1
EXHIBIT 1
REPTRON ELECTRONICS, INC.
3,000,000 Shares1
Common Stock
UNDERWRITING AGREEMENT
April ___, 1997
PRUDENTIAL SECURITIES INCORPORATED
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXXX INC.
XXXXXXX & COMPANY, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reptron Electronics, Inc., a Florida corporation (the "Company"), and
the selling securityholders named in Schedule 2 hereto (each a "Selling
Securityholder" and together the "Selling Securityholders"), hereby confirm
their agreement with the several underwriters named in Schedule 1 hereto (the
"Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives"), as set forth
below. If you are the only Underwriters, all references herein to the
Representatives shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein
contained, the Company and the Selling Securityholders propose to sell to the
several Underwriters an aggregate of
_______________
1 Plus an option to purchase from the Selling Securityholders and Reptron
Electronics, Inc. up to 450,000 additional shares to cover over-allotments.
2
3,000,000 shares (the "Firm Securities") of the Company's Common Stock, par
value $0.01 per share ("Common Stock") of which 2,200,000 shares will be issued
and sold by the Company (the "Company's Firm Securities") and 800,000 shares
will be sold by the Selling Securityholders (the "Selling Securityholders' Firm
Securities"). Of the Selling Securityholders' Firm Securities, each Selling
Securityholder will sell the number of shares listed opposite its name on
Schedule 2 hereto. The Selling Securityholders and the Company also propose to
sell to the several Underwriters not more than 450,000 additional shares of
Common Stock if requested by the Underwriters as provided in Section 3 of this
Agreement in the following order: first, up to 200,000 of any such additional
shares to be sold by the Selling Securityholders and, second, up to 250,000 of
any such remaining additional shares to be sold by the Company. Any and all
shares of Common Stock to be purchased by the Underwriters pursuant to such
option are referred to herein as the "Option Securities," and the Firm
Securities and any Option Securities are collectively referred to herein as the
"Securities."
2. Representations and Warranties of the Company and the Selling
Securityholders.
(a) The Company and the Selling Securityholders identified in
Schedule 2 hereto, jointly and severally, represent and warrant to, and agree
with, each of the several Underwriters that:
(i) A registration statement on Form S-1 (File No.
333-_______) with respect to the Securities including a prospectus
subject to completion, has been filed by the Company with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), and one or more
amendments to such registration statement may have been so filed.
After the execution of this Agreement, the Company will file with the
Commission either (A) if such registration statement, as it may have
been amended, has been declared by the Commission to be effective under
the Act, either (1) if the Company relies on Rule 434 under the Act, a
Term Sheet (as hereinafter defined) relating to the Securities, that
shall identify the Preliminary Prospectus (as hereinafter defined) that
it supplements containing such information as is required or permitted
by Rules 434, 430A and 424(b) under the Act or (2) if the Company does
not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or,
if no such amendment shall have been filed, in such registration
statement), with such changes or insertions as are required by Rule
430A under the Act or permitted by Rule 424(b) under the Act, and in
the case of either clause (A)(1) or (A)(2) of this sentence as have
been provided to and approved by the Representatives prior to the
execution of this Agreement or (B) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the Act, an amendment to such registration statement,
including a form of prospectus, a copy of which amendment has been
furnished to and approved by the Representatives prior to the execution
of this Agreement. The Company may also file a related registration
statement with the Commission pursuant to Rule 462(b) under the Act for
the purpose of registering certain additional Securities, which
registration shall be
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effective upon filing with the Commission. As used in this Agreement,
the term "Original Registration Statement" means the
registration statement initially filed relating to the Securities, as
amended at the time when it was or is declared effective, including (x)
all financial schedules and exhibits thereto, (Y) all documents
(if any) incorporated by reference therein filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and (Z) any
information omitted therefrom pursuant to Rule 430A under the Act and
included in the Prospectus (as hereinafter defined); the term "Rule
462(b) Registration Statement" means any registration statement filed
with the Commission pursuant to Rule 462(b) (including the Original
Registration Statement and any Preliminary Prospectus or Prospectus
incorporated therein at the time such Registration Statement becomes
effective); the term "Registration Statement" includes both the
Original Registration Statement and any Rule 462(b) Registration
Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with the Original Registration Statement or
any amendment thereto (including the prospectus subject to completion,
if any, included in the Registration Statement or any amendment thereto
at the time it was or is declared effective), including all documents
(if any) incorporated by reference therein filed under the Exchange
Act; the term "Prospectus" means:
(A) If the Company relies on Rule 434 under
the Act, the Term Sheet relating to the Securities that is
first filed pursuant to Rule 424(b)(7) under the Act,
together with the Preliminary Prospectus identified therein
that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434
under the Act, the prospectus first filed with the
Commission pursuant to Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434
under the Act and if no prospectus is required to be filed
pursuant to Rule 424(b) under the Act, the prospectus
included in the Registration Statement,
including, in the case of the immediately foregoing clauses (A), (B) or
(C) of this sentence, all documents (if any) incorporated by reference
therein filed under the Exchange Act. The term "Term Sheet" means any
abbreviated Term Sheet that satisfies the requirements of Rule 434
under the Act. Any reference in this Agreement to an "amendment or
supplement" to any Preliminary Prospectus or any Prospectus or an
"amendment" to any registration statement (including the Registration
Statement) shall be deemed to include any document incorporated by
reference therein that is filed with the Commission under the Exchange
Act after the date of such Preliminary Prospectus, any Prospectus, or
registration statement, as the case may be; any reference herein to the
"date" of a Prospectus that includes a Term Sheet shall mean the date
of such Term Sheet. For purposes of the preceding sentence, any
reference to the "effective date" of an
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amendment to a registration statement shall, if such amendment is
effected by means of the filing with the Commission under the Exchange
Act of a document incorporated by reference in such registration
statement, be deemed to refer to the date on which such document was
filed with the Commission.
(ii) The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus. When
any Preliminary Prospectus was filed with the Commission it (A)
contained all statements required to be stated therein in accordance
with, and complied in all material respects with the requirements of,
the Act and the rules and regulations of the Commission thereunder and
(B) did not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. When the Registration Statement or any amendment
thereto was or is declared effective, it (A) contained or will contain
all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act and the rules and regulations of the Commission thereunder
and (B) did not or will not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or, any Term
Sheet that is a part thereof or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if
the Prospectus or part thereof or such amendment or supplement is not
required to be so filed, when the Registration Statement or the
amendment thereto containing such amendment or supplement to the
Prospectus was or is declared effective) and on the Firm Closing Date
and any Option Closing Date (both as hereinafter defined), the
Prospectus, as amended or supplemented at any such time, (A) contained
or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (ii) do not apply to statements
or omissions made in any Preliminary Prospectus, the Registration
Statement or any amendment thereto or the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(iii) If the Company has elected to rely on Rule
462(b) and the Rule 462(b) Registration Statement has not been declared
effective (A) the Company has filed a Rule 462(b) Registration
Statement in compliance with and that is effective upon filing
pursuant to Rule 462(b) and has received confirmation of its receipt
and (B) the Company has given irrevocable instructions for transmission
of the applicable filing fee in connection with the filing of the Rule
462(b) Registration Statement, in compliance with
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Rule 111 promulgated under the Act or the Commission has received
payment of such filing fee.
(iv) Each of the Company and its subsidiaries has been
duly organized and is validly existing as a corporation in good
standing under the laws of its respective jurisdiction of
incorporation and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Company or any such subsidiary.
(v) Each of the Company and its subsidiaries has full
power (corporate and other) to own or lease its properties and conduct
its business as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); and the Company has full power (corporate and
other) to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it.
(vi) The issued shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable and are owned beneficially by the
Company, directly or indirectly through one or more subsidiaries of the
Company, free and clear of any security interests, liens, encumbrances,
equities or claims other than those arising pursuant to loan agreements
disclosed in the Prospectus. Except for the shares of capital stock of
each of the subsidiaries of the Company owned by the Company or any
such subsidiary, neither the Company nor any subsidiary of the Company
owns any shares of stock or any other equity securities of any
corporation or has any equity interest in any firm, partnership,
association or other entity, except as described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(vii) The Company has an authorized, issued and
outstanding capitalization as set forth in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). All of the issued shares of capital stock of the Company
(including but not limited to the Securities being sold by the Selling
Securityholders) have been duly authorized and validly issued and are
fully paid and nonassessable. The Firm Securities and Option
Securities being issued and sold by the Company have been duly
authorized and at the Firm Closing Date or Option Closing Date (as the
case may be), after payment therefor in accordance herewith, will be
validly issued, fully paid and nonassessable. No holders of
outstanding shares of capital stock of the Company are entitled as such
to any preemptive or other rights to subscribe for any of the
Securities, and no holder of securities of the Company has any right
which has not been fully exercised or waived to require the Company to
register the offer or sale of any securities
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owned by such holder under the Act in the public offering
contemplated by this Agreement.
(viii) The capital stock of the Company conforms to the
description thereof contained in the Prospectus or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus.
(ix) The consolidated financial statements and
schedules of the Company and its subsidiaries included in the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) fairly
present the financial position of the Company and its subsidiaries and
the results of operations and cash flows as of the dates and periods
therein specified. Such financial statements and schedules have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as
otherwise noted therein). The selected consolidated financial data set
forth under the caption "Selected Consolidated Financial Data" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis stated in the
Prospectus (or such Preliminary Prospectus), the information included
therein.
(x) Xxxxx Xxxxxxxx LLP, who have audited certain
financial statements of the Company and its subsidiaries and delivered
their report with respect to the audited consolidated financial
statements and schedules included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), are independent public accountants as
required by the Act and the applicable rules and regulations
thereunder.
(xi) The execution and delivery of this Agreement have
been duly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and is the valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except that rights to indemnity or
contribution maybe limited by applicable law and the enforceability of
this Agreement may be limited by bankruptcy, insolvency or similar laws
affecting the rights of creditors and by equitable principles limiting
the right to specific performance or other equitable relief.
(xii) No legal or governmental proceedings are pending
to which the Company or any of its subsidiaries is a party or to which
the property of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus and are not described therein (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), and, to the
knowledge of the Company, except as described in the Registration
Statement or the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus), no such proceedings have been
threatened against the Company or any of its subsidiaries or with
respect to any of their respective properties; and no contract or
other document is
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required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
that is not described therein (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or filed as
required.
(xiii) The issuance, offering and sale of the Securities
being issued and sold by the Company to the Underwriters pursuant to
this Agreement, the compliance by the Company with the other
provisions of this Agreement and the consummation of the other
transactions herein contemplated do not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained, such as may
be required under state securities or blue sky laws and, if the
registration statement filed with respect to the Securities (as
amended) is not effective under the Act as of the time of the execution
hereof, such as may be required (and shall be obtained as provided in
this Agreement) under the Act or (B) conflict with or result in a
breach or violation of any terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or any of
their respective properties are bound, or the charter documents of the
Company or any of its subsidiaries, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Company or any of its
subsidiaries.
(xiv) The Company has not, directly or indirectly, (A)
taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B) since
the filing of the Registration Statement (1) sold, bid for, purchased
or paid anyone any compensation for soliciting purchases of, the
Securities or (2) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Company
(except for the sale of Securities by the Selling Securityholders under
this Agreement).
(xv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), (A) the Company and its subsidiaries have not sustained
any material loss or interference with their business or properties
from fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or
governmental proceeding and there has not been any material adverse
change, or any development involving a prospective material adverse
change, in the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the Company and its
subsidiaries; (B) the Company and its subsidiaries have not incurred
any material liability or obligation, direct or contingent, nor entered
into any material transaction not in the ordinary course of business;
(C) the Company has not purchased any of its outstanding capital stock,
nor declared, paid or otherwise made any dividend or distribution of
any kind on its capital stock; and
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(D) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its consolidated
subsidiaries, except in each case as described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(xvi) The Company and each of its subsidiaries have
good and marketable title in fee simple to all items of real property
and marketable title to all personal property owned by each of them, in
each case free and clear of any security interests, liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not
interfere with the use made or proposed to be made of such property by
the Company or such subsidiary, and any real property and buildings
held under lease by the Company or any such subsidiary are held under
valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made or proposed to be
made of such property and buildings by the Company or such subsidiary,
in each case except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xvii) No labor dispute with the employees of the
Company or any of its subsidiaries exists or is, to the knowledge of
the Company, threatened or imminent that could result in a material
adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xviii) The Company and its subsidiaries own or possess,
or can acquire on reasonable terms, all material patents, patent
applications, trademarks, service marks, trade names, licenses,
copyrights and proprietary or other confidential information currently
employed by them in connection with their businesses, and neither the
Company nor any such subsidiary has received any notice of, or has any
reasonable belief that its use constitutes, an infringement of or
conflict with asserted rights of any third party with respect to any of
the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material
adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xix) The Company and each of its subsidiaries is
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; neither the Company nor any
such subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any such subsidiary has any
reason to believe
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that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue their business at a
cost that would not materially and adversely affect the condition
(financial or otherwise), business prospects, net worth, or results of
operations of the Company and its subsidiaries, except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xx) No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary's
capital stock, from repaying to the Company any loans or advances to
such subsidiary from the Company or from transferring any of such
subsidiary's property or assets to the Company or any other subsidiary
of the Company, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxi) The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, the absence of which could have a
material adverse effect on the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company
and its subsidiaries, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material
adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xxii) The Company will conduct its operations in a
manner that will not subject it to registration as an investment
company under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and this transaction will not cause the
Company to become an investment company subject to registration under
the Investment Company Act.
(xxiii) The Company and its subsidiaries have filed all
foreign, federal, state and local tax returns that are required to
be filed or have requested extensions thereof (except in any case in
which the failure so to file would not have a material adverse effect
on the Company and its subsidiaries) and have paid all taxes required
to be paid by them and any other assessment, fine or penalty levied
against them, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as described in or
contemplated by the
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Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(xxiv) Neither the Company nor any of its subsidiaries
is in violation of any federal or state law or regulation relating to
(A) the environment or hazardous or toxic substances or wastes,
pollutants or contaminants or to the storage, handling or
transportation of hazardous or toxic material ("Environmental Laws") or
(B) occupational safety and health and the Company and its subsidiaries
have received all permits, licenses or other approvals required of them
under applicable federal and state occupational safety and health and
Environmental Laws and regulations to conduct their respective
businesses, and the Company and each such subsidiary is in compliance
with all terms and conditions of any such permit, license or approval,
except any such violation of law or regulation, failure to receive
required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals which
would not, singly or in the aggregate, result in a material adverse
change in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Company and its subsidiaries,
except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). Neither the Company nor any of its subsidiaries have any
pending or threatened Environmental Law or occupational safety and
health claims against it nor are there circumstances with respect to
any property or operations of the Company or any such subsidiary that
could reasonably be anticipated to form the basis of an Environmental
Law or occupational safety and health claim against the Company or any
such subsidiary which, singly or in the aggregate, would result in a
material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company
and its subsidiaries, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxv) In the ordinary course of its business, the
Company conducts a periodic review of the effect of Environmental Laws
on the business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
the Company has reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries.
(xxvi) Each certificate signed by any officer of the
Company and delivered to the Representatives or counsel for the
Underwriters pursuant to this Agreement shall be deemed to be a
representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
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(xxvii) The Company and each of its subsidiaries
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific authorizations; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (C) access to assets
is permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxviii) No default exists and no event has occurred which,
with notice or lapse of time or both, would constitute a default in the
due performance and observance of any term, covenant or condition of
any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or any of
their respective properties is bound or may be affected in any material
adverse respect with regard to property, business or operations of the
Company and its subsidiaries.
(xxix) All offers and sales of the Company's capital
stock prior to the date hereof, except for the shares of Common Stock
issued and sold in the Company's initial public offering consummated in
March 1994, were at all relevant times exempt from the registration
requirements of the Act, and were the subject of an available exemption
from the registration requirements of all applicable state securities
or blue sky laws.
(xxx) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding (A) securities or obligations of
the Company or any of its subsidiaries convertible into or exchangeable
for any capital stock of the Company or any such subsidiary, (B)
warrants, rights or options to subscribe for or purchase from the
Company or any such subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations or (C)
obligations of the Company or any such subsidiary to issue any shares
of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(xxxi) The Company has not distributed and, prior to the
later of (A) the Firm Closing Date and (B) the completion of the
distribution of the Securities, will not distribute any offering
material in connection with the offering and sale of the Securities
other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any supplement or amendment
thereto, or any materials, if any permitted by the Act.
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(xxxii) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida) to the extent such provisions are applicable to the Company.
(b) Each Selling Securityholder severally represents and warrants
to, and agrees with, each of the several Underwriters that:
(i) Such Selling Securityholder has full power
(partnership, trust and other) to enter into this Agreement and to
sell, assign, transfer and deliver to the Underwriters the Securities
to be sold by such Selling Securityholder hereunder in accordance with
the terms of this Agreement; the execution and delivery of this
Agreement have been duly authorized by all necessary actions of such
Selling Securityholder (partnership, trust or other, as applicable);
and this Agreement has been duly executed and delivered by such
Selling Securityholder and is the valid and binding agreement of such
Selling Securityholder, enforceable against such Selling
Securityholder in accordance with its terms.
(ii) Such Selling Securityholder has duly executed and
delivered a power of attorney and custody agreement (with respect to
such Selling Securityholder, the "Power of Attorney" and the "Custody
Agreement," respectively), each in the form heretofore delivered to
the Representatives, appointing Xxxxxxx X. Xxxxx and Xxxx X. Xxxxxx as
such Selling Securityholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute, deliver and perform
this Agreement on behalf of such Selling Securityholder and appointing
First Union National Bank of North Carolina, as custodian thereunder
(the "Custodian"). Certificates in negotiable form, endorsed in
blank or accompanied by blank stock powers duly executed, with
signatures appropriately guaranteed, representing the Securities to be
sold by such Selling Securityholder hereunder have been deposited with
the Custodian pursuant to the Custody Agreement for the purpose of
delivery pursuant to this Agreement. Such Selling Securityholder has
full power (partnership, trust or other, as applicable) to enter into
the Custody Agreement and the Power of Attorney and to perform his
obligations under the Custody Agreement. The Custody Agreement and
the Power of Attorney have been duly executed and delivered by such
Selling Securityholder and, assuming due authorization, execution and
delivery by the Custodian, are valid and binding agreements of such
Selling Securityholder, enforceable against such Selling
Securityholder in accordance with their respective terms.
(iii) Such Selling Securityholder agrees that each of
the Securities represented by the certificates on deposit with the
Custodian is subject to the interests of the Underwriters hereunder,
that the arrangements made for such custody, the appointment of the
Attorneys-in-Fact and the right, power and authority of the
Attorneys-in-Fact to execute and deliver this Agreement, to agree on
the price at which the Securities (including such Selling
Securityholder's Securities) are to be sold to the Underwriters, and
to carry out the terms of this Agreement, are to that extent
irrevocable
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and that the obligations of such Selling Securityholder hereunder shall
not be terminated, except as provided in this Agreement or the Custody
Agreement, by any act of such Selling Securityholder, by operation of
law or otherwise, whether in the case of any individual Selling
Securityholder by the death or incapacity of such Selling
Securityholder, 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 Selling
Securityholder by its liquidation or dissolution or by the occurrence
of any other event. If any individual Selling Securityholder, trustee
or executor should die or become incapacitated or any such trust should
be terminated, or if any corporate or partnership Selling
Securityholder shall liquidate or dissolve, or if any other event
should occur, before the delivery of such Securities hereunder, the
certificates for such Securities deposited with the Custodian shall be
delivered by the Custodian in accordance with the respective terms and
conditions of this Agreement as if such death, incapacity, termination,
liquidation or dissolution or other event had not occurred, regardless
of whether or not the Custodian or the Attorneys-in-Fact shall have
received notice thereof.
(iv) Such Selling Securityholder is the lawful [record
and beneficial] owner of the Securities to be sold by such Selling
Securityholder hereunder and upon sale and delivery of, and payment for,
such Securities as provided herein, such Selling Securityholder will
convey good and marketable title to such Securities, free and clear of
any security interests, liens, encumbrances, equities, claims or other
defects.
(v) Such Selling Securityholder has not, directly or
indirectly, (A) taken any action designed to cause or result in, or that
has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B) since
the filing of the Registration Statement (1) sold, bid for, purchased or
paid anyone any compensation for soliciting purchases of, the Securities
or (2) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company
(except for the sale of Securities by under this Agreement).
(vi) The sale by such Selling Securityholder of
Securities pursuant hereto is not prompted by any adverse information
concerning the Company that is not set forth in the Registration
Statement or the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(vii) The sale of the Securities to the Underwriters by
such Selling Securityholder pursuant to this Agreement, the compliance
by such Selling Securityholder with the other provisions of this
Agreement and the Custody Agreement and the consummation of the other
transactions herein contemplated do not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as has been obtained, such as may be
required under state securities or blue sky laws and, if the
registration statement filed with respect to the
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Securities (as amended) is not effective under the Act as of the time
of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act or (B) conflict with or
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,
lease or other agreement or instrument to which such Selling
Securityholder is a party or by which such Selling Securityholder or
any of such Selling Securityholder's properties are bound, or any
statute or any judgment, decree, order, rule or regulation of any court
or other governmental authority or any arbitrator applicable to such
Selling Securityholder.
(viii) Such Selling Securityholder has reviewed the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the Registration Statement, and the
information regarding such Selling Securityholder (as the case may be)
set forth therein under the captions "Management" and "Principal and
Selling Shareholders" is complete and accurate.
(ix) The Selling Securityholders have not distributed and,
prior to the later of (A) the Firm Closing Date and (B) the completion
of the distribution of the Securities, will not distribute any
offering material in connection with the offering and sale of the
Securities other than the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any
supplement or amendment thereto, or any materials, if any permitted by
the Act.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to, and each of the Selling
Securityholders agrees to sell to, each of the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company
and the Selling Securityholders at a purchase price of $______ per share, the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule 1 hereto. The Company's Firm Securities shall consist of 2,200,000
shares of Common Stock and the Selling Securityholders' Firm Securities shall
consist of 800,000 shares of Common Stock. The number of Firm Securities to be
purchased by each Underwriter from the Company and each Selling Securityholder
shall be as nearly as practicable in the same proportion to the total number of
Firm Securities being sold by each of the Company and each Selling
Securityholder as the total number of Firm Securities to be purchased by such
Underwriter bears to the total number of Firm Securities to be purchased by the
Underwriters hereunder. The obligations of the Company and of each of the
Selling Securityholders shall be several and not joint. One or more
certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company and the Selling Securityholders at least 48
hours prior to the Firm Closing Date, shall be delivered by or on behalf of the
Company and the Selling Securityholders to the Representatives for the
respective accounts of the
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Underwriters, against payment by or on behalf of the Underwriters of the
purchase price therefor by wire transfer payable in same-day funds (the "Wired
Funds") to the order of the Company in the case of the Company's Firm
Securities and to the order of the Custodian in the case of the Selling
Securityholders' Firm Securities. At the election of the several Underwriters,
which election shall be made by the Representatives on behalf of such
Underwriters, delivery of the Firm Securities may be made through the
book-entry facilities of The Depository Trust Company on behalf of the Company
to Prudential Securities Incorporated for the account of such Underwriters.
Such delivery of and payment for the Firm Securities shall be made at the
offices of King & Spalding, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
9:30 A.M., New York time, on April __, 1997; or at such other place, time or
date as the Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 9 hereof, such time and date
of delivery against payment being herein referred to as the "Firm Closing
Date." The Company and the Selling Securityholders will make such certificate
or certificates for the Firm Securities available for checking and packaging by
the Representatives at the offices in New York, New York of the Company's
transfer agent or registrar or of Prudential Securities Incorporated at least
24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Securities as contemplated by
the Prospectus, the Company and the Selling Securityholders hereby grant to the
several Underwriters an option to purchase, severally and not jointly, the
Option Securities in the order and in the amounts set forth in Section 1 of
this Agreement. The purchase price to be paid for any Option Securities shall
be the same price per share as the price per share for the Firm Securities set
forth above in paragraph (a) of this Section 3. The option granted hereby may
be exercised as to all or any part of the Option Securities from time to time
within thirty days after the date of the Prospectus (or, if such 30th day shall
be a Saturday or Sunday or a holiday, on the next business day thereafter when
the Nasdaq National Market is open for trading). The Underwriters shall not be
under any obligation to purchase any of the Option Securities prior to the
exercise of such option. The Representatives may from time to time exercise the
option granted hereby by giving notice in writing or by telephone (confirmed in
writing) to the Company setting forth the aggregate number of Option Securities
as to which the several Underwriters are then exercising the option and the
date and time for delivery of and payment for such Option Securities. Any such
date of delivery shall be determined by the Representatives but shall not be
earlier than two business days or later than five business days after such
exercise of the option and, in any event, shall not be earlier than the Firm
Closing Date. The time and date set forth in such notice, or such other time
on such other date as the Representatives, the Company and the
Attorneys-In-Fact, on behalf of the Selling Securityholders, may agree upon or
as the Representatives may determine pursuant to Section 9 hereof, is herein
called the "Option Closing Date" with respect to such Option Securities. Upon
exercise of the option as provided herein, the Company and the Selling
Securityholders shall become obligated, subject to the terms and conditions in
Section 1 of this Agreement, to sell to each of the several Underwriters, and,
subject to the terms and conditions herein set forth, each of the Underwriters
(severally and not jointly) shall become obligated to purchase from the Company
and the Selling Securityholders, the same percentage of the total
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number of the Option Securities as to which the several Underwriters are then
exercising the option as such Underwriter is obligated to purchase of the
aggregate number of Firm Securities, as adjusted by the Representatives in such
manner as they deem advisable to avoid fractional shares. If the option is
exercised as to all or any portion of the Option Securities, one or more
certificates in definitive form for such Option Securities, and payment
therefor, shall be delivered on the related Option Closing Date in the manner,
and upon the terms and conditions, set forth in paragraph (a) of this Section 3
with respect to the sale of the Firm Securities, except that reference therein
to the Firm Securities and the Firm Closing Date shall be deemed, for purposes
of this paragraph (b), to refer to such Option Securities and Option Closing
Date, respectively.
(c) The Company and each of the Selling Securityholders hereby
acknowledge that the wire transfer by or on behalf of the Underwriters of the
purchase price for any Securities does not constitute the closing of a purchase
and sale of the Securities. Only execution and delivery of a receipt for
Securities by the Underwriters indicates completion of the closing of a
purchase of the Securities from the Company and the Selling Securityholders.
Furthermore, in the event that the Underwriters wire funds to the Company and
the Selling Securityholders prior to the completion of the closing of a
purchase of the Securities, the Company and the Selling Securityholders hereby
acknowledge that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company and the Selling
Securityholders will not be entitled to the Wired Funds and shall return the
Wired Funds to the Underwriters as soon as practicable (by wire transfer of
same-day funds) upon demand. In the event that the closing of a purchase of
the Securities is not completed and the Wired Funds are not returned by the
Company and the Selling Securityholders to the Underwriters on the same day the
Wired Funds were received by the Company and the Selling Securityholders, the
Company and each of the Selling Securityholders agree to reimburse the
Underwriters for each day the Wired Funds are not returned, in same-day funds,
interest on the amount of Wired Funds in an amount equal to each day's
interest, based on an annual interest rate, simple interest, representing the
Underwriters' cost of financing as reasonably determined by Prudential
Securities Incorporated. Upon satisfactory receipt of the Securities by the
Underwriters in accordance with all the terms of this Agreement and the
compliance by the Company and the Selling Securityholders with all the terms of
this Agreement to be performed on or before the Closing Date, the Underwriters
shall execute the receipt described above for the Securities.
(d) It is understood that any of you, individually and not as one
of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations
hereunder.
4. Offering by the Underwriters. Upon your authorization of the
release of the Firm Securities, the several Underwriters propose to offer the
Firm Securities for sale to the public upon the terms set forth in the
Prospectus.
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5. Covenants of the Company and the Selling Securityholders.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto to become effective as
promptly as possible. If required, the Company will file the
Prospectus or any Term Sheet that constitutes a part thereof and any
amendment or supplement thereto with the Commission in the manner and
within the time period required by Rules 434 and 424(b) under the Act.
During any time when a prospectus relating to the Securities is
required to be delivered under the Act, the Company (A) will comply
with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to
permit the continuance of sales of or dealings in the Securities in
accordance with the provisions hereof and of the Prospectus, as then
amended or supplemented and (B) will not file with the Commission the
Prospectus, Term Sheet or the amendment referred to in the second
sentence of Section 2(a)(i) hereof, any amendment or supplement to such
Prospectus, Term Sheet or any amendment to the Registration Statement
or any Rule 462(b) Registration Statement of which the Representatives
shall not previously have been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to which
filing the Representatives shall not have given their consent. The
Company will prepare and file with the Commission, in accordance with
the rules and regulations of the Commission, promptly upon request by
the Representatives or counsel for the Underwriters, any amendments to
the Registration Statement or any Rule 462(b) Registration Statement or
amendments or supplements to the Prospectus that may be necessary or
advisable in connection with the distribution of the Securities by the
several Underwriters, and will use its best efforts to cause any such
amendment to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time
when the Registration Statement or any amendment thereto has been filed
or declared effective or the Prospectus or any amendment or supplement
thereto has been filed and will provide evidence satisfactory to the
Representatives of each such filing or effectiveness.
(ii) The Company will advise the Representatives,
promptly after receiving notice or obtaining knowledge thereof, of (A)
the issuance by the Commission of any stop order suspending the
effectiveness of the Original Registration Statement or any Rule 462(b)
Registration Statement or any amendment thereto or any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, (B) the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, (C) the institution, threatening or contemplation of any
proceeding for any such purpose or (D) any request made by the
Commission for amending the Original Registration Statement or any Rule
462(b) Registration Statement, for amending or supplementing the
Prospectus or for additional information. The
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Company will use its best efforts to prevent the issuance of any such
stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(iii) The Company will arrange for the qualification of
the Securities for offering and sale (with the assistance of counsel
for the Underwriters) under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue
such qualifications in effect for as long as may be necessary to
complete the distribution of the Securities; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to execute a general consent to service of
process in any jurisdiction.
(iv) If, at any time prior to the later of (A) the final
date when a prospectus relating to the Securities is required to be
delivered under the Act or (B) the Option Closing Date, any event
occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if for any other reason it is necessary at any time
to amend or supplement the Prospectus to comply with the Act or the
rules or regulations of the Commission thereunder, the Company will
promptly notify the Representatives thereof and, subject to Section
5(a)(i) hereof, will prepare and file with the Commission, at the
Company's expense, an amendment to the Registration Statement or an
amendment or supplement to the Prospectus that corrects such statement
or omission or effects such compliance.
(v) The Company will, without charge, provide (A) to the
Representatives and to counsel for the Underwriters five signed copies
of the registration statement originally filed with respect to the
Securities and each amendment thereto and any Rule 462(b) Registration
Statement (in each case including exhibits thereto) as the
Representatives and counsel to the Underwriters may reasonably request,
(B) to each other Underwriter, a conformed copy of such Registration
Statement and any Rule 462(b) Registration Statement and each amendment
thereto (in each case without exhibits thereto) and (C) so long as a
prospectus relating to the Securities is required to be delivered under
the Act, as many copies of each Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request; without limiting the
application of clause (C) of this sentence, the Company, not later than
(1) 6:00 PM, New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to
10:00 AM, New York City time, on such date or (2) 2:00 PM, New York
City time, on the business day following the date of determination of
the public offering price, if such determination occurred after 10:00
AM, New York City time, on such date, will deliver to the Underwriters,
without charge, as many copies of the Prospectus and any amendment or
supplement thereto as the Representatives may reasonably request for
purposes of confirming orders that are expected to settle on the Firm
Closing Date.
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(vi) The Company, as soon as practicable, will make
generally available to its securityholders and to the Representatives a
consolidated earnings statement of the Company and its subsidiaries
that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(vii) The Company will apply the net proceeds from the
sale of the Securities as set forth under "Use of Proceeds" in the
Prospectus.
(viii) The Company will not, directly or indirectly,
without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale,
contract of sale, pledge, grant of any option to purchase or other sale
or disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, Common Stock or
other capital stock of the Company, or any right to purchase or acquire
Common Stock or other capital stock of the Company for a period of 90
days after the date hereof, except pursuant to this Agreement, and
except for issuances pursuant to the exercise of employee stock options
outstanding on the date hereof.
(ix) The Company will not, directly or indirectly, (A)
take any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B) (1)
sell, bid for, purchase, or pay anyone any compensation for soliciting
purchases of, the Securities (except for the sale of Securities under
this Agreement) or (2) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company (except for the sale of Securities by under this
Agreement).
(x) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the
Option Closing Date, any rumor, publication or event relating to or
affecting the Company or its subsidiaries shall occur as a result of
which in your opinion the market price of the Common Stock has been or
is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after written notice from you advising
the Company to the effect set forth above, to the extent consistent
with the Act and the rules and regulations thereunder, prepare, consult
with you concerning the substance of, and disseminate a press release
or other public statement, reasonably satisfactory to you, responding
to or commenting on such rumor, publication or event.
(xi) The Company will obtain the agreements described in
Section 7(g) hereof prior to the Firm Closing Date.
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(xii) The Company, during the period when the Prospectus
is required to be delivered under the Act or the Exchange Act, will
file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the time
periods required by the Exchange Act and the rules and regulations
thereunder.
(xiii) The Company will cause Firm Securities and Option
Securities to be issued and sold by it to be listed for trading on the
Nasdaq National Market prior to the Firm Closing Date. The Company
will ensure that the Securities remain listed for trading on the Nasdaq
National Market following the Firm Closing Date.
(xiv) During a period of five years from the effective
date of the Registration Statement, the Company will furnish to you
and, upon request, to each of the other Underwriters, without
charge, (A) copies of all reports or other communications (financial or
other) furnished to securityholders, (B) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange and (C) such
additional publicly available information concerning the business and
financial condition of the Company and its subsidiaries, if any, as you
may reasonably request.
(xv) If the Company elects to rely on Rule 462(b), the
Company shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees
in accordance with Rule 111 promulgated under the Act by the earlier of
(A) 10:00 P.M. Eastern time on the date of this Agreement and (B) the
time confirmations are sent or given, as specified by Rule 462(b)(2).
(b) Each Selling Securityholder covenants and agrees with each of
the Underwriters that:
(i) Such Selling Securityholder will not, directly or
indirectly, without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale,
contract of sale, pledge, grant of any option to purchase or other sale
or disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, Common Stock or
other capital stock of the Company, or any right to purchase or acquire
Common Stock or other capital stock of the Company for a period of 90
days after the date hereof, except pursuant to this Agreement.
(ii) Such Selling Securityholder will not, directly or
indirectly, (A) take any action designed to cause or to result in, or
that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities or (B) (1) sell, bid for,
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purchase, or pay anyone any compensation for soliciting purchases
of, the Securities (except for the sale of the Securities under this
Agreement) or (2) pay or agree to pay to any person any compensation
for soliciting another to purchase any other securities of the Company
(except for the sale of Securities by the Selling Securityholder under
this Agreement).
(iii) In order to document the Underwriters' compliance
with the reporting and withholding provisions of the Internal Revenue
Code of 1986, as amended, with respect to the transactions herein
contemplated, such Selling Securityholder agrees to deliver to the
Representatives prior to or on the Firm Closing Date a properly
completed and executed United States Treasury Department Form W-8 or
W-9 (or other applicable form or statement specified by the Treasury
Department regulations in lieu thereof).
6. Expenses. The Company will pay all costs and expenses
incident to the performance of the obligations of the Company and the Selling
Securityholders under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 12 hereof, including all costs and expenses incident to (a) the
printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed
with respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (b)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (c) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (d)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees and
the Custodian's fees, (e) the qualification of the Securities under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriters relating thereto, (f) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Securities, (g) any listing of the Securities on the Nasdaq National
Market, (h) the expenses of the Company in connection with any meetings with
prospective investors in the Securities and (i) advertising relating to the
offering of the Securities other than as shall have been specifically approved
by the Representatives to be paid for by the Underwriters. [To the extent, if
at all, that any of the Selling Securityholders engage special legal counsel to
represent them in connection with this offering, other than special counsel to
the Company, the fees and expenses of such counsel shall be borne by such
Selling Securityholders.] Any transfer taxes imposed on the sale of the
Securities to the several Underwriters will be paid by the Company and the
Selling Securityholders pro rata. If the sale of the Securities provided for
herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied, because this
Agreement is terminated pursuant to Section 12(a)(i) and (a)(ii) hereof or
because of any failure, refusal or inability on the part of the Company or any
Selling Securityholder to perform all obligations and satisfy all conditions on
its
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part to be performed or satisfied hereunder other than by reason of a default
by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including counsel fees
and disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. The Company shall not in any
event be liable to any of the Underwriters for the loss of anticipated profits
from the transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations
of the several Underwriters to purchase and pay for the Firm Securities shall
be subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Selling Securityholders
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Securityholders of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any
amendment thereto filed prior to the Firm Closing Date has not been
declared effective as of the time of execution hereof, the Original
Registration Statement or such amendment and, if the Company has
elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have been declared effective not later than the earlier
of (i) 11:00 A.M., New York time, on the date on which the amendment to
the registration statement originally filed with respect to the
Securities or to the Registration Statement, as the case may be,
containing information regarding the initial public offering price of
the Securities has been filed with the Commission and (ii) the time
confirmations are sent or given as specified by Rule 462(b)(2) or, with
respect to the Original Registration Statement, such later time and
date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required
by Rules 434 and 424(b) under the Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto
shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or
the Representatives, shall be contemplated by the Commission; and the
Company shall have complied with any request of the Commission for
additional information (to be included in the Registration Statement or
the Prospectus or otherwise).
(b) The Representatives shall have received an
opinion, dated the Firm Closing Date, of Holland & Knight LLP,
counsel for the Company, to the effect that:
(i) each of the Company and its
subsidiaries listed in Exhibit 21 to the Registration
Statement (the "Subsidiaries") have been duly
organized and is validly existing as a
corporation in good standing under the laws of its
respective jurisdiction of incorporation and is duly
qualified to transact business as a foreign
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corporation and is in good standing under the laws of
all other jurisdictions where the ownership or
leasing of its properties or the conduct of its
business requires such qualification, except where
the failure to be so qualified does not amount to a
material liability or disability to the Company and
the Subsidiaries.
(ii) each of the Company and the
Subsidiaries have the corporate power to own or lease
its properties and conduct its business as
described in the Registration Statement and the
Prospectus, and the Company has the corporate power
to enter into this Agreement and to carry out all
the terms and provisions hereof to be carried out by
it;
(iii) the issued shares of capital stock
of each of the Company's Subsidiaries have been duly
authorized and validly issued, are fully paid
and nonassessable and are owned beneficially by the
Company, directly or indirectly through one or more
subsidiaries of the Company, free and clear of any
security interests, liens, encumbrances, equities or
claims other than those arising pursuant to loan
agreements disclosed in the Prospectus; and, except
for the shares of stock of each of the Subsidiaries
of the Company owned by the Company or any such
Subsidiary, neither the Company nor any Subsidiary of
the Company owns any shares of stock or any other
equity securities of any corporation or has any
equity interest in any firm, partnership, association
or other entity, except as described in or
contemplated by the Prospectus.
(iv) the Company has an authorized,
issued and outstanding capitalization as set forth in
the Prospectus; all of the issued shares of capital
stock of the Company (including but not limited to
the Securities being sold by the Selling
Securityholders) have been duly authorized and
validly issued and are fully paid and nonassessable,
have been issued in compliance with all applicable
federal and state securities laws and were not issued
in violation of or subject to any preemptive rights
or other rights to subscribe for or purchase
securities; the Firm Securities and Option Securities
being issued and sold by the Company have been duly
authorized and, when issued and delivered to and paid
for by the Underwriters pursuant to this Agreement,
will be validly issued, fully paid and nonassessable;
the Securities being issued and sold by the Company
have been duly listed for trading on the Nasdaq
National Market; no holders of outstanding shares of
capital stock of the Company are entitled as such to
any preemptive or other rights to subscribe for any
of the Securities; and to the knowledge of such
counsel after investigation no holder of securities
of the Company are entitled to have such securities
registered under the Registration Statement;
(v) the statements set forth under the
heading "Description of Capital Stock" in the
Prospectus, insofar as such statements purport to
summarize certain provisions of the capital stock of
the Company, provide a fair summary of
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such provisions, and the statements set forth under
the heading "Business-Legal Proceedings" in the
Prospectus, insofar as such statements constitute a
summary of the matters referred to therein, provide a
fair summary of such matters;
(vi) the execution and delivery of this
Agreement have been duly authorized by all
necessary corporate action of the Company, and this
Agreement has been duly executed and delivered by the
Company;
(vii) (A) no legal or governmental
proceedings are pending to which the Company or any
of the Subsidiaries is a party or to which the
property of the Company or any of the Subsidiaries is
subject that are required to be described in the
Registration Statement or the Prospectus and are not
described therein, and, to the knowledge of such
counsel after investigation, no such proceedings have
been threatened against the Company or any of the
Subsidiaries or with respect to any of their
respective properties and (B) to the knowledge of
such counsel after investigation, no contract or
other document is required to be described in the
Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement
that is not described therein or filed as required;
(viii) the issuance, offering and sale of
the Securities being issued and sold by the Company
to the Underwriters pursuant to this Agreement,
the compliance by the Company with the other
provisions of this Agreement and the consummation of
the other transactions herein contemplated do not (A)
require the consent, approval, authorization,
registration or qualification of or with any
governmental authority, except such as have been
obtained, such as may be required under state
securities or blue sky laws and such as may be
required under the Act or (B) conflict with or 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, lease or other
agreement or instrument known to such counsel after
investigation, to which the Company or any of the
Subsidiaries is a party or by which the Company or
any of the Subsidiaries or any of their respective
properties are bound, or the charter documents of the
Company or any of the Subsidiaries, or any statute or
any judgment, decree, order, rule or regulation of
any court or other governmental authority or any
arbitrator known to such counsel after investigation
and applicable to the Company or any of the
Subsidiaries;
(ix) the Registration Statement is
effective under the Act; any required filing of the
Prospectus or any Term Sheet that constitutes a part
thereof pursuant to Rules 434 and 424(b) has been
made in the manner and within the time period
required by Rules 434 and 424(b); and no stop order
suspending the effectiveness of the Registration
Statement or any amendment thereto has been issued,
and no proceedings for that purpose have been
instituted or, to the
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knowledge of such counsel after investigation,
threatened or are contemplated by the Commission;
(x) the registration statement
originally filed with respect to the Securities and
each amendment thereto, any Rule 462(b) Registration
Statement and the Prospectus (in each case not
including the financial statements and other
financial information contained therein, as to which
such counsel need express no opinion) comply as to
form in all material respects with the applicable
requirements of the Act, and the rules and
regulations of the Commission thereunder;
(xi) to the knowledge of such counsel
after investigation, the Company and the Subsidiaries
possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their
respective businesses, the absence of which could
have a material adverse effect on the condition
(financial or otherwise), business prospects, net
worth or results of operations of the Company and its
Subsidiaries, and neither the Company nor any of its
Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any
such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result
in a material adverse change in the condition
(financial or otherwise), business prospects, net
worth or results of operations of the Company and the
Subsidiaries, except as described in or contemplated
by the Prospectus;
(xii) the Company is not an "investment
company" under the Investment Company Act of 1940, as
amended, and consummation of the transactions herein
contemplated will not cause the Company to become an
investment company subject to registration under the
Investment Company Act;
(xiii) all offers and sales of the
Company's capital stock prior to the date hereof,
except for the shares of Common Stock issued and sold
in the Company's initial public offering
consummated in March 1994, were at all relevant times
exempt from the registration requirements of the Act,
and were the subject of an available exemption from
the registration requirements of all applicable state
securities or blue sky laws;
(xiv) except as disclosed in the
Prospectus, there are no outstanding (A) securities
or obligations of the Company or any of its
Subsidiaries convertible into or exchangeable for
any capital stock of the Company or any such
Subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any
such Subsidiary any such capital stock or any such
convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any
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such Subsidiary to issue any shares of capital stock,
any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(xv) If the Company elects to rely on
Rule 434, the Prospectus is not "materially
different", as such term is used in Rule 434, from
the prospectus included in the Registration Statement
at the time of its effectiveness or any effective
post-effective amendment thereto (including such
information that is permitted to be omitted pursuant
to Rule 430A).
Such counsel shall also state that they have no reason to
believe (A) that the Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading and (B) that the Prospectus, as
of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and public
officials. The phrases "to our knowledge after investigation" and
"known to such counsel after investigation" are limited to the actual
current knowledge of the Holland & Knight LLP lawyers, currently with
the firm, who have given substantive attention to matters relating to
the Company's affairs. The phrases also indicate that such counsel
has made reasonable inquiry of the representatives of the Company who,
in the judgment of such counsel, are likely to know the facts upon
which the opinion will be based. Such counsel shall also state that
the foregoing standard for factual inquiry is appropriate for counsel
to an issuer of securities registered under the Act. The opinion
shall also state that as to matters of Florida law, King & Spalding,
counsel to the Underwriters, shall be entitled to rely upon such
opinion.
References to the Registration Statement and the Prospectus in
this paragraph (b) shall include any amendment or supplement thereto
at the date of such opinion.
(c) The Representatives shall have received an
opinion, dated the Firm Closing Date of Holland & Knight LLP,
counsel for the Selling Securityholders, to the effect that:
(i) each Selling Securityholder has full
power (partnership, trust or other) to enter into
this Agreement, the Custody Agreement and the Power
of Attorney and to sell, assign, transfer and
deliver to the Underwriters the Securities to be sold
by such Selling Securityholder hereunder in
accordance with the terms of this Agreement, and to
perform his or its obligations under the Custody
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Agreement; the execution and delivery of this
Agreement, the Custody Agreement and the Power of
Attorney have been duly authorized by all necessary
action (partnership, trust or other) of each Selling
Securityholder; this Agreement, the Custody Agreement
and the Power of Attorney have been executed and
delivered by such Selling Securityholder; assuming
due authorization, execution and delivery by the
Custodian, the Custody Agreement and the Power of
Attorney are the valid and binding agreements of such
Selling Securityholder, enforceable against such
Selling Securityholder in accordance with their
respective terms;
(ii) the delivery by such Selling
Securityholder to the Underwriters of certificates
for the Securities being sold hereunder by such
Selling Securityholder against payment
therefor as provided herein, will convey good and
marketable title to such Securities to the several
Underwriters, free and clear of any security
interests, liens, encumbrances, equities, claims or
other defects; and
(iii) the sale of the Securities to
the Underwriters by such Selling Securityholder
pursuant to this Agreement, the compliance by such
Selling Securityholder with the other
provisions of this Agreement and the Custody
Agreement and the consummation of the other
transactions herein contemplated do not (A) require
the consent, approval, authorization, registration or
qualification of or with any governmental authority,
except such as has been obtained, such as may be
required under state securities or blue sky laws and
such as may be required under the Act or (B) to the
knowledge of such counsel after investigation,
conflict with or 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,
lease or other agreement or instrument to which such
Selling Securityholder is a party or by which such
Selling Securityholder or any of such Selling
Securityholder's properties are bound, or any statute
or any judgment, decree, order, rule or regulation of
any court or other governmental authority or any
arbitrator applicable to such Selling Securityholder.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company, the Selling
Securityholders and public officials. The phrase "to the knowledge
of such counsel after investigation" is limited to the actual current
knowledge of the Holland & Knight LLP lawyers, currently with the
firm, who have given substantive attention to matters relating to the
Selling Securityholders' affairs. The phrase also indicates that such
counsel has made reasonable inquiry of the Selling Securityholders.
Such counsel shall also state that the foregoing standard for factual
inquiry is appropriate for counsel to a selling shareholder selling
securities registered under the Act. The opinion shall also state
that as to matters of Florida law, King & Spalding, counsel to the
Underwriters, shall be entitled to rely upon such opinion.
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References to the Registration Statement and the Prospectus in
this paragraph (c) shall include any amendment or supplement thereto
at the date of such opinion.
(d) The Representatives shall have received an opinion,
dated the Firm Closing Date, of King & Spalding, counsel for the
Underwriters, with respect to the issuance and sale of the Firm
Securities, the Registration Statement and the Prospectus, and such
other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass
upon such matters. In rendering such opinion, such counsel may rely as
to all matters of Florida law upon the opinion of Holland & Knight LLP
referred to in paragraphs (b) and (c) above.
(e) The Representatives shall have received from Xxxxx
Xxxxxxxx LLP a letter or letters dated, respectively, the date hereof
and the Firm Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) they are independent accountants with
respect to the Company and its Subsidiaries within the
meaning of the Act and the applicable rules and regulations
thereunder;
(ii) in their opinion, the audited
consolidated financial statements and schedules of the
Company included in the Registration Statement and the
Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published rules and regulations;
(iii) on the basis of their limited review
in accordance with standards established by the American
Institute of Certified Public Accountants of any interim
unaudited consolidated financial statements of the Company and
its subsidiaries included in the Registration Statement and
the Prospectus, carrying out certain specified procedures
(which do not constitute an examination made in accordance
with generally accepted auditing standards) that would not
necessarily reveal matters of significance with respect to the
comments set forth in this paragraph (iii), a reading of the
minute books of the shareholders, the board of directors and
any committees thereof of the Company and its Subsidiaries,
officials of the Company, and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters, nothing came to their attention that
caused them to believe that:
(A) the unaudited consolidated
financial statements, if any, of the Company
and its consolidated Subsidiaries included in
the Registration Statement and the
Prospectus do not comply in form in all
material respects with the applicable
accounting requirements of the Act and the
related published rules and regulations
thereunder or are not in
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conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited consolidated
financial statements included in the
Registration Statement and the Prospectus;
(B) at a specific date not more
than five business days prior to the date of
such letter, there was any change in long-term
or short-term debt of the Company and its
Subsidiaries or any decreases in net current
assets or shareholders' equity of the Company
and its Subsidiaries, in each case compared with
amounts shown on the December 31, 1996 audited
consolidated balance sheet included in the
Registration Statement and the Prospectus, or
for the period from January 1, 1997 to such
specified date there were any decreases, as
compared with the prior comparable period, in
net sales or total or per share amounts of
income before income taxes or net income of the
Company and its Subsidiaries, except in all
instances for changes, decreases or increases
set forth in such letter; and
(iv) they have carried out certain
specified procedures (as requested by the Representatives),
not constituting an audit, with respect to certain amounts,
percentages and financial information that are derived from
the general accounting records of the Company and its
Subsidiaries and are included in the Registration Statement
and the Prospectus, and have compared such amounts,
percentages and financial information with such records
of the Company and its Subsidiaries or with information
derived from such records and have found them to be in
agreement, excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that (A) such letters shall be
accompanied by a written explanation from the Company as to the
significance thereof, unless the Representatives deem such explanation
unnecessary and (B) such changes, decreases or increases do not, in
the sole judgment of the Representatives, make it impractical or
inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended
as of the date hereof.
References to the Registration Statement and the Prospectus in
this paragraph (e) with respect to either letter referred to above
shall include any amendment or supplement thereto at the date of such
letter.
(f) The Representatives shall have received a certificate,
dated the Firm Closing Date, of the principal executive officer and
the principal financial or accounting officer of the Company to the
effect that:
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(i) the representations and warranties of the
Company in this Agreement are true and correct as if made on
and as of the Firm Closing Date; the Registration Statement,
as amended as of the Firm Closing Date, does not include
any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented as
of the Firm Closing Date, does not include any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and the Company has performed all covenants and
agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement or any amendment thereto has
been issued, and no proceedings for that purpose have been
instituted or threatened or, to the best of the Company's
knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of
which information is given in the Registration Statement and
the Prospectus, (A) the Company and its Subsidiaries
have not sustained any material loss or interference with
their business or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or
governmental proceeding and there has not been any material
adverse change, or any development involving a prospective
material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or
results of operations of the Company and its Subsidiaries; (B)
the Company and its Subsidiaries have not incurred any
material liability or obligation, direct or contingent, nor
entered into any material transaction not in the ordinary
course of business; (C) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital
stock; and (D) there has not been any material change in the
capital stock, short-term debt or long-term debt of the
Company and its consolidated Subsidiaries, except in each case
as described in or contemplated by the Prospectus (exclusive
of any amendment or supplement thereto).
(g) The Representatives shall have received from each
Selling Securityholder and executive officer and director of the
Company an agreement to the effect that such person or entity will not,
directly or indirectly, without the prior written consent of
Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, pledge, grant any option
to purchase or otherwise sell or dispose (or announce any offer, sale,
pledge, offer of sale, contract of sale, grant of an option to purchase
or other sale or disposition) of any shares of Common Stock or any
securities convertible into, or exchangeable or exercisable for, shares
of Common Stock or other
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31
capital stock of the Company, or any right to purchase or acquire
Common Stock or other capital stock of the Company for a period of 90
days after the date of this Agreement.
(h) On or before the Firm Closing Date, the
Representatives and counsel for the Underwriters shall have received
such further certificates, documents or other information as they
may have reasonably requested from the Company.
(i) Prior to the commencement of the offering of the
Securities, the Securities to be issued and sold by the Company
shall have been listed for trading on the Nasdaq National Market.
(j) The Underwriters shall have received a certificate
from each Selling Securityholder, signed by such Selling
Securityholder, dated the Firm Closing Date, to the effect that:
(i) the representations and warranties
of such Selling Securityholder in this Agreement are true and
correct as if made on and as of the Firm Closing Date;
(ii) the Registration Statement, as
amended as of the Firm Closing Date, does not include any
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented as
of the Firm Closing Date, does not include any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statement therein, in the
light of the circumstances under which they were made, not
misleading; and
(iii) such Selling Securityholder has
performed all covenants and agreements on his or its part to
be performed or satisfied at or prior to the Firm Closing
Date.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
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32
8. Indemnification and Contribution.
(a) The Company and each Selling Securityholder (except as provided
in Section 8(e)) jointly and severally agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of 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 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made
by the Company or such Selling Securityholder in Section 2 of
this Agreement,
(ii) any untrue statement or alleged untrue statement of
any material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the
Company or such Selling Securityholder or based upon written
information furnished by or on behalf of the Company or the Selling
Securityholder filed in any jurisdiction in order to qualify the
Securities under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange
(each an "Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application a material fact required to be stated
therein or necessary to make the statements therein not misleading or
(iv) any untrue statement or alleged untrue statement of
any material fact contained in any audio or visual materials
supplied by the Company to be used in connection with the marketing of
the Securities, including without limitations, slides, videos, films
and tape recordings,
and will reimburse, as incurred, 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, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company and the
Selling Securityholders will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
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33
specifically for use therein; and provided, further, that neither the Company
nor the Selling Securityholders will be liable to any Underwriter or any person
controlling such Underwriter with respect to any such untrue statement or
omission made in any Preliminary Prospectus that is corrected in the Prospectus
(or any amendment or supplement thereto) if the person asserting any such loss,
claim, damage or liability purchased Securities from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented) at or
prior to the written confirmation of the sale of such Securities to such person
in any case where such delivery of the Prospectus (as amended or supplemented)
is required by the Act, unless such failure to deliver the Prospectus (as
amended or supplemented) was a result of a noncompliance by the Company with
Sections 5(a)(iv) and (v) of this Agreement. This indemnity agreement will be
in addition to any liability which the Company and the Selling Securityholders
may otherwise have. Neither the Company nor such Selling Securityholders will,
without the prior written consent of the Underwriter or Underwriters
purchasing, in the aggregate, more than fifty percent (50%) of the Securities,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any such Underwriter or
any person who controls any such Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act is a party to such claim, action,
suit or proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, each Selling Securityholder and each person,
if any, who controls the Company or any Selling Securityholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which the Company, any such director
or officer of the Company, such Selling Securityholder or any such controlling
person of the Company or such Selling Securityholder may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or any Application or
(ii) the omission or the alleged omission to state therein a material fact
required to be stated in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representatives specifically for
use therein; and, subject to the limitation set forth immediately preceding
this clause, will reimburse, as incurred, any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person or such Selling Securityholder in connection with investigating or
defending any such loss, claim, damage,
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34
liability or any action in respect thereof. 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 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 8. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that 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 one or more
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such indemnified
party or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in
any one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are
parties to such action or actions) or (ii) the indemnifying party does not
promptly retain counsel satisfactory to the indemnified party or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not
be liable for the costs and expenses of any settlement of such action effected
by such indemnified party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 8 is unavailable or insufficient,
for any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate
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to reflect (i) the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party on the other from the
offering of the Securities or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, not only such relative
benefits but also the relative fault of the indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Securityholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (before deducting expenses) received by the
Company and the Selling Securityholders bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault of
the parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company, the Selling Securityholders or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct
or prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company, the Selling Securityholders and
the Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to above in this paragraph (d). Notwithstanding any
other provision of this paragraph (d), no Underwriter shall be obligated to
make contributions hereunder that in the aggregate exceed the total public
offering price of the Securities purchased by such Underwriter under this
Agreement, less the aggregate amount of any damages that such Underwriter has
otherwise been required to pay in respect of the same or any substantially
similar claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint, and contributions
among Underwriters shall be governed by the provisions of the Prudential
Securities Incorporated Master Agreement Among Underwriters. For purposes of
this paragraph (d), each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement and
each person, if any, who controls the Company or any Selling Securityholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
shall have the same rights to contribution as the Company or such Selling
Securityholder, as the case may be.
(e) The liability of each Selling Securityholder under the
representations and warranties contained in Sections 2 and 3 hereof and under
the indemnity and contribution agreements contained in the provisions of this
Section 8 shall be limited to an amount equal to the public offering price of
the Securities to be sold by such Selling Securityholder to the
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Underwriters minus the amount of the underwriting discount paid thereon to the
Underwriters by such Selling Securityholder.
9. Default of Underwriters. If one or more Underwriters default
in their obligations to purchase Firm Securities or Option Securities hereunder
and the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or
Option Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase. If one or more Underwriters so default with respect to an
aggregate number of Securities that is more than ten percent of the aggregate
number of Firm Securities or Option Securities, as the case may be, to be
purchased by all of the Underwriters at such time hereunder, and if
arrangements satisfactory to the Representatives are not made within 36 hours
after such default for the purchase by other persons (who may include one or
more of the non-defaulting Underwriters, including the Representatives) of the
Securities with respect to which such default occurs, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or
the Company other than as provided in Section 10 hereof if the default is with
respect to the Firm Closing Date and without liability for the Option Shares if
such default is with respect to the Option Closing Date. In the event of any
default by one or more Underwriters as described in this Section 9, the
Representatives shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 3
hereof for not more than seven business days in order that any necessary
changes may be made in the arrangements or documents for the purchase and
delivery of the Firm Securities or Option Securities, as the case may be. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 9. Nothing herein shall relieve any
defaulting Underwriter from liability for its default.
10. Default by Selling Securityholders. If on the Firm Closing
Date or Option Closing Date any Selling Securityholder fails to sell the
Selling Securityholders' Firm Securities, which such Selling Securityholder has
agreed to sell on such date as set forth herein, the Company agrees that it
will sell that number of shares of Common Stock to the Underwriters which
represents the Selling Securityholders' Firm Securities which such Selling
Securityholder has failed to so sell, or such lesser number as may be requested
by you.
11. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company and its
officers, the Selling Securityholders and the several Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
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investigation made by or on behalf of the Company, any of its officers or
directors, any Selling Securityholders, any Underwriter or any controlling
person referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
12. Termination.
(a) This Agreement may be terminated with respect to the Firm
Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company or the Selling Securityholders given
prior to the Firm Closing Date or the related Option Closing Date,
respectively, in the event that the Company or the Selling Securityholders
shall have failed, refused or been unable to perform all obligations and
satisfy all conditions on their part to be performed or satisfied hereunder at
or prior thereto or, if at or prior to the Firm Closing Date or such Option
Closing Date, respectively,
(i) the Company or any of its subsidiaries shall have, in
the sole judgment of the Representatives, sustained any material loss
or interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or
governmental proceeding or there shall have been any material adverse
change, or any development involving a prospective material adverse
change (including without limitation a change in management or control
of the Company), in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, except in each case as described in or contemplated by
the Prospectus (exclusive of any amendment or supplement thereto);
(ii) trading in the Common Stock shall have been suspended
by the Commission or the Nasdaq National Market;
(iii) trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market shall have been suspended or
minimum or maximum prices shall have been established on any such
exchange or market system;
(iv) a banking moratorium shall have been declared by New
York or United States authorities; or
(v) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed
conflict involving the United States or (C) any other calamity or
crisis or material adverse change in general economic, political or
financial conditions having an effect on the United States financial
markets that, in the sole judgment of the Representatives, makes it
impractical or inadvisable to proceed with the public offering
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or the delivery of the Securities as contemplated by the Registration
Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 12
shall be without liability of any party to any other party except as provided
in Section 11 hereof.
13. Information Supplied by Underwriters. The statements set forth
in the last paragraph on the front cover page and in the first and third
paragraphs under the heading "Underwriting" in any Preliminary Prospectus or
the Prospectus (to the extent such statements relate to the Underwriters)
constitute the only information furnished by any Underwriter through the
Representatives to the Company for the purposes of Sections 2(a)(ii) and 8
hereof. The Underwriters confirm that such statements (to such extent) are
correct.
14. Notices. All communications hereunder shall be in writing and,
if sent to any of the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; if sent to the Company, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to the Company at
00000 XxXxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, Attention: Chief Operating
Officer; if sent to the Selling Securityholders shall be delivered or sent by
mail, telex or facsimile transmission and confirmed in writing to Xxxxxxx X.
Xxxxx and Xxxx X. Xxxxxx, as Attorneys-in-Fact, at 00000 XxXxxxxxx Xxxxx,
Xxxxx, Xxxxxxx 00000.
15. Successors. This Agreement shall inure to the benefit of and
shall be binding upon the several Underwriters, the Company, the Selling
Securityholders and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that (i) the indemnities of the
Company and the Selling Securityholders contained in Section 8 of this
Agreement shall also be for the benefit of any person or persons who control
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and (ii) the indemnities of the Underwriters contained in
Section 8 of this Agreement shall also be for the benefit of the directors of
the Company, the officers of the Company who have signed the Registration
Statement and any person or persons who control the Company or the Selling
Securityholders within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act. No purchaser of Securities from any Underwriter shall be
deemed a successor because of such purchase.
16. Applicable Law. The validity and interpretation of this
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
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17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company, the
Selling Securityholders and each of the several Underwriters.
Very truly yours,
REPTRON ELECTRONICS, INC.
By: ________________________________
Name:
Title:
SELLING SECURITYHOLDERS
By: _________________________________
_______________, as attorney-in-fact
for the Selling Securityholders
listed in Schedule 2 attached
hereto
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first above written.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXXX INC.
XXXXXXX & COMPANY, INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By: ____________________________
Name:
Title:
For itself and on behalf of the Representatives.
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SCHEDULE 1
UNDERWRITERS
Number of Firm
Securities to
Underwriter be Purchased
----------- ---------------
Prudential Securities Incorporated . . . . . . . . . . . . . .
Xxxxxx X. Xxxxx & Co. Incorporated . . . . . . . . . . . . . .
Xxxxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx & Company, Inc. . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . 2,200,000
---------
42
SCHEDULE 2
SELLING SECURITYHOLDERS
Number of Firm
Securities to
Selling Securityholder be Purchased
---------------------- --------------
Xxxxxxx X. Xxxxx . . . . . . . . . . . . . . . . . . . . . . . .
[List entities selling shares on behalf of Xxxxxxx X. Xxxxx]
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . 800,000
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