neither the filing of the Registration Statement nor the
offer or sale of the Shares as contemplated by this Agreement
gives rise to any rights for or relating to the registration of
any shares of Common Stock or any other securities of the
Company. The Underwriters will receive good and marketable title
to the Shares to be issued and delivered by the Company pursuant
to this Agreement, free and clear of all liens, encumbrances,
claims, security interests, restrictions, Stockholders agreements
and voting trusts whatsoever. The capital stock of the Company
and the Shares conform to the description thereof contained in
the Final Prospectus. Since September 1991, when such counsel
undertook representation of the Company, all offers and sales by
the Company of the Company's securities at all relevant times
were duly registered or exempt from the registration requirements
of the Securities Act and were duly registered or the subject of
an exemption from the registration requirements of applicable
state securities or Blue Sky laws.
(iv) No consent, approval, authorization or order
of any court or governmental agency or body or third party is
required for the performance of this Agreement by the Company or
the consummation by the Company of the transactions contemplated
hereby, except such as have been obtained under the Securities
Act and such as may be required by the NASD and under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the several Underwriters. The
performance of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby will not
conflict with or result in a breach or violation by the Company
of any of the terms or provisions of, or constitute a default by
the Company under, any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such
counsel to which the Company is a party or to which the Company
or its properties is subject and which is material to the
Company, the Certificate of Incorporation or bylaws of the
Company, any statute, or any judgment, decree, order, rule or
regulation known to such counsel of any court or governmental
agency or body applicable to the Company or its properties.
(v) The Company has full legal right, power and
authority to enter into this Agreement and to issue, sell and
deliver the Shares to be sold by it
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to the Underwriters as provided herein, and this Agreement has
been duly authorized, executed and delivered by the Company and
constitutes the valid and legally binding obligation of the
Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by general
equitable principles, bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer, fraudulent conveyance or other
laws affecting creditors' rights generally, and except as rights
to indemnity may be limited by federal or state securities laws
or the public policy underlying such laws.
(vi) Except as described in the Final Prospectus,
there is not pending, or to the best knowledge of such counsel,
threatened, any action, suit, proceeding, inquiry or
investigation, to which the Company or any of its subsidiaries is
a party, or to which the property of the Company or any of its
subsidiaries is subject, before or brought by any court or
governmental agency or body, which, if determined adversely to
the Company or any of its subsidiaries, could result in any
material adverse change in the business, financial position, net
worth or results of operations, or could materially adversely
affect the properties or assets, of the Company and its
subsidiaries, taken as a whole.
(vii) To the best knowledge of such counsel, no
default exists, and no event has occurred which with notice or
after the lapse of time to cure or both, would constitute a
default, in the due performance and observance of any term,
covenant or condition of any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument listed as
an exhibit to the Registration Statement, or of the Certificate
of Incorporation or bylaws of the Company.
(viii) The Registration Statement and all
post-effective amendments thereto have become effective under the
Securities Act, and, to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are threatened, pending or contemplated
by the Commission. All filings required by Rules 424, 430A and
434 of the Rules and Regulations have been made; the Registration
Statement, the Effective Prospectus and Final Prospectus, and any
amendments or supplements thereto (except for the financial
statements and schedules included therein as to which such
counsel need express no opinion), as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations; the descriptions in the Registration
Statement, the Effective Prospectus and the Final Prospectus of
statutes, regulations, legal and governmental proceedings, and
contracts and other documents are accurate in all material
respects and present fairly the information required to be
stated; and there are no pending or (to the best knowledge of
such counsel) threatened legal or governmental proceedings,
statutes or regulations required to be described in the Final
Prospectus which are not described as required or any contracts
or
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documents known to such counsel of a character required to be
described in the Registration Statement or the Final Prospectus
or to be filed as exhibits to the Registration Statement which
are not described and filed as required.
(ix) The Company is not, and will not be as a
result of the consummation of the transactions contemplated by
this Agreement, an "investment company" within the meaning of the
Investment Company Act of 1940.
(x) This Agreement and the Custody Agreement and
Power of Attorney have been duly authorized (in the case of
corporate or partnership Selling Stockholders), executed and
delivered by or on behalf of each of the Selling Stockholders and
constitute valid and binding agreements of such Selling
Stockholders in accordance with their terms, except as
enforceability may be limited by applicable equitable principles
or by bankruptcy, insolvency, moratorium, reorganization or
similar laws from time to time in effect affecting the
enforcement of creditors' rights, and except as rights to
indemnity may be limited by federal or state securities laws or
the public policy underlying such laws.
(xi) No consent, approval, authorization or order
of any regulatory, administrative or other governmental body is
required for the consummation of the transactions contemplated by
this Agreement in connection with the Shares to be sold by each
Selling Stockholder hereunder, except which have been duly
obtained and in full force and effect, 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 such Shares by the Underwriters, as to which such
counsel need express no opinion.
(xii) Each of the Selling Stockholders has the
full right, power and authority to sell, transfer and deliver
such Shares pursuant to this Agreement. To the best knowledge of
such counsel, upon the delivery of a payment for the Shares to be
sold by the Selling Stockholders pursuant to this Agreement as
herein contemplated, and assuming each Underwriter takes delivery
without knowledge of any adverse claims, such Underwriter will be
a bona fide purchaser with respect to such Shares within the
meaning of Article VIII of the UCC and will acquire all rights of
the Selling Stockholder in such Shares, free and clear of all
adverse claims.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company,
representatives of the Underwriters and their counsel at which the contents of
the Registration Statement, the Effective Prospectus and the Final Prospectus
and related matters were discussed, that nothing has come to the attention of
such counsel which leads them to believe that the
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Registration Statement, the Effective Prospectus and the Final Prospectus or
any amendment or supplement thereto contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (except that such
counsel need express no view as to financial statements, schedules and other
financial information included therein). In rendering such opinion, counsel
may rely as to matters of fact, to the extent counsel deems proper, on
certificates of responsible officers of the Company, the subsidiaries, the
Selling Stockholders and public officials.
(d) The Underwriters shall have received an opinion or
opinions, dated the Closing Date, of Xxxxxx & Xxxx, L.L.P., counsel for
the Underwriters, with respect to the Registration Statement and the
Final Prospectus, and such other related matters as the Underwriters may
require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(e) The Representatives shall have received from Xxxxx
Xxxxxxxx LLP, a letter dated the date hereof and, at the Closing Date, a
second letter dated the Closing Date (and, in the event of the
Underwriters' exercise of the over-allotment option referred to in
Section 3(b) hereof, a third letter dated and delivered on the Option
Closing Date), in form and substance satisfactory to the
Representatives, stating that they are independent public accountants
with respect to the Company and its consolidated subsidiaries within the
meaning of the Securities Act, the Exchange Act and the applicable Rules
and Regulations, that the answer to Item 10 of Form S-3 set forth in the
Registration Statement is correct insofar as it relates to them, and to
the effect that:
(i) In their opinion, the financial statements
audited by them and incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the Securities Act, the
Exchange Act and the published Rules and Regulations and are
presented in accordance with generally accepted accounting
principles;
(ii) The unaudited selected financial information
included in the Preliminary Prospectus and the Final Prospectus
under the captions "PROSPECTUS SUMMARY," "SELECTED CONSOLIDATED
FINANCIAL DATA" AND "SELECTED PRO FORMA CONDENSED CONSOLIDATED
OPERATING DATA" for each of the fiscal years ended December 31,
1993, 1994 and 1995, agrees with the corresponding amounts in the
audited consolidated financial statements incorporated by
reference in the Final Prospectus;
(iii) On the basis of a reading of the latest
available interim consolidated financial statements (unaudited)
of the Company and its consolidated subsidiaries, a reading of
the minute books of the Company and its consolidated
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subsidiaries, inquiries of officials of the Company and its
consolidated subsidiaries responsible for financial and
accounting matters and other specified procedures, nothing came
to their attention that caused them to believe that:
(A) The Company's unaudited consolidated
financial statements incorporated by reference in the
Registration Statement do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Act, the Exchange Act and
the published Rules and Regulations or are not presented
in accordance with generally accepted accounting
principles consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
of the Company incorporated by reference into the
Registration Statement;
(B) The amounts included in the
Preliminary Prospectus and the Final Prospectus under the
captions "PROSPECTUS SUMMARY," "SELECTED CONSOLIDATED
FINANCIAL DATA" AND "SELECTED PRO FORMA CONDENSED
CONSOLIDATED OPERATING DATA" for the nine months ended
September 30, 1996 do not agree with the corresponding
amounts in the unaudited financial statements of the
Company and its consolidated subsidiaries for such period;
(C) At a specified date not more than
three days prior to the date of delivery of such
respective letter, there was any change in the capital
stock, decline in stockholders' equity or increase in
long-term debt and capital lease obligations of the
Company, in each case as compared with amounts shown in
the latest balance sheets incorporated by reference in the
Final Prospectus, except in each case for changes,
decreases or increases which the Final Prospectus
discloses have occurred or may occur or which are
described in such letters; and
(D) For the period from the closing date
of the latest consolidated statements of earnings included
in the Effective Prospectus and the Final Prospectus to a
specified date not more than three days prior to the date
of delivery of such respective letter, there were any
decreases in net sales or net earnings in each case as
compared with the corresponding period of the preceding
year, except in each case for decreases which the Final
Prospectus discloses have occurred or may occur or which
are described in such letter.
(iv) They have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by you
which are derived from the general accounting records of the
Company or its consolidated subsidiaries, which appear in the
Effective Prospectus and the Final Prospectus, and have compared
and agreed such amounts, percentages and financial information
with the accounting records
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24
of the Company or its consolidated subsidiaries or to analyses
and schedules prepared by the Company or its consolidated
subsidiaries from their detailed accounting records.
(v) On the basis of a reading of the unaudited
pro forma financial statements incorporated by reference in the
Registration Statement and the unaudited pro forma condensed
consolidated operating data for the year ended December 31, 1995
and the nine months ended September 30, 1996 included in the
Preliminary Prospectus and the Final Prospectus, a reading of the
minutebooks of the Company, inquiries of officials of the Company
responsible for financial and accounting matters and other
specified procedures, they proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the unaudited pro forma condensed consolidated
operating data. In addition, nothing came to their attention
that caused them to believe that the unaudited pro forma
financial statements incorporated by reference in the
Registration Statement or the condensed consolidated operating
data included in the Preliminary Prospectus and the Final
Prospectus do not comply as to form in all material respects with
the applicable accounting requirement of Rule 11-02 of Regulation
S-X, and that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements.
In the event that the letters to be delivered referred to above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that the Underwriters shall have determined,
after discussions with officers of the Company responsible for financial and
accounting matters and with Xxxxx Xxxxxxxx LLP, that such changes, decreases or
increases as are set forth in such letters do not reflect a material adverse
change in the stockholders' equity or long-term debt of the Company as compared
with the amounts shown in the latest consolidated balance sheets of the Company
included in the Final Prospectus, or a material adverse change in net sales or
net earnings of the Company, in each case as compared with the corresponding
period of the prior year.
(f) The letters referred to in subparagraph (e) above shall
include a statement with respect to Maxpro to the effect that:
(i) The selected financial information included
in the Preliminary Prospectus and the Final Prospectus under the
captions "PROSPECTUS SUMMARY," SELECTED CONSOLIDATED FINANCIAL
DATA" AND "SELECTED PRO FORMA CONDENSED CONSOLIDATED OPERATING
DATA" was derived from the audited financial statements of Maxpro
for the years ended June 30, 1995 and 1996 and Maxpro's general
ledger;
(ii) The unaudited selected financial information
of Maxpro included in the Preliminary Prospectus and the Final
Prospectus under the caption "SELECTED PRO FORMA CONDENSED
CONSOLIDATED OPERATING DATA " for the fiscal year ended December
31, 1995, agrees with the
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corresponding amounts in Maxpro's audited financial statements
incorporated by reference in the Final Prospectus or previously
reported on by them;
(iii) They have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by you
which are derived from the general accounting records of Maxpro,
which appear in the Effective Prospectus and the Final
Prospectus, and have compared and agreed such amounts,
percentages and financial information with the accounting records
of Maxpro or to analyses and schedules prepared by Maxpro from
its detailed accounting records.
(g) At their discretion, the Representatives shall have received from
Xxxxx Xxxxxxxx, chartered accountants (Perth, Australia) and KPMG,
charter accountants (Perth, Australia), letters dated the date hereof
and, at the Closing Date, letters dated the Closing Date (and, in the
event of the Underwriters' exercise of the over- allotment option
referred to in Section 3(b) hereof, letters dated and delivered on the
Option Closing Date), in form and substance satisfactory to the
Representatives, containing statements and information of the type
ordinarily included in accountant's "comfort letters" to underwriters
with respect to the financial statements and certain financial and
statistical information regarding Maxpro contained in the Registration
Statement, for which comfort has not otherwise been obtained from Xxxxx
Xxxxxxxx LLP.
(h) There shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to you, signed by the
Chief Executive Officer and by the Chief Financial Officer of the
Company to the effect that:
(i) the representations and warranties of the
Company in Section 1 of this Agreement are true and correct, as
if made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceedings
for that purpose have been initiated or are pending, or to their
knowledge, threatened under the Securities Act;
(iii) they have carefully examined the
Registration Statement, the Effective Prospectus and the Final
Prospectus, and any amendments or supplements thereto, and such
documents do not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and
(iv) since the effective date of the Registration
Statement, there has occurred no event (other than with respect
to the information contained under
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the caption "Underwriting") required to be set forth in an
amendment or supplement to the Registration Statement, the
Effective Prospectus or the Final Prospectus which has not been
so set forth.
(i) The representations and warranties of each Selling
Stockholder in Section 2 of this Agreement shall be true and correct as
of the Closing Date and such Selling Stockholders shall deliver to the
Representatives a certificate to that effect, dated the Closing Date,
signed by such Selling Stockholder or his or its duly appointed
attorney-in-fact.
(j) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, and
except as stated therein, the Company has not sustained any material
loss or interference with its business or properties from fire, flood,
hurricane, earthquake, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any court or
governmental action, order or decree, or become a party to or the
subject of any litigation which is material to the Company, nor shall
there have been any material adverse change, or any development
involving a prospective material adverse change, in the business,
properties, key personnel, capitalization, net worth, results of
operations or condition (financial or other) of the Company, which loss,
interference, litigation or change, in your judgment shall render it
inadvisable to commence or continue the offering of the Shares at the
offering price to the public set forth on the cover page of the
Prospectus or to proceed with the delivery of the Shares.
(k) The Shares have been duly authorized for quotation on The
NASDAQ Stock Market's National Market, subject to notice of issuance.
All such opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory to the Representatives and their counsel. The
Company shall furnish to the Representatives such conformed copies of such
opinions, certificates, letters and documents in such quantities as the
Representatives shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for
the Option Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Shares, except that all references to
the "Closing Date" shall be deemed to refer to the Option Closing Date, if it
shall be a date other than the Closing Date.
8. Indemnification and Contribution.
(a) Each of the Company and the Selling Stockholders,
severally and not jointly, agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or
controlling person may become subject under the Securities Act or
otherwise, insofar as
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such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto,
or in any Blue Sky application or other written information furnished by
the Company filed in any state or other jurisdiction in order to qualify
any or all of the Shares under the securities laws thereof (a "Blue Sky
Application") or arise out of or are based upon the omission or alleged
omission to state in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus or any
amendment or supplement thereto or any Blue Sky Application a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter and each
such controlling person for any legal or other expenses reasonably
incurred by such Underwriter or such controlling person in connection
with investigating or defending any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the
Company and the Selling Stockholders will not be liable in any such case
to the extent that any such loss, claim, damage, or liability arises out
of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, the
Preliminary Prospectus, the Effective Prospectus or Final Prospectus or
such amendment or such supplement or any Blue Sky Application in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter specifically for use therein (it being
understood that the only information so provided by the Underwriters is
the information included in the last paragraph on the cover page, the
last two paragraphs on page two and in the first, third, fourth and
eighth paragraphs under the caption "Underwriting" in any Preliminary
Prospectus and the Final Prospectus and the Effective Prospectus); and
provided further, that the Company will not be liable in any case to the
extent that any such loss, claim, damage, or liability arises out of or
is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, the
Preliminary Prospectus, the Effective Prospectus or Final Prospectus or
any amendment or such supplement or any Blue Sky Application in reliance
upon and in conformity with written information furnished to the Company
by any Selling Stockholder specifically for use therein; and provided
further, that the Company and the Selling Stockholders will not be
liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission in the Registration
Statement, the Preliminary Prospectus, the Effective Prospectus or Final
Prospectus and if, such Underwriter previously having been furnished by
or on behalf of the Company with copies of such document as so amended
or supplemented, thereafter fails to deliver such document as so amended
or supplemented, prior to or concurrently with the sale of the Shares to
the person asserting such loss, claim, damage or liability who purchased
the Shares which are the subject thereof from such Underwriter, provided
that the Company delivered such documents, as amended or supplemented,
to the Underwriters on a timely basis to permit such delivery. In no
event, however, shall any Selling Stockholder be obligated to indemnify
the Underwriters under this Section 8(a) in an amount exceeding the
product of (i) the number of shares sold by such Selling Stockholder and
(ii) the price
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per share paid to such Selling Stockholder by the Underwriters pursuant
hereto. This indemnity agreement will be in addition to any liability
that the Company or the Selling Stockholders may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless each of the Selling Stockholders and the
Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Securities Act against any losses, claims,
damages or liabilities to which the Selling Stockholders or Company or
any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, or any Blue Sky Application, or arise
out of or are based upon the omission or the alleged omission to state
in the Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus or any amendment or supplement thereto or
any Blue Sky Application a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter specifically for use therein (it being
understood that the only information so provided is the information
included in the last paragraph on the cover page, the last two
paragraphs on page two and in the first, third, fourth and eighth
paragraphs under the caption "Underwriting" in any Preliminary
Prospectus and in the Effective Prospectus and the Final Prospectus);
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, including
governmental proceedings, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 8 notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party otherwise
than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may 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 to so assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section 8 for
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs
of investigation except that the indemnified party shall have the right
to employ separate counsel if, in its reasonable judgment, it is
advisable for the indemnified party and any other Underwriter
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to be represented by separate counsel, and in that event the fees and
expenses of separate counsel shall be paid by the indemnifying party.
The indemnifying party will not, without prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding (or related
cause of action or portion thereof) in respect of which indemnification may be
sought hereunder (whether or not the indemnified party is a party to such
claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of the indemnified party from all
liability arising out of such claim, action, suit or proceeding (or related
cause of action or portion thereof).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding part of this Section 8 is for any reason held to be
unavailable to the Underwriters, the Company, or the Selling
Stockholders or is insufficient to hold harmless an indemnified party,
then the Company and the Selling Stockholders shall contribute to the
damages paid by the Underwriters, and the Underwriters shall contribute
to the damages paid by the Company and the Selling Stockholders
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. In determining the amount of contribution
to which the respective parties are entitled, there shall be considered
the relative benefits received by each party from the offering of the
Shares (taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company, the Selling Stockholders and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even
if the Underwriters were treated as one entity for such purpose). No
Underwriter or person controlling such Underwriter shall be obligated to
make contribution hereunder which in the aggregate exceeds the
underwriting discount applicable to the Shares purchased by such
Underwriter under this Agreement, less the aggregate amount of any
damages which such Underwriter and its controlling persons have
otherwise been required to pay in respect of the same or any similar
claim. No Selling Stockholder shall be obligated to make contribution
hereunder which in the aggregate exceeds the product of (i) the number
of shares sold by such Selling Stockholder and (ii) the price per share
paid to such Selling Stockholder by the Underwriters pursuant hereto.
The Underwriters' obligations to contribute hereunder are several in
proportion to their respective underwriting obligations and not joint.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, shall
have the same rights to contribution as the Company.
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9. Default of Underwriters. If any Underwriter defaults in its
obligation to purchase Shares hereunder and if the total number of Shares which
such defaulting Underwriter agreed but failed to purchase is ten percent or
less of the total number of Shares to be sold hereunder, the non-defaulting
Underwriters shall be obligated severally to purchase (in the respective
proportions which the number of Shares set forth opposite the name of each
non-defaulting Underwriter in Schedule II hereto bears to the total number of
Shares set forth opposite the names of all the non-defaulting Underwriters),
the Shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter so defaults and the total number of Shares
with respect to which such default or defaults occur is more than ten percent
of the total number of Shares to be sold hereunder, and arrangements
satisfactory to the other Underwriters and the Company for the purchase of such
Shares by other persons (who may include the non-defaulting Underwriters) are
not made within 36 hours after such default, this Agreement, insofar as it
relates to the sale of the Shares, will terminate without liability on the part
of the non-defaulting Underwriters or the Company except for (i) the provisions
of Section 8 hereof, and (ii) the expenses to be paid or reimbursed by the
Company pursuant to Section 6. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. Default by the Selling Stockholders. If the Selling Stockholders
shall fail to sell and deliver the number of Firm Shares that the Selling
Stockholders are obligated to sell, the Representatives may, at their option,
by notice to the Company, either (a) require the Company to sell and deliver
such number of shares of Common Stock as to which the Selling Stockholders have
defaulted, or (b) elect to purchase the Firm Shares and the Option Shares that
the Company and the non-defaulting Selling Stockholders have agreed to sell
pursuant to this Agreement. In the event of a default under this Section that
does not result in the termination of this Agreement, either the
Representatives or the Company shall have the right to postpone the First
Closing Date or Option Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. No action taken pursuant
to this Section shall relieve the Company or the Selling Stockholder so
defaulting from liability, if any, in respect of such default.
11. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Selling
Stockholders and the Company, its officers and the Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Underwriter or any controlling person, and (ii) delivery of and
payment for the Shares. The respective agreements, covenants, indemnities and
other statements set forth in Section 6 and Section 8 hereof shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement.
12. Effective Date. This Agreement shall become effective at
whichever of the following times shall first occur: (i) at 11:30 A.M.,
Washington, D.C. time, on the next full
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business day following the date on which the Registration Statement becomes
effective or (ii) at such time after the Registration Statement has become
effective as the Representatives shall release the Firm Shares for sale to the
public; provided, however, that the provisions of Sections 6, 8, 10 and 11
hereof shall at all times be effective. For purposes of this Section 12, the
Firm Shares shall be deemed to have been so released upon the release by the
Representatives for publication, at any time after the Registration Statement
has become effective, of any newspaper advertisement relating to the Firm
Shares or upon the release by the Representatives of telegrams offering the
Firm Shares for sale to securities dealers, whichever may occur first.
13. Termination.
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Representatives at any time
before it becomes effective in accordance with Section 12 hereof.
(b) This Agreement may be terminated by the Representatives by
notice to the Company (i) at any time before it becomes effective in
accordance with Section 12 hereof; (ii) in the event that at or prior to
the First Closing Date the Company or any Selling Stockholder shall have
failed, refused or been unable to perform any agreement on the part of
the Company or such Selling Stockholder to be performed hereunder or any
other condition to the obligations of the Underwriters hereunder is not
fulfilled; (iii) if at or prior to the Closing Date trading in
securities on the New York Stock Exchange, the American Stock Exchange
or the over-the-counter market shall have been suspended or materially
limited or minimum or maximum prices shall have been established on
either of such Exchanges or such market, or a banking moratorium shall
have been declared by Federal or state authorities; (iv) if at or prior
to the Closing Date trading in securities of the Company shall have been
suspended; or (v) if there shall have been such a material change in
general economic, political or financial conditions or if the effect of
international conditions on the financial markets in the United States
shall be such as, in your reasonable judgment, makes it inadvisable to
commence or continue the offering of the Shares at the offering price to
the public set forth on the cover page of the Prospectus or to proceed
with the delivery of the Shares.
(c) Termination of this Agreement pursuant to this Section 13
shall be without liability of any party to any other party other than as
provided in Sections 6 and 8 hereof.
14. Notices. All communications hereunder shall be in writing and,
if sent to any of the Underwriters, shall be mailed or delivered or telegraphed
and confirmed in writing to the Representatives in care of X.X. Xxxxxxxx & Co.,
X.X. Xxxxxxxx Financial Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000, Attention: Xxxx Xxxxxxxxx, or if sent to the Company or the Selling
Stockholders shall be mailed, delivered or telegraphed and confirmed in writing
to the Company at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000,
Attention: Xxxxxx Xxxxxx.
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15. Miscellaneous. This Agreement shall inure to the benefit of and
be binding upon the several Underwriters, the Company, the Selling Stockholders
and their respective successors and legal representatives. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Company, the Selling
Stockholders and the several Underwriters and for the benefit of no other
person except that (i) the representations and warranties of the Company and
the Selling Stockholders contained in this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Securities Act, and (ii) the indemnities by the
Underwriters shall also be for the benefit of the directors of the Company,
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Securities Act. No purchaser of Shares from any Underwriter will be deemed
a successor because of such purchase. The validity and interpretation of this
Agreement shall be governed by the laws of the State of Tennessee. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. You hereby represent and warrant to the Company and the Selling
Stockholders that you have authority to act hereunder on behalf of the several
Underwriters, and any action hereunder taken by you will be binding upon all
the Underwriters.
If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
between the Company, each of the Selling Stockholders and each of the several
Underwriters.
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Very truly yours,
ULTRAK, INC.
By:
----------------------------------------
Title:
-------------------------------------
SELLING STOCKHOLDERS
By:
----------------------------------------
Attorney-in-Fact for each of the Selling
Stockholders listed in Schedule I hereto
Confirmed and accepted as of the
date first above written.
X.X. XXXXXXXX & CO.
XXXX XXXXXXXXX XXXXXXXX & CO.
For themselves and as Representatives
of the several Underwriters
X.X. XXXXXXXX & CO.
By:
---------------------------------------
Title:
------------------------------------
XXXX XXXXXXXXX XXXXXXXX & CO.
By:
---------------------------------------
Title:
------------------------------------
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SCHEDULE II
UNDERWRITERS
Number of Firm
Shares to Be
Underwriter Purchased
----------------------------------- ---------------
X.X. Xxxxxxxx & Co.
Xxxx Xxxxxxxxx Xxxxxxxx & Co.
TOTAL 2,600,000
===============
SCHEDULE II
35
SCHEDULE I
SELLING STOCKHOLDERS
Number of Firm
Name Shares to be Sold
--------------------------------- -----------------
Petrus Fund, L.P. 92,460
------
TOTAL 92,460
=================
SCHEDULE I
