ZEBRA TECHNOLOGIES CORPORATION
2,056,344 SHARES CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
August [___], 1997
Xxxxxxx Xxxxx & Company
The Xxxxxxxx-Xxxxxxxx Company, Inc.
Xxxxxxxxxx Securities
As Underwriters Named in
Schedule A
c/o Xxxxxxx Xxxxx & Company
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. Zebra Technologies Corporation, a
Delaware corporation (the "Company"), has an authorized capital stock consisting
of [10,000,000] shares of Preferred Stock, $.01 par value, of which [_________]
shares have been issued as of August [___], 1997, [35,000,000] shares of Class A
Common Stock, $.01 par value (the "Class A Common Stock"), of which
[___________] shares were outstanding as of August [___], 1997 and [35,000,000]
shares of Class B Common Stock, $.01 par value (the "Class B Common Stock"; the
Class B Common Stock and the Class A Common Stock are hereinafter collectively
referred to as the "Common Stock"), of which [__________] shares were
outstanding as of August [___], 1997. Certain stockholders of the Company
(collectively referred to as the "Selling Stockholders" and named in Schedule B)
propose to sell 2,056,344 shares of the Company's issued and outstanding Class B
Common Stock, which shares of Class B Common Stock, pursuant to their terms,
shall automatically be converted into an equal number of shares of Class A
Common Stock upon such sale, to you as the underwriters named in Schedule A
hereto as it may be amended by the Pricing Agreement hereinafter defined (the
"Underwriters"), who are acting severally and not jointly. Collectively, such
total of 2,056,344 shares of Class A Common Stock proposed to be sold by the
Selling Stockholders are hereinafter referred to as the "Firm Shares." In
addition, certain Selling Stockholders propose to grant to the Underwriters an
option to purchase up to 308,451 additional shares of Class A Common Stock (the
"Option Shares") as provided in Section 5 hereof. The Firm Shares and, to the
extent such option is exercised, the Option
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* Plus an option to acquire up to 308,451 additional shares from the
Selling Stockholders to cover overallotment.
Shares, are hereinafter collectively referred to as the "Shares."
You have advised the Company and the Selling Stockholders that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon as you deem advisable after the registration statement
hereinafter referred to becomes effective, if it has not yet become effective,
and the Pricing Agreement hereinafter defined has been executed and delivered.
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company, the Selling Stockholders and the Underwriters shall
enter into an agreement substantially in the form of Exhibit A hereto (the
"Pricing Agreement"). The Pricing Agreement may take the form of an exchange of
any standard form of written telecommunication between the Company, the Selling
Stockholders and the Underwriters and shall specify such applicable information
as is indicated in Exhibit A hereto. The offering of the Shares will be
governed by this Agreement, as supplemented by the Pricing Agreement. From and
after the date of the execution and delivery of the Pricing Agreement, this
Agreement shall be deemed to incorporate the Pricing Agreement.
The Company and each of the Selling Stockholders hereby confirm their
agreements with the Underwriters as follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-[________])
and a related preliminary prospectus with respect to the Shares have been
prepared and filed with the Securities and Exchange Commission (the
"Commission") by the Company in conformity with the requirements of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "1933 Act;" all references herein
to specific rules are rules promulgated under the 0000 Xxx); and the
Company has so prepared and has filed such amendments thereto, if any, and
such amended preliminary prospectuses as may have been required to the date
hereof and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. There have been or will
promptly be delivered to you three signed copies of such registration
statement and amendments, three copies of each exhibit filed therewith, and
conformed copies of such registration statement and amendments (but without
exhibits) and of the related preliminary prospectus or prospectuses and
final forms of prospectus for each of the Underwriters.
Such registration statement (as amended, if applicable) at the time it
becomes effective and the prospectus
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constituting a part thereof (including the information, if any, deemed to
be part thereof pursuant to Rule 430A(b) and/or Rule 434), as from time to
time amended or supplemented, are hereinafter referred to as the
"Registration Statement," and the "Prospectus," respectively, except that
if any revised prospectus shall be provided to the Underwriters by the
Company for use in connection with the offering of the Shares which differs
from the Prospectus on file at the Commission at the time the Registration
Statement became or becomes effective (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b)),
the term Prospectus shall refer to such revised prospectus from and after
the time it was provided to the Underwriters for such use. If the Company
elects to rely on Rule 434 of the 1933 Act, all references to "Prospectus"
shall be deemed to include, without limitation, the form of prospectus and
the term sheet, taken together, provided to the Underwriters by the Company
in accordance with Rule 434 of the 1933 Act (the "Rule 434 Prospectus").
Any registration statement (including any amendment or supplement thereto
or information which is deemed part thereof) filed by the Company under
Rule 462(b) (the "Rule 462(b) Registration Statement") shall be deemed to
be part of the "Registration Statement" as defined herein, and any
prospectus (including any amendment or supplement thereto or information
which is deemed part thereof) included in such registration statement shall
be deemed to be part of the "Prospectus," as defined herein, as
appropriate. The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder are hereinafter
collectively referred to as the "Exchange Act." Any reference herein to
any preliminary prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Form S-3 under the 1933 Act ("Incorporated Documents"), as of the date of
such preliminary prospectus or Prospectus, as the case may be. Any
document filed by the Company under the Exchange Act after the effective
date of the Registration Statement or the date of the Prospectus and
incorporated by reference in the Prospectus shall be deemed to be included
in that Registration Statement and the Prospectus as of the date of such
filing.
The Incorporated Documents, when filed with the Commission, conformed
or will conform in all material respects to the requirements of the
Exchange Act and none of such documents contained or will contain an untrue
statement of a material fact or omitted or will omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(b) The Commission has not issued any order preventing or suspending
the use of any preliminary prospectus, and each preliminary prospectus has
conformed in all material respects with the requirements of the 1933 Act
and, as of its date, has
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not included any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein not misleading; and
when the Registration Statement became or becomes effective, and at all
times subsequent thereto, up to the First Closing Date or the Second
Closing Date hereinafter defined, as the case may be, the Registration
Statement, including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A(b), if
applicable, and the Prospectus and any amendments or supplements thereto,
contained or will contain all statements that are required to be stated
therein in accordance with the 1933 Act and in all material respects
conformed or will in all material respects conform to the requirements of
the 1933 Act, and neither the Registration Statement nor the Prospectus,
nor any amendment or supplement thereto, included or will include any
untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company
makes no representation or warranty as to information contained in or
omitted from any preliminary prospectus, the Registration Statement, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter specifically for use in the preparation thereof.
(c) The Company and each of its subsidiaries has been duly
incorporated and are existing as corporations in good standing under the
laws of their respective places of incorporation, with corporate power and
authority to own their properties and conduct their business as described
in the Prospectus; the Company and each of its subsidiaries are duly
qualified to do business as foreign corporations under the corporation law
of, and are in good standing as such in, each jurisdiction in which they
own or lease properties, have an office, or in which business is conducted
and such qualification is required except in any such case where the
failure to so qualify or be in good standing would not have a material
adverse effect upon the Company as a whole; and no proceeding of which the
Company has knowledge has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or curtail,
such power and authority or qualification.
(d) Except as disclosed in the Registration Statement, the Company
owns directly 100 percent of the issued and outstanding capital stock of
each of its subsidiaries, free and clear of any claims, liens, encumbrances
or security interests and all of such capital stock has been duly
authorized and validly issued and is fully paid and nonassessable.
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(e) The issued and outstanding shares of capital stock of the Company
as set forth in the Prospectus have been duly authorized and validly
issued, are fully paid and nonassessable; and there is no commitment, plan
or arrangement to issue, and no outstanding option, warrant, or other right
calling for the issuance of, any share of capital stock of the Company or
any of its subsidiaries, or any security or other instrument which by its
terms is convertible into or exchangeable for capital stock of the Company
or any of its subsidiaries, except as described in the Prospectus. Except
as described in the Prospectus, there is outstanding no security or other
instrument which by its terms is convertible into or exchangeable for
capital stock of the Company or any of its subsidiaries.
(f) The making and performance by the Company of this Agreement and
the Pricing Agreement have been duly authorized by all necessary corporate
action and will not violate any provision of the Company's charter or
bylaws and will not result in the breach, or be in contravention, of any
provision of any agreement, franchise, license, indenture, mortgage, deed
of trust, or other instrument to which the Company or any of its
subsidiaries is a party or by which the Company, any of its subsidiaries or
the respective property of any of them may be bound or affected, or any
order, rule or regulation applicable to the Company or any of its
subsidiaries of any court or regulatory body, administrative agency or
other governmental body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties, or any order of any
court or governmental agency or authority entered in any proceeding to
which the Company or any of its subsidiaries was or is now a party or by
which it is bound. No consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of this Agreement or the
Pricing Agreement or the consummation of the transactions contemplated
herein or therein, except for compliance with the 1933 Act and blue sky
laws applicable to the public offering of the Shares by the several
Underwriters and clearance of such offering with the National Association
of Securities Dealers, Inc. (the "NASD"). This Agreement has been duly
executed and delivered by the Company.
(g) KPMG Peat Marwick, who have expressed their opinions with respect
to certain of the financial statements included or incorporated by
reference in the Registration Statement are independent accountants as
required by the 1933 Act.
(h) The consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement present fairly the
consolidated financial position of the Company as of the respective dates
of such financial statements, and the consolidated results of operations
and
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cash flows of the Company for the respective periods covered thereby, all
in conformity with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed in the
Prospectus. The financial information set forth in the Prospectus under
"Summary Financial Data" presents fairly on the basis stated in the
Prospectus, the information set forth therein; and the pro forma
information included in the Prospectus presents fairly the information
shown therein, has been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma information, has been properly
compiled on the pro forma basis described therein, and, in the opinion of
the Company, the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate under the circumstances.
(i) Neither the Company nor any of its subsidiaries is in violation
of its charter or in default under any consent decree, or in default with
respect to any material provision of any lease, loan agreement, franchise,
license, permit or other contract obligation to which it is a party; and
there does not exist any state of facts which constitutes an event of
default as defined in such documents or which, with notice or lapse of time
or both, would constitute such an event of default, in each case, except
for defaults which neither singly nor in the aggregate are material to the
Company and its subsidiaries taken as a whole.
(j) There are no material legal or governmental proceedings pending,
or to the Company's knowledge, threatened to which the Company or any of
its subsidiaries is or may be a party or of which material property owned
or leased by the Company or any of its subsidiaries is or may be the
subject, or related to environmental or discrimination matters which are
not disclosed in the Prospectus, or which question the validity of this
Agreement or the Pricing Agreement or any action taken or to be taken
pursuant hereto or thereto.
(k) There are no holders of securities of the Company having rights
to registration thereof or preemptive rights to purchase Common Stock
except as disclosed in the Prospectus.
(l) The Company and its subsidiaries have good and marketable title
to all the properties and assets reflected as owned in the financial
statements hereinabove described (or elsewhere in the Prospectus), subject
to no lien, mortgage, pledge, charge or encumbrance of any kind except
those, if any, reflected in such financial statements (or elsewhere in the
Prospectus) or which are not material to the Company and its subsidiaries
taken as a whole. Except for the approximately 154,300 square foot
expanded facility in Vernon Hills, Illinois which the Company expects to
lease from Unique Building Corporation (as described in the Prospectus),
the
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Company and its subsidiaries hold their respective leased properties which
are material to the Company and its subsidiaries taken as a whole under
valid and binding leases.
(m) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares.
(n) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as set forth
or contemplated by the Prospectus, the Company and its subsidiaries, taken
as a whole, have not incurred any material liabilities or obligations,
direct or contingent, nor entered into any material transactions not in the
ordinary course of business and there has not been any material adverse
change in their condition (financial or otherwise), business, assets,
operations or prospects, nor any change in their capital stock, short-term
debt or long-term debt.
(o) The Company agrees not to sell, contract to sell or otherwise
dispose of any Class A Common Stock or securities convertible into Class A
Common Stock (except Common Stock issued pursuant to currently outstanding
options, warrants or convertible securities) for a period of 90 days after
this Agreement becomes effective without the prior written consent of the
Underwriters.
(p) There is no material document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required.
(q) The Company or its subsidiaries own and possess all right, title
and interest in and to, or has duly licensed from third parties, all
trademarks, copyrights and other proprietary rights ("Trade Rights")
material to the business of the Company and its subsidiaries taken as a
whole and neither the Company nor any of its subsidiaries has granted any
lien or encumbrance on, or granted any right of license (other than in the
ordinary course of its business) with respect to, any such Trade Rights.
Neither the Company nor any of its subsidiaries has received any notice of
infringement, misappropriation or conflict from any third party as to such
material Trade Rights that has not been resolved or disposed of and neither
the Company nor any of its subsidiaries has infringed, misappropriated or
otherwise conflicted with material Trade Rights of any third parties, which
infringement, misappropriation or conflict would have a material adverse
effect upon the condition (financial or
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otherwise), business, assets, operations or prospects of the Company and
its subsidiaries taken as a whole.
(r) The conduct of the business of the Company and its subsidiaries
is in compliance in all respects with applicable federal, state, local and
foreign laws and regulations, except where the failure to be in compliance
would not have a material adverse effect upon the condition (financial or
otherwise), business, assets, operations or prospects of the Company and
its subsidiaries taken as a whole.
(s) The Company and its subsidiaries have filed all necessary federal
and state income and franchise tax returns and have paid all taxes shown as
due thereon, and there is no tax deficiency that has been, or to the
knowledge of the Company might be, asserted against the Company or any of
its subsidiaries or any of their respective properties or assets that would
or could be expected to adversely affect the financial condition, assets,
operations or prospects of the Company and its subsidiaries taken as a
whole.
(t) The Shares have been authorized for trading over-the-counter on
the Nasdaq National Market System.
(u) The Company is not, and does not intend to conduct its business
in a manner in which it would become, an "investment company" as defined in
Section 3(a) of the Investment Company Act of 1940, as amended.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SELLING STOCKHOLDERS.
(a) Each Selling Stockholder severally represents and warrants to,
and agrees with, the Company and the Underwriters that:
(i) Such Selling Stockholder has, and on the First Closing Date
or the Second Closing Date hereinafter defined, as the case may be,
will have, valid marketable title to the Shares proposed to be sold by
such Selling Stockholder hereunder on such date and full right, power
and authority to enter into this Agreement and the Pricing Agreement
and to sell, assign, transfer and deliver such Shares hereunder, free
and clear of all voting trust arrangements, liens, encumbrances,
equities, claims and community property rights; and upon delivery of
and payment for such Shares hereunder, the Underwriters will acquire
valid marketable title thereto, free and clear of all voting trust
arrangements, liens, encumbrances, equities, claims and community
property rights.
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(ii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might be
reasonably expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(iii) Such Selling Stockholder, other than the trusts named in
Section 3(a)(iv) below, has executed and delivered a Power of Attorney
(the "Power of Attorney") among the Selling Stockholder, [____________
and ___________] (the "Agents"), naming the Agents as such Selling
Stockholder's attorneys-in-fact (and, by the execution by any Agent of
this Agreement, such Agent hereby represents and warrants that he has
been duly appointed as attorney-in-fact by the Selling Stockholders
pursuant to the Power of Attorney) for the purpose of entering into
and carrying out this Agreement and the Pricing Agreement, and the
Power of Attorney has been duly executed by such Selling Stockholder
and a copy thereof has been delivered to you.
(iv) Each of The Xxxx Xxxxx Income Trust and The Xxxxxxx Xxxxx
Income Trust (together the "Trusts") has executed and delivered a
Power of Attorney (the "Trust Power of Attorney") among the Trusts,
[________ and ________] (the "Trust Agents"), naming the Trust Agents
as each of the Trust's attorneys-in-fact (and, by the execution by any
Trust Agent of this Agreement, such Trust Agent hereby represents and
warrants that he has been duly appointed as attorney-in-fact by the
Trusts pursuant to the Trust Power of Attorney) for the purpose of
entering into and carrying out this Agreement and the Pricing
Agreement, and the Trust Power of Attorney has been duly executed by
each Trust and a copy thereof has been delivered to you.
(v) Such Selling Stockholder further represents, warrants and
agrees that such Selling Stockholder has deposited in custody, under a
Custody Agreement (the "Custody Agreement") with [__________], as
custodian (the "Custodian"), certificates in negotiable form for the
Shares to be sold hereunder by such Selling Stockholder, for the
purpose of further delivery pursuant to this Agreement. Such Selling
Stockholder agrees that the Shares to be sold by such Selling
Stockholder on deposit with the Custodian are subject to the interests
of the Company, the Underwriters and the other Selling Stockholders,
that the arrangements made for such custody, and the appointment of
the Agents pursuant to the Power of Attorney and the Trust Agents
pursuant to the Trust Power of Attorney, as the case may be, are to
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that extent irrevocable, and that the obligations of such Selling
Stockholder hereunder and under the Power of Attorney and the Trust
Power of Attorney, as the case may be, and the Custody Agreement shall
not be terminated except as provided in this Agreement, the Power of
Attorney, the Trust Power of Attorney or the Custody Agreement by any
act of such Selling Stockholder, by operation of law, whether, in the
case of an individual Selling Stockholder, by the death or incapacity
of such Selling Stockholder or, in the case of a trust or estate, by
the death of the trustee or trustees or the executor or executors or
the termination of such trust or estate, or, in the case of a
partnership or corporation, by the dissolution, winding-up or other
event affecting the legal life of such entity, or by the occurrence of
any other event. If any individual Selling Stockholder, trustee or
executor should die or become incapacitated, or any such trust,
estate, partnership or corporation should be terminated, or if any
other event should occur before the delivery of the Shares hereunder,
the documents evidencing Shares then on deposit with the Custodian
shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death, incapacity, termination
or other event had not occurred, regardless of whether or not the
Custodian shall have received notice thereof. Each Agent has been
authorized by such Selling Stockholder to execute and deliver this
Agreement and the Pricing Agreement and the Custodian has been
authorized to receive and acknowledge receipt of the proceeds of sale
of the Shares to be sold by such Selling Stockholder against delivery
thereof and otherwise act on behalf of such Selling Stockholder. The
Custody Agreement has been duly executed by such Selling Stockholder
and a copy thereof has been delivered to you.
(vi) Each preliminary prospectus, insofar as it has related to
such Selling Stockholder and, to the knowledge of such Selling
Stockholder in all other respects, as of its date, has conformed in
all material respects with the requirements of the 1933 Act and, as of
its date, has not included any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein not misleading; and when the Registration Statement becomes
effective, and at all times subsequent thereto, up to the First
Closing Date or the Second Closing Date hereinafter defined, as the
case may be, (1) such parts of the Registration Statement and the
Prospectus and any amendments or supplements thereto as relate to such
Selling Stockholder, and the Registration Statement and the Prospectus
and any amendments or supplements thereto, to the knowledge of such
Selling Stockholder in all other respects, contained
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or will contain all statements that are required to be stated therein
in accordance with the 1933 Act and in all material respects conformed
or will in all material respects conform to the requirements of the
1933 Act, and (2) neither the Registration Statement nor the
Prospectus, nor any amendment or supplement thereto, as it relates to
such Selling Stockholder, and, to the knowledge of such Selling
Stockholder in all other respects, included or will include any untrue
statement of a material fact or omitted or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that neither clause (1)
nor (2) shall have any effect if information has been given by such
Selling Stockholder to the Company and the Underwriters in writing
which would eliminate or remedy any such untrue statement or omission.
(vii) Such Selling Stockholder agrees with the Company and
the Underwriters not to sell, contract to sell or otherwise dispose of
any Common Stock for a period of 90 days after this Agreement becomes
effective without the prior written consent of the Underwriters.
(b) Neither Xxxxxx X. Xxxxxx nor Xxxxxxx Xxxxx has reason to believe
that the representations and warranties of the Company set forth in Section
2 of this Agreement are not true and correct in all material respects.
In order to document the Underwriters' compliance with the reporting and
withholding provisions of the Code with respect to the transactions herein
contemplated, each of the Selling Stockholders agrees to deliver to you prior to
or on the First Closing Date, as hereinafter defined, a properly completed and
executed United States Treasury Department Form W-8 or W-9 (or other applicable
form of statement specified by Treasury Department regulations in lieu thereof).
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS.
The Underwriters represent and warrant to the Company and the Selling
Stockholders that the information set forth (a) on the cover page of the
Prospectus with respect to price, underwriting discount and terms of the
offering and (b) under "Underwriting" in the Prospectus was furnished to the
Company by and on behalf of the Underwriters for use in connection with the
preparation of the Registration Statement and is correct and complete in all
material respects.
SECTION 5. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Selling Stockholders, severally
and not jointly, agree
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to sell to the Underwriters named in Schedule A hereto, and the Underwriters
agree, severally and not jointly, to purchase from the Selling Stockholders the
respective number of Firm Shares set forth opposite the names of the Selling
Stockholders in Schedule B hereto at the price per share set forth in the
Pricing Agreement. The obligation of each Underwriter to each Selling
Stockholder shall be to purchase from such Selling Stockholder the number of
full shares which (as nearly as practicable, as determined by you) bears to that
number of Firm Shares set forth opposite the name of such Selling Stockholder in
Schedule B hereto, the same proportion as the number of Shares set forth
opposite the name of such Underwriter in Schedule A hereto bears to the total
number of Firm Shares to be purchased by all Underwriters under this Agreement.
The public offering price and the purchase price shall be set forth in the
Pricing Agreement.
At 9:00 A.M., Chicago time, on the fourth business day, if permitted
under Rule 15c6-1 under the Exchange Act (or the third business day if required
under Rule 15c6-1 under the Exchange Act or unless postponed in accordance with
the provisions of Section 12), following the date the Registration Statement
becomes effective (or, if the Company has elected to rely upon Rule 430A, the
fourth business day, if permitted under Rule 15c6-1 under the Exchange Act (or
the third business day if required under Rule 15c6-1 under the Exchange Act)
after execution of the Pricing Agreement), or such other time not later than ten
business days after such date as shall be agreed upon by you, the Company and
the Custodian, the Selling Stockholders will deliver to you at the offices of
Xxxxxx Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, or through the
facilities of The Depository Trust Company for the accounts of the several
Underwriters, certificates representing the Firm Shares to be sold by them,
against payment of the purchase price therefor by Federal or other funds
immediately available to an account or accounts designated by the Selling
Stockholders. Such time of delivery and payment is herein referred to as the
"First Closing Date." The certificates for the Firm Shares so to be delivered
will be in such denominations and registered in such names as you request by
notice to the Custodian prior to 10:00 A.M., Chicago time, on the second full
business day preceding the First Closing Date, and will be made available at the
Company's expense for checking and packaging by the Underwriters at 10:00 A.M.,
Chicago time, on the first full business day preceding the First Closing Date.
Payment for the Firm Shares so to be delivered shall be made at the time and in
the manner described above at the offices of Xxxxxx Xxxxxx & Xxxxx.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Selling Stockholders hereby grant an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of
[___________] Option Shares, at the same purchase price per share to be paid for
the Firm Shares, for use solely in covering any overallotments made
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by the Underwriters in the sale and distribution of the Firm Shares. The option
granted hereunder may be exercised at any time (but not more than once) within
30 days after the date of this Agreement upon notice by you to the Company and
the Agents setting forth the aggregate number of Option Shares as to which the
Underwriters are exercising the option, the names and denominations in which the
certificates for such shares are to be registered and the time and place at
which such certificates will be delivered. Such time of delivery (which may not
be earlier than the First Closing Date), being herein referred to as the "Second
Closing Date," shall be determined by you, but if at any time other than the
First Closing Date, shall not be earlier than three nor later than 10 full
business days after delivery of such notice of exercise. The maximum number of
Option Shares to be purchased from each such Selling Stockholder is set forth in
Schedule B hereto. If less than the maximum number of Option Shares are to be
purchased hereunder each such Selling Stockholder agrees to sell the number of
Option Shares purchased by the Underwriters pursuant to this paragraph times a
fraction the numerator of which is the maximum number of Option Shares to be
purchased from such Selling Stockholder as set forth on Schedule B hereto and
the denominator of which is the maximum number of Option Shares to be purchased
from all Selling Stockholders as set forth on Schedule B hereto (subject to such
adjustments to eliminate any fractional share purchases as you in your absolute
discretion may make). The number of Option Shares to be purchased by each
Underwriter shall be determined by multiplying the number of Option Shares to be
sold by the Selling Stockholders pursuant to such notice of exercise by a
fraction, the numerator of which is the number of Firm Shares to be purchased by
such Underwriter as set forth opposite its name in Schedule A and the
denominator of which is the total number of Firm Shares (subject to such
adjustments to eliminate any fractional share purchases as you in your absolute
discretion may make). Certificates for the Option Shares will be made available
at the Company's expense for checking and packaging at 10:00 A.M., Chicago time,
on the first full business day preceding the Second Closing Date. The manner of
payment for and delivery of the Option Shares shall be the same as for the Firm
Shares as specified in the preceding paragraph.
You have advised the Selling Stockholders that each Underwriter has
authorized you to accept delivery of its Shares, to make payment and to give
receipt therefore. Each of you individually may make payment for any Shares to
be purchased by any Underwriter whose funds shall not have been received by you
by the First Closing Date or the Second Closing Date, as the case may be, for
the account of such Underwriter, but any such payment shall not relieve such
Underwriter from any obligation hereunder.
SECTION 6. COVENANTS OF THE COMPANY. The Company covenants and
agrees that:
(a) The Company will advise you and the Selling
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Stockholders promptly of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, or of any notification of
the suspension of qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceedings for that purpose, and
will also advise you and the Selling Stockholders promptly of any request
of the Commission for amendment or supplement of the Registration
Statement, of any preliminary prospectus or of the Prospectus, or for
additional information, and will not file any amendment or supplement to
the Registration Statement, to any preliminary prospectus or to the
Prospectus of which you and the Selling Stockholders have not been
furnished with a copy prior to such filing or to which you reasonably
object.
(b) The Company will give you and the Selling Stockholders notice of
its intention to file or prepare any amendment to the Registration
Statement (including any post-effective amendment) or any Rule 462(b)
Registration Statement or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Shares which differs
from the prospectus on file at the Commission at the time the Registration
Statement became or becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) and any term
sheet as contemplated by Rule 434) and will furnish you and the Selling
Stockholders with copies of any such amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be,
and will not file any such amendment or supplement or use any such
prospectus to which you or counsel for the Underwriters shall reasonably
object in writing.
(c) If the Company elects to rely on Rule 434 of the 1933 Act, the
Company will prepare a term sheet that complies with the requirements of
Rule 434. If the Company elects not to rely on Rule 434, the Company will
provide the Underwriters with copies of the form of prospectus, in such
numbers as the Underwriters may reasonably request, and file with the
Commission such prospectus in accordance with Rule 424(b) of the 1933 Act
by the close of business in New York City on the second business day
immediately succeeding the date of the Pricing Agreement. If the Company
elects to rely on Rule 434, the Company will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such numbers as the
Underwriters may reasonably request, by the close of business in New York
City on the business day immediately succeeding the date of the Pricing
Agreement.
(d) If at any time when a prospectus relating to the Shares is
required to be delivered under the 1933 Act any
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event occurs as a result of which the Prospectus, including any amendments
or supplements, would include an untrue statement of a material fact, or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus, including any amendments or supplements thereto and
including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Shares which differs
from the prospectus on file with the Commission at the time of
effectiveness of the Registration Statement, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) to comply with
the 1933 Act, the Company promptly will advise you thereof and will
promptly prepare and file, if required pursuant to Rule 424(b), with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance; and, in case
any Underwriter is required to deliver a prospectus nine months or more
after the effective date of the Registration Statement, the Company upon
request, but at the expense of such Underwriter, will prepare promptly such
prospectus or prospectuses as may be necessary to permit compliance with
the requirements of Section 10(a)(3) of the 1933 Act.
(e) Neither the Company nor any of its subsidiaries will, prior to
the earlier of the Second Closing Date or termination or expiration of the
related option, incur any liability or obligation, direct or contingent, or
enter into any material transaction, other than in the ordinary course of
business, except as contemplated by the Prospectus.
(f) Neither the Company nor any of its subsidiaries will acquire any
capital stock of the Company prior to the earlier of the Second Closing
Date or termination or expiration of the option related to the Additional
Shares nor will the Company declare or pay any dividend or make any other
distribution upon the Common Stock payable to stockholders of record on a
date prior to the earlier of the Second Closing Date or termination or
expiration of the option related to the Additional Shares, except in either
case as contemplated by the Prospectus.
(g) As soon as practicable, but in any event not later than November
15, 1998 the Company will make generally available to its security holders
and the Underwriters an earnings statement (which need not be audited)
covering a period of at least 12 months beginning after the effective date
of the Registration Statement, which will satisfy the provisions of the
last paragraph of Section 11(a) of the 1933 Act and Rule 158 under the 1933
Act.
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(h) During such period as a prospectus is required by law to be
delivered in connection with offers and sales of the Shares by an
Underwriter or dealer, the Company will furnish to the Underwriters and
counsel for the Underwriters, at its expense, subject to the provisions of
subsection (d) hereof, signed copies of the Registration Statement
(including exhibits thereto), and to each Underwriter copies of the
Registration Statement (without exhibits thereto) and the Prospectus, each
preliminary prospectus, the Incorporated Documents and all amendments and
supplements to any such documents in each case as soon as available and in
such quantities as you may reasonably request, for the purposes
contemplated by the 1933 Act.
(i) The Company will cooperate with the Underwriters in qualifying or
registering the Shares for sale under the blue sky laws of such
jurisdictions as you designate, and will continue such qualifications in
effect so long as reasonably required for the distribution of the Shares.
The Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any such jurisdiction where
it is not currently qualified or where it would be subject to taxation as a
foreign corporation.
(j) During the period of five years hereafter, the Company will
furnish you and each of the other Underwriters with a copy (i) as soon as
practicable after the filing thereof, of each report filed by the Company
with the Commission; and (ii) as soon as available, of each report of the
Company mailed to its stockholders.
(k) If, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule
430A and/or Rule 434, then immediately following the execution and delivery
of the Pricing Agreement, the Company will prepare, and file or transmit
for filing with the Commission in accordance with such Rule 430A, Rule
424(b) and/or Rule 434, copies of an amended prospectus or Term Sheet, or,
if required by such Rule 430A and/or Rule 434, a post-effective amendment
to the Registration Statement (including an amended prospectus), containing
all information so omitted. If required, the Company will prepare and
file, or transmit for filing, a Rule 462(b) Registration Statement not
later than the date of the execution of the Pricing Agreement. If a Rule
462(b) Registration Statement is filed, the Company shall make payment of,
or arrange for payment of, the additional registration fee owing to the
Commission required by Rule 111.
(l) The Company will use its best efforts to maintain the designation
of the Shares to be sold hereunder on the Nasdaq National Market System,
unless the Company's board of directors determines otherwise. The Company
will pay the fee
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of the NASD in connection with the review of the offering.
(m) The Company will promptly deliver to the Underwriters copies of
all correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Shares under the Act.
(n) Prior to the First Closing Date, the Company will issue no press
release or other communication directly or indirectly and hold no press
conference with respect to the Company or any of its subsidiaries or with
respect to the financial condition, results of operations, business,
properties, assets or liabilities of any of them, or the offering of the
Shares, without your prior written consent, which consent shall not be
unreasonably withheld.
SECTION 7. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, the Company and the Selling Stockholders
agree to pay (i) all costs, fees and expenses (other than legal fees and
disbursements of counsel for the Underwriters and the expenses incurred by the
Underwriters) incurred in connection with the performance of the Company's
obligations hereunder, including without limiting the generality of the
foregoing, all fees and expenses of legal counsel for the Company and of the
Company's independent accountants, all costs and expenses incurred in connection
with the preparation, printing, filing and distribution of the Registration
Statement, each preliminary prospectus and the Prospectus (including all
Incorporated Documents, exhibits and financial statements) and all amendments
and supplements provided for herein, this Agreement, the Pricing Agreement and
the Blue Sky Memorandum, (ii) all costs, fees and expenses (including legal fees
and disbursements of counsel for the Underwriters not to exceed $5,000) incurred
by the Underwriters in connection with qualifying all or any part of the Shares
for offer and sale under blue sky laws, including the preparation of a blue sky
memorandum relating to the Shares and clearance of such offering with the NASD;
and (iii) all fees and expenses of the Company's transfer agent, printing of the
certificates for the Shares and all transfer taxes, if any, with respect to the
sale and delivery of the Shares to the several Underwriters.
The provisions of this Section shall not affect any agreement which
the Company and the Selling Stockholders may make for the allocation or sharing
of such expenses and costs.
SECTION 8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the First Closing Date and the Option Shares on the Second Closing Date shall
be subject to the accuracy of the representations and warranties on the part of
-17-
the Company and the Selling Stockholders herein set forth as of the date hereof
and as of the First Closing Date or the Second Closing Date, as the case may be,
to the accuracy of the statements of officers of the Company made pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement shall have become effective either
prior to the execution of this Agreement or not later than 1:00 P.M.,
Chicago time, on the first full business day after the date of this
Agreement, or such later time as shall have been consented to by you but in
no event later than 1:00 P.M., Chicago time, on the third full business day
following the date hereof; and prior to the First Closing Date or the
Second Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be pending
or, to the knowledge of the Company, the Selling Stockholders or you, shall
be contemplated by the Commission. If the Company has elected to rely upon
Rule 430A and/or Rule 434, the information concerning the public offering
price of the Shares and price-related information shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) within the
prescribed period and the Company will provide evidence satisfactory to the
Underwriters of such timely filing (or a post-effective amendment providing
such information shall have been filed and declared effective in accordance
with the requirements of Rules 430A and 424(b)). If a Rule 462(b)
Registration Statement is required, such Registration Statement shall have
been transmitted to the Commission for filing and become effective within
the prescribed time period and, prior to the First Closing Date, the
Company shall have provided evidence of such filing and effectiveness in
accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the blue sky
laws of such states as shall have been specified by the Underwriters.
(c) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Shares hereunder, the validity and form of
the certificates representing the Shares, the execution and delivery of
this Agreement and the Pricing Agreement, and all corporate proceedings and
other legal matters incident thereto, and the form of the Registration
Statement and the Prospectus (except financial statements) shall have been
approved by counsel for the Underwriters exercising reasonable judgment.
(d) You shall not have advised the Company that the Registration
Statement or the Prospectus or any amendment or
-18-
supplement thereto, contains an untrue statement of fact, which, in the
opinion of counsel for the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required to
be stated therein or necessary to make the statements therein not
misleading.
(e) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company or any of its subsidiaries, whether or not arising in the
ordinary course of business, which, in the judgment of the Underwriters,
makes it impractical or inadvisable to proceed with the public offering or
purchase of the Shares as contemplated hereby.
(f) There shall have been furnished to you, on the First Closing Date
or the Second Closing Date, as the case may be, except as otherwise
expressly provided below:
(i) An opinion of Xxxxxx Xxxxxx & Xxxxx, counsel for the Company
and for the Selling Stockholders, addressed to the Underwriters and
dated the First Closing Date or the Second Closing Date, as the case
may be, to the effect that:
(1) the Company has been duly incorporated and is existing
as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the
Company has been duly qualified to do business as a foreign
corporation under the corporation law of, and is in good standing
as such in Illinois;
(2) an opinion to the same general effect as clause (1) of
this subparagraph (i) in respect of each of Company's
subsidiaries;
(3) all of the issued and outstanding capital stock of each
of the Company's subsidiaries has been duly authorized, validly
issued and is fully paid and nonassessable, and, except as
disclosed in the Registration Statement, the Company is the sole
registered owner of 100 percent of the outstanding capital stock
of each of its subsidiaries, and such counsel knows, with respect
to such capital stock, of (i) no claims, liens, encumbrances or
security interests and (ii) no outstanding rights, subscriptions,
warrants, calls, preemptive rights, options or other agreements
of any kind;
-19-
(4) the issued and outstanding capital stock of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable and free of preemptive rights;
(5) the Shares to be sold hereunder have been duly and
validly authorized and qualified for trading over-the-counter on
the Nasdaq National Market System, subject to notice of listing
of additional shares;
(6) the Registration Statement has become effective under
the 1933 Act, and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933 Act, and
the Registration Statement (including the information deemed to
be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) and/or Rule 434, if
applicable), the Prospectus and each amendment or supplement
thereto (except for the financial statements and other
statistical or financial data included therein as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the 1933 Act.
In addition such counsel shall state that they have no
reason to believe that either the Registration Statement
(including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A(b)
and/or Rule 434, if applicable) or the Prospectus, or the
Registration Statement or the Prospectus as amended or
supplemented (except as aforesaid), as of their respective
effective or issue dates, contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus as amended or supplemented, if
applicable, as of the First Closing Date or the Second Closing
Date, as the case may be, contained any untrue statement of a
material fact or omitted to state any material fact necessary to
make the statements therein not misleading in light of the
circumstances under which they were made; and such counsel does
not know of any legal or governmental proceedings pending or
threatened required to be described in the Prospectus which are
not described as required, nor of any contracts or documents of a
character
-20-
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement which are not described or filed, as required;
(7) this Agreement and the Pricing Agreement and the
performance of the Company's obligations hereunder have been duly
authorized by all necessary corporate action and this Agreement
and the Pricing Agreement have been duly executed and delivered
by and on behalf of the Company, and are legal, valid and binding
agreements of the Company, except insofar as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforceability of
creditors' rights generally and subject to general principles of
equity and except insofar as indemnification and contribution
provisions may be limited by applicable law; and, to such
counsel's knowledge, no approval, order, authorization or consent
of any public board, agency, or instrumentality of the United
States or of any state or other jurisdiction is necessary in
connection with the consummation by the Company of any
transactions contemplated by this Agreement (other than the 1933
Act, applicable blue sky laws and the rules of the NASD);
(8) to such counsel's knowledge, neither the Company nor
any of its subsidiaries is in breach of, or in default under (nor
has any event occurred which with notice, lapse of time, or both
would constitute a breach of, or default under), any indenture,
mortgage, deed of trust, credit agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which any of them or their respective properties may
be bound or affected where such breach or default could have a
material adverse effect on the condition (financial or
otherwise), business, assets, operations or prospects of the
Company and its subsidiaries, taken as a whole;
(9) the execution and performance of this Agreement will
not contravene any of the provisions of, or result in a default
under, any agreement, franchise, license, indenture, mortgage,
deed of trust, or other instrument known to such counsel, of the
Company or any of its subsidiaries or by which the property of
any of them is bound and which contravention or default would be
material to the Company and its subsidiaries taken as a whole; or
violate any of the provisions of the charter or
-21-
bylaws of the Company or any of its subsidiaries or, so far as is
known to such counsel, violate any order, rule or regulation of
any regulatory or governmental body having jurisdiction over the
Company or any of its subsidiaries;
(10) all documents incorporated by reference in the
Prospectus, when they were filed with the Commission, complied as
to form in all material respects with the requirements of the
Exchange Act; and such counsel has no reason to believe that any
of such documents, when they were so filed, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such
documents were so filed, not misleading; such counsel need
express no opinion as to the financial statements or other
financial or statistical data contained in any such document;
(11) except as disclosed in the Prospectus, to such
counsel's knowledge, no person has the right, contractual or
otherwise, to cause the Company to register pursuant to the Act,
any shares of capital stock of the Company, upon the issue and
sale of the Shares to be sold by the Selling Stockholders to the
Underwriters pursuant to this Agreement;
(12) neither the Company nor any of its subsidiaries is an
"investment company" or a person "controlled by" an "investment
company" within the meaning of the Investment Company Act;
(13) with respect to each Selling Stockholder, this
Agreement and the Pricing Agreement have been duly authorized,
executed and delivered by or on behalf of each such Selling
Stockholder; the Agents and the Custodian for each such Selling
Stockholder have been duly and validly authorized to carry out
all transactions contemplated herein on behalf of each such
Selling Stockholder; and the performance of this Agreement and
the Pricing Agreement and the consummation of the transactions
herein contemplated by such Selling Stockholders will not result
in a breach or violation of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of
trust, note agreement or other agreement or instrument known to
such counsel to which any of such Selling Stockholders is a party
or by which any are bound or to which any of the property of such
Selling Stockholders is subject, or any order known to such
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counsel of any court or governmental agency or body having
jurisdiction over any of such Selling Stockholders or any of
their properties; and to such counsel's knowledge, no consent,
approval, authorization or order of any court or governmental
agency or body is required for the consummation of the
transactions contemplated by this Agreement and the Pricing
Agreement in connection with the sale of Shares to be sold by
such Selling Stockholders hereunder, except such as have been
obtained under the 1933 Act and such as may be required under
applicable blue sky laws in connection with the purchase and
distribution of such Shares by the Underwriters and the clearance
of such offering with the NASD;
(14) each Selling Stockholder has full right, power and
authority to enter into this Agreement and the Pricing Agreement
and is the sole record holder of the Shares to be sold by such
Selling Stockholder under this Agreement and, to such counsel's
knowledge, possesses full right, power and authority to sell,
assign, transfer and deliver such Shares hereunder. Immediately
prior to the consummation of the transactions described in this
Agreement, each Selling Stockholder was the sole registered owner
of the Shares to be sold hereunder by such Selling Stockholder.
Upon registration of such Shares in the Underwriters' name(s) in
the stock records of the Company and assuming the Underwriters
have purchased such Shares in good faith and without notice of
any adverse claim, the Underwriters will have acquired all of
such Selling Stockholder's rights in such Shares free of any
adverse claim, any lien in favor of the Company and any
restrictions on transfer imposed by the Company. Such counsel is
not aware of any such adverse claim, lien in favor of the Company
or restrictions on transfer imposed by the Company; and
(15) this Agreement and the Pricing Agreement are legal,
valid and binding agreements of each Selling Stockholder except
insofar as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforceability of creditors' rights generally
and subject to general principles of equity and except insofar as
indemnification and contribution provisions may be limited by
applicable law.
In rendering such opinion, such counsel may state
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that they are relying upon the certificate of Xxxxxx Trust and Savings
Bank, the transfer agent for the Common Stock, as to the number of
shares of Common Stock at any time or times outstanding, and that
insofar as their opinion under clause (6) above relates to the
accuracy and completeness of the Prospectus and Registration
Statement, it is based upon a general review with the Company's
representatives and independent accountants of the information
contained therein, without independent verification by such counsel of
the accuracy or completeness of such information. Such counsel may
also rely upon the opinions of other competent counsel and, as to
factual matters, on certificates of the Selling Stockholders and of
officers of the Company and of state officials, in which case their
opinion is to state that they are so doing and copies of said opinions
or certificates are to be attached to the opinion unless said opinions
or certificates (or, in the case of certificates, the information
therein) have been furnished to the Underwriters in other form.
(ii) Such opinion or opinions of Winston & Xxxxxx, counsel for
the Underwriters, dated the First Closing Date or the Second Closing
Date, as the case may be, with respect to the incorporation of the
Company, the Registration Statement and the Prospectus and other
related matters as you may reasonably require, and the Company shall
have furnished to such counsel such documents and shall have exhibited
to them such papers and records as they request for the purpose of
enabling them to pass upon such matters.
(iii) A certificate of the chief executive officer and the
principal financial officer of the Company, dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect
that:
(1) the representations and warranties of the Company set
forth in Section 2 of this Agreement are true and correct as of
the date of this Agreement and as of the First Closing Date or
the Second Closing Date, as the case may be, and the Company has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to such
Closing Date;
(2) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary
prospectus filed as a part of the Registration Statement or any
amendment thereto; no stop order suspending the effectiveness of
the Registration Statement has been issued; and
-24-
to the best knowledge of the respective signers, no proceedings
for that purpose have been instituted or are pending or
contemplated under the 1933 Act; and
(3) subsequent to the date of the most recent financial
statements included in the Registration Statement and the
Prospectus (exclusive of any supplement thereto), and except as
set forth or contemplated in the Prospectus (exclusive of any
supplement thereto), (A) neither the Company nor any of its
subsidiaries has incurred any material liabilities or
obligations, direct or contingent, nor entered into any material
transactions not in the ordinary course of business, and (B)
there has not been any material adverse change in their condition
(financial or otherwise), business, assets, operations or
prospects, or any change in their capital stock or short-term
debt or long-term debt.
The delivery of the certificate provided for in this subparagraph
shall be and constitute a representation and warranty of the Company
as to the facts required in the immediately foregoing clauses (1) and
(2) of this subparagraph to be set forth in said certificate.
(iv) A certificate of each Selling Stockholder dated the First
Closing Date or the Second Closing Date, as the case may be, to the
effect that the representations and warranties of such Selling
Stockholder set forth in Section 3 of this Agreement are true and
correct as of such date and the Selling Stockholder has complied with
all the agreements and satisfied all the conditions on the part of
such Selling Stockholder to be performed or satisfied at or prior to
such date.
(v) At the time the Pricing Agreement is executed and also on
the First Closing Date or the Second Closing Date, as the case may be,
there shall be delivered to you a letter addressed to you from KPMG
Peat Marwick, independent accountants, the first one to be dated the
date of the Pricing Agreement, the second one to be dated the First
Closing Date and the third one (in the event of a second closing) to
be dated the Second Closing Date, to the effect set forth in Schedule
C. The letter shall not disclose any material change, or any
development involving a prospective material change, in or affecting
the business or properties of the Company which, in your reasonable
judgment, makes it impractical or inadvisable to proceed with the
public offering of the Shares or the purchase of the Option Shares as
contemplated by the Prospectus.
-25-
(vi) Such further information, certificates and documents as you
may reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to counsel for the Underwriters, which approval shall not be unreasonably
withheld. The Company shall furnish you with such manually signed or conformed
copies of such opinions, certificates, letters and documents as you request.
If any condition to the Underwriters' obligations hereunder to be satisfied
prior to or at the First Closing Date is not so satisfied, this Agreement at
your election will terminate upon notification to the Company and the Selling
Stockholders without liability on the part of any Underwriter or the Company or
any Selling Stockholder, except for the expenses to be paid or reimbursed by the
Company pursuant to Sections 7 and 9 hereof and except to the extent provided in
Section 11 hereof.
SECTION 9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale
to the Underwriters of the Shares on the First Closing Date is not consummated
because any condition of the Underwriters' obligations hereunder is not
satisfied or because of any refusal, inability or failure on the part of the
Company or the Selling Stockholders to perform any agreement herein or to comply
with any provision hereof, unless such failure to satisfy such condition or to
comply with any provision hereof is due to the default or omission of any
Underwriter, the Company agrees to reimburse you and the other Underwriters upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by you and
them in connection with the proposed purchase and the sale of the Shares. Any
such termination shall be without liability of any party to any other party
except that the provisions of this Section, Section 7 and Section 11 shall at
all times be effective and shall apply.
SECTION 10. EFFECTIVENESS OF REGISTRATION STATEMENT. You, the
Company and the Selling Stockholders will use your, its and their best efforts
to cause the Registration Statement to become effective, if it has not yet
become effective, and to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
SECTION 11. INDEMNIFICATION. (a) The Company and each Selling
Stockholder (other than the Trusts), jointly and severally, and each of the
Trusts severally but not jointly, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the 1933 Act or the Exchange Act against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the 1933 Act, the
-26-
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise (including in settlement of any litigation if such settlement
is effected with the written consent of the Company and/or such Selling
Stockholders, as the case may be), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A and/or
Rule 434, if applicable, any preliminary prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that neither the Company nor any
Selling Stockholder will be liable in any such case to the extent that (i) any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for use
therein; or (ii) if such statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus and (1) any such loss,
claim, damage or liability suffered or incurred by any Underwriter (or any
person who controls any Underwriter) resulted from an action, claim or suit by
any person who purchased Shares that are the subject thereof from such
Underwriter in the offering and (2) such Underwriter failed to deliver or
provide a copy of the Prospectus to such person at or prior to the confirmation
of the sale of such Shares in any case where such delivery is required by the
1933 Act. This indemnity agreement will be in addition to any liability which
the Company and the Selling Stockholders may otherwise have.
Without limiting the full extent of the Company's agreement to indemnify
each Underwriter, as herein provided, (i) each Selling Stockholder, other than
Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxx, shall be liable under the indemnity
agreements contained in paragraph (a) of this Section only for an amount not
exceeding the proceeds received by such Selling Stockholder from the sale of
Shares hereunder, and (ii) Xxxxxxx Xxxxx shall be liable under the indemnity
agreements contained in paragraph (a) of this Section only for an amount not
exceeding the aggregate of the proceeds received by Xxxxxxx Xxxxx, The Xxxxxxx
Xxxxx Income Trust and The Xxxx Xxxxx Income Trust from the sale of Shares
hereunder. The Company and the Selling Stockholders may agree, as among
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of such liability for which
-27-
each of them shall be responsible.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement, and each Selling Stockholder and each person, if any, who controls
the Company within the meaning of the 1933 Act or the Exchange Act, against any
losses, claims, damages or liabilities to which the Company, or any such
director, officer, Selling Stockholder or controlling person may become subject
under the 1933 Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in the Registration Statement, any
preliminary prospectus, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto in reliance
upon and in conformity with Section 4 of this Agreement or any other written
information furnished to the Company by such Underwriter specifically for use in
the preparation thereof; and will reimburse any legal or other expenses
reasonably incurred by the Company, or any such director, officer, Selling
Stockholder or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action. This indemnity agreement
will be in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent that
the indemnifying party was prejudiced by such failure to notify. In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
-28-
parties that are different from or additional to those available to the
indemnifying party, or the indemnified and indemnifying parties may have
conflicting interests that would make it inappropriate for the same counsel to
represent both of them, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defense and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defense in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriters in the case of paragraph (a)
representing all indemnified parties not having different or additional defenses
or potential conflicting interest among themselves who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability arising out
of such proceeding.
(d) If the indemnification provided for in this Section is unavailable to
an indemnified party under paragraph (a) or (b) hereof in respect of any losses,
claims, damages or liabilities referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the
Selling Stockholders and the Underwriters from the offering of the Shares (such
relative benefits to be determined in accordance with the next succeeding
sentence) or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, the Selling Stockholders and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The respective
-29-
relative benefits received by the Company, the Selling Stockholders and the
Underwriters shall be deemed to be in the same proportion in the case of the
Company and the Selling Stockholders, as the total price paid to the Selling
Stockholders for the Shares by the Underwriters (net of underwriting discount
but before deducting expenses), and in the case of the Underwriters as the
underwriting discount received by them bears to the total of such amounts paid
to the Selling Stockholders and received by the Underwriters as underwriting
discount in each case as contemplated by the Prospectus. The relative fault of
the Company and the Selling Stockholders and the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company or by the Selling Stockholders or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages
and liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement to omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section are several in proportion to their respective
underwriting commitments and not joint.
(e) The provisions of this Section shall survive any termination of this
Agreement.
SECTION 12. DEFAULT OF UNDERWRITERS. It shall be a condition to
the agreement and obligation of the Selling Stockholders to sell and deliver the
Shares hereunder, and of each Underwriter to purchase the Shares hereunder,
that, except as hereinafter in this paragraph provided, each of the Underwriters
shall purchase and pay for all Shares agreed to be purchased by such Underwriter
hereunder upon tender to the Underwriters of all such Shares in accordance with
the terms hereof. If any Underwriter or Underwriters default in their
obligations to
-30-
purchase Shares hereunder on the First Closing Date and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10 percent of the total number of Shares which the
Underwriters are obligated to purchase on the First Closing Date, the
Underwriters may make arrangements satisfactory to the Selling Stockholders for
the purchase of such Shares by other persons, including any of the Underwriters,
but if no such arrangements are made by such date the nondefaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Shares which such defaulting Underwriters agreed but
failed to purchase on such date. If any Underwriter or Underwriters so default
and the aggregate number of Shares with respect to which such default or
defaults occur is more than the above percentage and arrangements satisfactory
to the Underwriters and the Selling Stockholders for the purchase of such Shares
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any nondefaulting Underwriter or
the Selling Stockholders, except for the expenses to be paid by the Company
pursuant to Section 7 hereof and except to the extent provided in Section 11
hereof.
In the event that Shares to which a default relates are to be
purchased by the nondefaulting Underwriters or by another party or parties, the
Underwriters, the Selling Stockholders or the Company shall have the right to
postpone the First Closing Date for not more than seven business days in order
that the necessary changes in the Registration Statement, Prospectus and any
other documents, as well as any other arrangements, may be effected. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
SECTION 13. EFFECTIVE DATE. This Agreement shall become effective
immediately as to Sections 7, 9, 11 and 14 and as to all other provisions at
8:30 A.M., Chicago time, on the day following the date upon which the Pricing
Agreement is executed and delivered, unless such a day is a Saturday, Sunday or
holiday (and in that event this Agreement shall become effective at such hour on
the business day next succeeding such Saturday, Sunday or holiday); but this
Agreement shall nevertheless become effective at such earlier time after the
Pricing Agreement is executed and delivered as you may determine on and by
notice to the Company and the Selling Stockholders or by release of any Shares
for sale to the public. For the purposes of this Section, the Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
telegrams (i) advising Underwriters that the Shares are released for public
offering, or (ii) offering the Shares for sale to securities dealers, whichever
may occur first.
SECTION 14. TERMINATION. Without limiting the right
-31-
to terminate this Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to you
and the Selling Stockholders or by you by notice to the Company and the
Selling Stockholders at any time prior to the time this Agreement shall
become effective as to all its provisions, and any such termination shall
be without liability on the part of the Company or the Selling Stockholders
to any Underwriter (except for the expenses to be paid or reimbursed
pursuant to Section 7 hereof and except to the extent provided in Section
11 hereof) or of any Underwriter to the Company or the Selling
Stockholders.
(b) This Agreement may also be terminated by you prior to the First
Closing Date, and the option referred to in Section 5, if exercised, may be
canceled at any time prior to the Second Closing Date, if (i) trading in
securities on the New York Stock Exchange shall have been suspended or
minimum prices shall have been established on such exchange, or (ii) a
banking moratorium shall have been declared by Illinois, New York, or
United States authorities, or (iii) there shall have been an outbreak of
major armed hostilities between the United States and any foreign power
which in the opinion of the Underwriters makes it impractical or
inadvisable to offer or sell the Shares. Any termination pursuant to this
paragraph (b) shall be without liability on the part of any Underwriter to
the Company or the Selling Stockholders or on the part of the Company to
any Underwriter or the Selling Stockholders (except for expenses to be paid
or reimbursed pursuant to Section 7 hereof and except to the extent
provided in Section 11 hereof).
SECTION 15. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY.
The respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholders and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
officers or directors or any controlling person, or the Selling Stockholders as
the case may be, and will survive delivery of and payment for the Shares sold
hereunder.
SECTION 16. NOTICES. All communications hereunder will be in
writing and, if sent to the Underwriters will be mailed, delivered or telecopied
and confirmed to you c/o Xxxxxxx Xxxxx & Company, 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Fax (000) 000-0000, with a copy to Xxxxxx X. Xxxx,
Esq., Winston & Xxxxxx, 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Fax (312)
000-0000; if sent to the Company will be mailed, delivered or telecopied and
confirmed to Zebra Technologies Corporation, 000 Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000, Fax (000) 000-0000 with a copy to Xxxxxxx X. Xxxxx,
Esq., Xxxxxx Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Fax (312)
-32-
902-1061; and if sent to the Selling Stockholders will be mailed, delivered or
telegraphed and confirmed to the Agents at the addresses they have previously
furnished to the Company and the Underwriters.
SECTION 17. SUCCESSORS. This Agreement and the Pricing Agreement
will inure to the benefit of and be binding upon the parties hereto and their
respective successors, personal representatives and assigns, and to the benefit
of the officers and directors and controlling persons referred to in Section 11,
and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares as such from any of
the Underwriters merely by reason of such purchase.
SECTION 18. PARTIAL UNENFORCEABILITY. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
SECTION 19. APPLICABLE LAW. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois, without giving effect to principles of conflicts of laws.
-33-
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholders and the several Underwriters, including you, all in accordance with
its terms.
Very truly yours,
ZEBRA TECHNOLOGIES CORPORATION
By
--------------------------------
Xxxxxx X. Xxxxxx, President and
Chief Executive Officer
SELLING STOCKHOLDERS
By
--------------------------------
Agent and Attorney-in-Fact for
the Selling Stockholders listed
in Schedule B other than the
Trusts
By
--------------------------------
Agent and Attorney-in-Fact for
the Trusts
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written:
XXXXXXX XXXXX & COMPANY
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
XXXXXXXXXX SECURITIES
As Underwriters named in
Schedule A
By Xxxxxxx Xxxxx & Company
By
---------------------------
Title
------------------------
-34-
EXHIBIT A
ZEBRA TECHNOLOGIES CORPORATION
[___________] Shares Class A Common Stock
PRICING AGREEMENT
August [___], 1997
Xxxxxxx Xxxxx & Company
Xxxxxxxxxx Securities
The Xxxxxxxx-Xxxxxxxx Company, Inc.
As Underwriters
c/o Xxxxxxx Xxxxx & Company
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated, August [___],
1997 (the "Underwriting Agreement") relating to the sale by the Selling
Stockholders named therein and the purchase by Xxxxxxx Xxxxx & Company, The
Xxxxxxxx-Xxxxxxxx Company, Inc. and Xxxxxxxxxx Securities(the "Underwriters") of
the above Shares. All terms herein shall have the definitions contained in the
Underwriting Agreement except as otherwise defined herein.
Pursuant to Section 5 of the Underwriting Agreement, the Company and
each of the Selling Stockholders agree with the Underwriters as follows:
1. The public offering price per share for the Shares shall be
$[_____].
2. The purchase price per share for the Shares to be paid by the
several Underwriters shall be $[_____], being an amount equal to the public
offering price set forth above less $[_____] per share.
---------------
* Plus an option to acquire up to [________] additional shares from the
Selling Stockholders to cover overallotments.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholders and the several Underwriters, including you, all in accordance with
its terms.
Very truly yours,
ZEBRA TECHNOLOGIES CORPORATION
By
--------------------------------
Xxxxxx X. Xxxxxx, President,
Chief Executive Officer
SELLING STOCKHOLDERS
By
--------------------------------
Agent and Attorney-in-Fact for
the Selling Stockholders listed
in Schedule B other than the
Trusts
By
--------------------------------
Agent and Attorney-in-Fact for
the Trusts
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX & COMPANY
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
XXXXXXXXXX SECURITIES
As Underwriters
By Xxxxxxx Xxxxx & Company
By
---------------------------
Title
------------------------
SCHEDULE A
Number of
Firm Shares
to be
Underwriter Purchased
----------- ---------
Xxxxxxx Xxxxx & Company . . . . . . . . .
The Xxxxxxxx-Xxxxxxxx Company, Inc. . . .
Xxxxxxxxxx Securities . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . .
---------
---------
SCHEDULE B
Maximum
Number of Number of
Firm Option
Shares Shares
Selling Stockholders: to be Sold to be Sold
-------------------- ---------- ----------
Xxxxxx X. Xxxxxx. . . . . . . . . 1,153,710 173,057
Xxxxx Xxxxxx . . . . . . . . . . 237,698 35,654
Xxxxxxx Xxxxx . . . . . . . . . . 99,740
The Xxxxxxx Xxxxx Income Trust. . 344,000
The Xxxx Xxxxx Income Trust . . . 320,936
---------- ----------
Total . . . . . . . . . . . . . . 2,056,344 308,451
---------- ----------
---------- ----------
SCHEDULE C
Comfort Letter of KPMG Peat Marwick
(1) They are independent public accountants with respect to the
Company and each of its subsidiaries within the meaning of the 1933 Act and the
answer to Item 10 of the Registration Statement, as it relates to them, is
correct.
(2) In their opinion the consolidated financial statements and
schedules of the Company and its subsidiaries included in the Registration
Statement and the consolidated financial statements of the Company from which
the information presented under the captions "Summary Financial Data" and
"Selected Financial Data" has been derived which are stated therein to have been
examined by them comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act.
(3) On the basis of specified procedures (but not an examination in
accordance with generally accepted auditing standards), including inquiries of
certain officers of the Company and its subsidiaries responsible for financial
and accounting matters as to transactions and events subsequent to December 31,
1996, a reading of minutes of meetings of the stockholders and directors of the
Company and its subsidiaries since December 31, 1996, a reading of the latest
available interim unaudited consolidated financial statements of the Company and
its subsidiaries (with an indication of the date hereof and other procedures as
specified in such letter, nothing came to their attention which caused them to
believe that (i) the unaudited financial statements of the Company included in
the Registration Statement do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act or that such
unaudited financial statements are not fairly presented in accordance with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Registration Statement, and (ii) at a specified date not more than five days
prior to the date thereof in the case of the first letter and not more than two
business days prior to the date thereof in the case of the second and third
letters, there was any change in the capital stock or long-term debt or
short-term debt (other than normal payments) of the Company and its subsidiaries
on a consolidated basis or any decrease in consolidated net current assets or
consolidated stockholders' equity as compared with amounts shown on the latest
consolidated balance sheet of the Company included in the Registration Statement
or for the period from the date of such consolidated balance sheet to a date not
more than five days prior to the date thereof in the case of the first letter
and not more than two business days prior to the date thereof in the case of the
second and third letters, there were any decreases, as compared with the
corresponding period of the prior
year, in consolidated net sales, consolidated income before income taxes or in
the total or per share amounts of consolidated net income except, in all
instances, for changes or decreases which the Prospectus discloses have occurred
or may occur or which are set forth in such letter.
(4) On the basis of reading the unaudited pro forma financial
statement data included in the Registration Statement and the Prospectus,
carrying out specified procedures, inquiries of certain officials of the Company
who have responsibility for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amounts in the pro forma financial statement data, nothing came to
their attention that caused them to believe that the pro forma financial
statement data does not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X of or that
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
(5) They have carried out specified procedures, which have been
agreed to by the Underwriters, with respect to certain information in the
Prospectus specified by the Underwriters, and on the basis of such procedures,
they have found such information to be in agreement with the general accounting
records of the Company and its subsidiaries.
