EXHIBIT 1
5,511,076 Shares/1/
ACXIOM CORPORATION
Common Stock
UNDERWRITING AGREEMENT
______________ , 1999
ABN AMRO Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
PaineWebber Incorporated
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxxx Inc.
As Representatives of the
several Underwriters named
in Schedule I hereto
c/o ABN AMRO Incorporated
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Pursuant to the terms of this Underwriting Agreement (this "Agreement"),
Acxiom Corporation, a Delaware corporation (the "Company"), proposes, subject to
the terms and conditions set forth herein, to sell an aggregate of 1,500,000
shares of Common Stock, par value $0.10 per share (the "Common Stock"), of the
Company to the several underwriters named in Schedule I hereto (collectively,
the "Underwriters") and the stockholders of the Company named in Schedule II
hereto (the "Selling Stockholders") propose, subject to the terms and conditions
set forth herein, to sell to the Underwriters an aggregate of 4,011,076 shares
of Common Stock. The Company has agreed to sell the several Underwriters, upon
the terms and conditions set forth in Section 2 hereof, up to an additional
800,000 shares of Common Stock. The aggregate of 5,511,076 shares to be sold by
the Company and the Selling Stockholders are herein called the "Firm Shares" and
the 800,000 additional shares to be sold by the Company are herein called the
"Additional Shares." The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares." ABN AMRO Incorporated, Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney Inc., Xxxxxxx Xxxxx &
Company, L.L.C., PaineWebber Incorporated, Xxxxxx X. Xxxxx & Co. Incorporated,
and Xxxxxxxx Inc. are acting individually and as
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/1/ Plus an option to purchase up to 800,000 Additional Shares to cover over-
allotments
representatives of the several Underwriters and in such capacity are hereinafter
referred to as the "Representatives."
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company, the Selling Stockholders and the Representatives
shall enter into an agreement substantially in the form of Exhibit A hereto (the
"Pricing Agreement"). The Pricing Agreement may take the form of an exchange of
any standard form of written telecommunication between the Company, the Selling
Stockholders and the Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Shares will
be governed by this Agreement, as supplemented by the Pricing Agreement. From
and after the date of the execution and delivery of the Pricing Agreement, this
Agreement shall be deemed to incorporate the Pricing Agreement.
The Company and the Selling Stockholders are advised by the Representatives
that the Underwriters have agreed to make a public offering of their respective
portions of the Shares as soon after the Registration Statement (as defined in
Section 1(a)(i) below) has become effective and the Pricing Agreement has been
executed as in the judgment of the Representatives is advisable and to first
offer the Shares upon the terms set forth in the Prospectus (as defined in
Section 1(a)(i) below).
The Company, the Selling Stockholders, the Representatives and the other
Underwriters hereby agree to the following matters with respect to the purchase
and sale of the Shares:
Section 1. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company represents and warrants to each Underwriter that:
(i) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Act"), a registration
statement on Form S-3 (File No. 333-______), including a preliminary
prospectus, relating to the Shares and certain amendments thereto. The
Company will next file with the Commission one of the following: (A) prior
to effectiveness of such registration statement, a further amendment
thereto, including the form of final prospectus, (B) a final prospectus in
accordance with Rules 430A and 424(b) under the Act or (C) a term sheet
(the "Term Sheet") as described in and in accordance with Rules 434 and
424(b) under the Act. As filed, the final prospectus, if one is used, or
the Term Sheet and the latest Preliminary Prospectus, if a final prospectus
is not used, shall include all Rule 430A Information (as defined below).
There have been or will promptly be delivered to you three signed copies of
such registration statement and amendments, together with three copies of
all documents incorporated by reference therein, three copies of each
exhibit filed therewith, and conformed copies of such registration
statement and amendments (but without exhibits) and of the related
preliminary prospectus or prospectuses and final forms of prospectus or
Term Sheet, if a Term Sheet is used, for each of the Underwriters. The term
"Registration
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Statement" as used in this Agreement shall mean such registration statement
at the time such registration statement becomes effective and, in the event
any amendment thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as so
amended; provided, however, that such term shall also include all Rule 430A
Information deemed to be included in such registration statement at the
time such registration statement becomes effective as provided by Rule 430A
and, if a Term Sheet is used, shall also include all information deemed to
be included in such registration statement at the time such registration
statement becomes effective as provided by Rule 434; provided, further,
that if the Company files a registration statement under the Act to
register a portion of the Shares and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission
(the "Rule 462 Registration Statement"), then any reference to
"Registration Statement" herein shall be deemed to be to both the
registration statement referred to above (No. 333-_______) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the Act. The term "Preliminary Prospectus" as used in this
Agreement shall mean any preliminary prospectus relating to the Shares
filed with the Commission under the Act and the rules and regulations
thereunder, including any preliminary prospectus included in the
Registration Statement at the time it becomes effective that omits Rule
430A Information. The term "Prospectus" as used in this Agreement shall
mean: (X) the prospectus relating to the Shares in the form in which it is
first filed with the Commission pursuant to Rule 424(b) under the Act; (Y)
if a Term Sheet is not used and no filing pursuant to Rule 424(b) under the
Act is required, the form of final prospectus included in the Registration
Statement at the time the Registration Statement becomes effective; or (Z)
if a Term Sheet is used in lieu of a prospectus, the Term Sheet in the form
in which it is first filed with the Commission pursuant to Rule 424(b)
under the Act, together with the latest Preliminary Prospectus included in
the Registration Statement at the time it becomes effective (such Term
Sheet and Preliminary Prospectus are sometimes collectively referred to
herein as the "Rule 434 Prospectus"). The term "Rule 430A Information" as
used in this Agreement shall mean information with respect to the Shares
and the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A under the Act.
The Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder are hereinafter collectively
referred to as the "Exchange Act." Any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Form S-3 under the
Act ("Incorporated Documents"), as of the date of such Preliminary
Prospectus or Prospectus, as the case may be. The Incorporated Documents,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(ii) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus
complied in all
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material respects when so filed with the requirements of the Act (except to
the extent that, in conformity with the Act, such Preliminary Prospectus is
subject to completion).
(iii) The Registration Statement in the form in which it becomes
effective and also in such form as it may be when the Pricing Agreement is
executed or any post-effective amendment to the Registration Statement
shall become effective, and the Prospectus when and in the form last filed
with the Commission as part of the Registration Statement prior to
effectiveness or, if applicable, first filed pursuant to Rule 424(b) under
the Act, and when any supplement or amendment thereto is filed with the
Commission, each will comply in all material respects with the requirements
of the Act, will not at any such time contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. This
representation and warranty does not apply to statements in or omissions
from the Registration Statement or the Prospectus (or any supplement or
amendment thereto) made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by or on
behalf of such Underwriter through the Representatives specifically for use
in the Registration Statement.
(iv) There is no contract or other document of a character required to
be described in the Registration Statement or Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required.
(v) The accountants, including KPMG LLP and PricewaterhouseCoopers
LLP, who have expressed their opinions with respect to certain of the
financial statements of the Company or any of its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus,
are independent public accountants as required by the Act.
(vi) The consolidated financial statements, together with the notes
thereto, of the Company included or incorporated by reference in the
Registration Statement and the Prospectus comply in all material respects
with the Act and present fairly the consolidated financial position of the
Company as of the dates indicated, and the consolidated results of
operations, cash flows and changes in financial position of the Company for
the periods specified. The consolidated financial statements, together with
the notes thereto, of May & Xxxx, Inc. ("May & Xxxx") included or
incorporated by reference in the Registration Statement and the Prospectus
comply in all material respects with the Act and present fairly the
consolidated financial position of May & Xxxx as of the dates indicated,
and the consolidated results of operations, cash flows and changes in
financial position of May & Xxxx for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire
period involved except to the extent disclosed therein.
(vii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with full
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corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and
Prospectus. The Company is duly qualified to do business as a foreign
corporation and in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except in any such case in which the failure
to so qualify or be in good standing would not have a material adverse
effect upon the business of the Company and its subsidiaries, taken as a
whole; and no proceeding of which the Company has knowledge has been
instituted in any such jurisdiction, revoking, limiting or curtailing, or
seeking to revoke, limit or curtail, such power and authority or
qualification.
(viii) The only subsidiaries of the Company are the subsidiaries
listed on Exhibit 21 to the Company's Annual Report on Form 10-K for the
fiscal year ended March 31, 1999. Each of the Company's subsidiaries has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with full
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and
Prospectus. Each of the Company's subsidiaries is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction in
which the ownership or leasing of its properties or the conduct of its
business requires such qualification, except in any such case in which the
failure to so qualify or be in good standing would not have a material
adverse effect on the business of the Company and its subsidiaries, taken
as a whole. Each of the Company's subsidiaries has all authorizations,
approvals, orders, certificates and permits of and from all state, federal
and other regulatory officials and bodies necessary to own its properties
and to conduct its business as described in the Registration Statement and
Prospectus, except where the failure to have any such authorization,
approval, order, certificate or permit would not have a material adverse
effect on the business affairs, business prospects, properties, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole. Except for the capital stock of the subsidiaries and
except as otherwise described in the Prospectus, the Company does not own
any capital stock of, or other securities evidencing a material equity
interest in, any corporation, partnership or other entity. All of the
issued and outstanding shares of capital stock of the Company's
subsidiaries have been duly and validly authorized and issued, are fully
paid and non-assessable, and except as described in the Prospectus, are
owned by the Company, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature. Except as described in the
Prospectus, there are no outstanding subscriptions, rights, warrants or
options to acquire, or instruments convertible into or exchangeable for,
any shares of capital stock of any of the Company's subsidiaries.
(ix) The Company has an authorized and outstanding capitalization as
set forth in the Prospectus and the Shares conform to the description
thereof contained in the Prospectus. Except as described in the Prospectus,
all of the issued and outstanding shares of Common Stock (including the
Shares to be sold by the Selling Stockholders to the Underwriters) have
been duly authorized and validly issued and are fully paid and non-
assessable and free of preemptive or other similar rights. At Closing, all
of the issued and
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outstanding shares of Common Stock (including the Shares to be sold by the
Selling Stockholders to the Underwriters) will have been duly authorized
and validly issued and will be fully paid and non-assessable and, except as
described in the Prospectus, free of preemptive or other similar rights.
There are no options, agreements, contracts or other rights in existence to
acquire from the Company any shares of Common Stock, except as set forth in
the Prospectus.
(x) The Shares to be sold by the Company pursuant to this Agreement
and the Pricing Agreement have been duly authorized and, when issued and
paid for in accordance with this Agreement and the Pricing Agreement, will
be validly issued, fully paid and non-assessable; the holders of the Shares
will not be subject to personal liability by reason of being such holders;
except as disclosed in the Prospectus, there are no holders of securities
of the Company having rights, contractual or otherwise, to registration
thereof or preemptive rights to purchase Common Stock; all corporate
actions required to be taken for the authorization, issue and sale of the
Shares have been validly and sufficiently taken; and upon delivery of and
payment for such Shares hereunder, the Underwriters will acquire valid and
marketable title thereto, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature.
(xi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
or contemplated therein, there has not been (A) any material adverse change
in the condition (financial or otherwise), earnings, affairs, business or
prospects of the Company and its subsidiaries, taken as a whole, whether or
not arising in the ordinary course of business, (B) any material
transaction entered into, or any material liability or obligation incurred,
by the Company or its subsidiaries other than in the ordinary course of
business, (C) any change in the capital stock (other than as a result of
certain issuances of Common Stock by the Company in connection with the
Company's employee benefit plans), or material increase in the short-term
debt or long-term debt of the Company or its subsidiaries, or (D) any
dividend or distribution of any kind declared, paid or made by the Company
or its subsidiaries on its capital stock.
(xii) The Company and each of its subsidiaries have good and
marketable title to all properties and assets reflected as owned in the
financial statements hereinabove described or described in the Prospectus
as owned by them, free and clear of all liens, charges, encumbrances or
restrictions of any kind, except such as are referred to in such financial
statements or the Prospectus or which are not material to the business of
the Company and its subsidiaries, taken as a whole; all of the leases and
subleases material to the business of the Company and its subsidiaries,
taken as a whole or under which the Company or its subsidiaries holds
properties are in full force and effect; and neither the Company nor any of
its subsidiaries has received any notice of any material claim of any sort
which has been asserted by anyone adverse to the rights of the Company or
any subsidiary as owner or as lessee or sublessee under any of the leases
or subleases mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to
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the continued possession of the leased or subleased premises under any such
lease or sublease.
(xiii) Neither the Company nor any of its subsidiaries is in default
in the observance of any provision of its Certificate of Incorporation or
by-laws, or in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or any of its properties may be bound, the effect of which could
be materially adverse to the condition (financial or otherwise), earnings,
affairs, business or prospects of the Company and its subsidiaries, taken
as a whole.
(xiv) The execution and delivery of this Agreement and the Pricing
Agreement, the issuance and delivery of the Shares, the consummation of the
transactions contemplated herein and in the Registration Statement and
compliance with the terms of this Agreement and the Pricing Agreement have
been duly authorized by all necessary corporate action and will not result
in any violation of the Certificate of Incorporation or by-laws of the
Company or any of its subsidiaries, and will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge,
encumbrance or restriction of any kind upon any property or assets of the
Company or any of its subsidiaries under any contract, indenture, mortgage,
loan agreement, note, 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 any existing applicable law, rule, regulation, judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or
any of their respective properties. No approval, authorization or consent
of any court, regulatory body, administrative agency or other governmental
body having jurisdiction over the Company or any of its subsidiaries is
required in connection with the execution of this Agreement, the Pricing
Agreement or the sale of the Shares to the Underwriters, except such as may
be required under the Act, state securities or Blue Sky laws or from the
clearance of the offering with the National Association of Securities
Dealers, Inc. (the "NASD").
(xv) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, or any arbitrator or
arbitration panel, now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
which could result in any material adverse change to the condition
(financial or otherwise), earnings, affairs, business or prospects of the
Company and its subsidiaries, taken as whole; and there is no decree,
judgment or order of any kind in existence against or restraining the
Company or any of its subsidiaries, or any of their respective officers,
employees or directors, from taking any actions of any kind in connection
with the business of the Company or any such subsidiary.
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(xvi) The Company and each of its subsidiaries own or possess or have
obtained all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the case
may be, and to operate their properties and to carry on their businesses as
presently conducted, and neither the Company nor any such subsidiary has
received any notice of proceedings related to revocation or modification of
any such licenses, permits, consents, orders, approvals or authorizations
which singly or in the aggregate, if the subject of an unfavorable ruling
or finding, would be materially adverse to the condition (financial or
otherwise), earnings, affairs, business or prospects of the Company and its
subsidiaries, taken as a whole.
(xvii) The conduct of the business of the Company and each of its
subsidiaries is in compliance with all applicable federal, state and local
laws and regulations that regulate or are concerned in any way with the
business of the Company or such subsidiaries, where the effect of the
failure to comply would be materially adverse to the condition (financial
or otherwise), earnings, affairs, business or prospects of the Company and
its subsidiaries, taken as a whole.
(xviii) The Company together with its subsidiaries owns or possesses,
or can acquire on reasonable terms, all right, title and interest in or to,
or has duly licensed from third parties, all patents, trademarks, service
marks, copyrights, trade names, trade secrets and other proprietary rights
("Trade Rights") necessary to conduct the business now or proposed to be
conducted by it, and neither the Company nor any of its subsidiaries has
received any notice of, and has no knowledge of, infringement of or
conflict with asserted rights of others with respect to any such Trade
Rights which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would be materially adverse to the condition
(financial or otherwise), earnings, affairs, business or prospects of the
Company and its subsidiaries, taken as a whole.
(xix) The Company has filed all tax returns required to be filed and
has paid all taxes which were payable pursuant to said returns or any
assessments with respect thereto, other than any tax returns which the
Company is contesting in good faith or which are not material to the
Company and there is no tax deficiency that has been, or to the knowledge
of the Company might be, asserted against the Company or any of its
properties or assets that would or could be expected to have a material
adverse effect upon the condition (financial or otherwise) or results of
operations of the Company and its subsidiaries, taken as a whole.
(xx) This Agreement has been duly executed and delivered by the
Company.
(xxi) A registration statement relating to the Common Stock has been
declared effective by the Commission pursuant to the Exchange Act and the
Common Stock is duly registered thereunder. The Shares have been authorized
for trading on the Nasdaq Stock Market, subject to notice of issuance or
sale, as the case may be.
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(xxii) The Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment company" as
defined in Section 3(a) of the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(xxiii) All offers and sales of the Company's capital stock prior to
the date hereof were at all relevant times either registered under the Act
or exempt from the registration requirements of the Act and were duly
registered with, or the subject of an available exemption from, the
registration requirements of the applicable state securities or Blue Sky
laws.
(xxiv) The Company has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company.
(xxv) Except as disclosed in the Registration Statement and the
Prospectus, no transaction has occurred between or among the Company, on
the one hand, and any of its officers or directors or any affiliate or
affiliates of any such officer or director, on the other hand, that is
required to be so disclosed, including, but not limited to, any outstanding
loans, advances or guaranties of indebtedness by the Company to or for the
benefit of any affiliates of the Company, or any of the officers or
directors of the Company, or any family member of any of them.
(xxvi) The Company has not, directly or indirectly, at any time (A)
made any contributions to any candidate for foreign political office, or if
made, failed to disclose fully any such contribution made in violation of
law, or (B) made any payment to any state, federal or foreign governmental
officer or official, or other person charged with similar public or quasi-
public duties, other than payments or contributions required or allowed by
applicable law. The Company's internal accounting controls and procedures
are sufficient to cause the Company to comply in all material respects with
the Foreign Corrupt Practices Act of 1977, as amended.
(xxvii) The Company and each of its subsidiaries (a) are in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (b) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (c) are in compliance with
all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(xxviii) The Company has filed all documents and reports required to
be filed with the Commission under the Exchange Act. Such documents or
reports,
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when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and none of such documents
or reports contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(xxix) There are no holders of securities of the Company having
rights to registration thereof or preemptive rights to purchase Common
Stock except as disclosed in the Prospectus and the holders of such
registration rights who are not Selling Stockholders have waived such
rights with respect to the offering being made by the Prospectus.
(b) Representations, Warranties and Covenants of the Selling Stockholders.
(i) The Pritzker Foundation represents and warrants and agrees with
the Company and the Underwriters that:
(A) Such Selling Stockholder is the sole legal and beneficial
owner of and has good and valid title to the Shares proposed to be
sold by such Selling Stockholder hereunder and has full right, power
and authority to enter into this Agreement and the Pricing Agreement
and to sell, assign, transfer and deliver such Shares hereunder, free
and clear of all voting trust arrangements, security interests,
claims, liens, encumbrances, community property rights or adverse
interests of any nature; and upon delivery of and payment for such
Shares hereunder, the Underwriters will acquire valid and marketable
title thereto, free and clear of all voting trust arrangements,
security interests, claims, liens, encumbrances, property rights or
adverse interests of any nature.
(B) The execution and delivery of this Agreement and the
Pricing Agreement, the consummation of the transactions contemplated
herein and in the Registration Statement and compliance with the terms
of this Agreement and the Pricing Agreement have been duly authorized
by all necessary corporate action and will not result in any violation
of the Articles of Incorporation or by-laws of the Selling Stockholder
or any of its subsidiaries, and will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge,
encumbrance or restriction of any kind upon any property or assets of
the Selling Stockholder or any of its subsidiaries under any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Selling Stockholder or any of its subsidiaries
is a party or by which the Selling Stockholder or any of its
subsidiaries, or any of their respective properties, is bound, or any
existing applicable law, rule, regulation, judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Selling Stockholder or any of
its subsidiaries or any of their respective properties. No approval,
authorization or consent of any court,
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regulatory body, administrative agency or other governmental body
having jurisdiction over the Selling Stockholder or any of its
subsidiaries is required in connection with the sale of the Shares by
such Selling Stockholder to the Underwriters, execution and delivery
of this Agreement or the Pricing Agreement or the consummation of the
transactions contemplated herein or therein, except such as may be
required under the Act, state securities or Blue Sky laws or from the
clearance of the offering with the National Association of Securities
Dealers, Inc. (the "NASD").
(C) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might be
reasonably expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(D) The statements in the sections captioned "Prospectus
Summary," "Certain Transactions," and "Selling Stockholders" included
or incorporated by reference in each Preliminary Prospectus, solely
insofar as they relate to such Selling Stockholder, as of the date of
such Preliminary Prospectus, have conformed in all material respects
with the requirements of the Act and, as of its date, have not
included any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein not misleading;
and the Registration Statement at the time of effectiveness, and at
all times subsequent thereto, (x) the statements, in the sections
captioned "Prospectus Summary," "Selling Stockholders" and "Certain
Transactions" included or incorporated by reference in the
Registration Statement and the Prospectus and any amendments or
supplements thereto, solely insofar as they relate to such Selling
Stockholder, and the Registration Statement and the Prospectus and any
amendments or supplements thereto, contained or will contain all
statements that are required to be stated therein in accordance with
the Act and in all material respects conformed or will in all material
respects conform to the requirements of the Act, and (y) neither the
Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, solely insofar as it relates to such statements in
the sections captioned "Prospectus Summary," "Selling Stockholders"
and "Certain Transactions" with respect to such Selling Stockholder,
included or will include any untrue statement of a material fact or
omitted or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that neither clause (x) nor (y) shall have any affect if
information has been given by such Selling Stockholder to the Company
and the Representatives in writing which would eliminate or remedy any
such untrue statement or omission.
(E) Such Selling Stockholder and its affiliates agree with the
Company and the Underwriters not to sell, contract to sell or
otherwise dispose of any Common Stock or rights to purchase Common
Stock for a period of 120
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days after the date of the Pricing Agreement without the prior written
consent from the Representatives.
(F) In order to document the Underwriter's compliance with the
reporting and withholding provisions of the Internal Revenue Code of
1986, as amended, with respect to the transactions herein
contemplated, the Selling Stockholder agrees to deliver to you prior
to or on the Closing Date, as hereinafter defined, a properly
completed and executed United States Treasury Department Form W-8 or
Form W-9 (or other applicable form of statement specified by Treasury
Department regulations in lieu thereof).
(ii) Each [Individual] Selling Stockholder severally represents and
warrants and agrees with the Company and the Underwriters that:
(A) Such Selling Stockholder is the sole legal and beneficial
owner of and has good and valid title to the Shares proposed to be
sold by such Selling Stockholder hereunder and has full right, power,
capacity and authority to enter into this Agreement, the Pricing
Agreement, the Power of Attorney and the Custody Agreement and to
sell, assign, transfer and deliver such Shares hereunder, free and
clear of all voting trust arrangements, security interests, claims,
liens, encumbrances, community property rights or adverse interests of
any nature; and upon delivery of and payment for such Shares
hereunder, the Underwriters will acquire valid and marketable title
thereto, free and clear of all voting trust arrangements, security
interests, claims, liens, encumbrances, property rights or adverse
interests of any nature.
(B) The execution and delivery of this Agreement, the Pricing
Agreement, the Power of Attorney and the Custody Agreement, the
consummation of the transactions contemplated herein and in the
Registration Statement and compliance with the terms of this
Agreement, the Pricing Agreement, the Power of Attorney and the
Custody Agreement and will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge, encumbrance
or restriction of any kind upon any property or assets of the Selling
Stockholder under any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder, or any of
his properties, is bound, or any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction
over the Selling Stockholder or any of his properties. No approval,
authorization or consent of any court, regulatory body, administrative
agency or other governmental body having jurisdiction over the Selling
Stockholder is required in connection with the sale of the Shares to
the Underwriter, execution and delivery of this Agreement, the Pricing
Agreement, the Power of Attorney and the Custody Agreement or
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the consummation of the transactions contemplated herein or therein,
except such as may be required under the Act, state securities or Blue
Sky laws or from the clearance of the offering with the NASD.
(C) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might be
reasonably expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(D) Such Selling Stockholder has executed and delivered a Power
of Attorney ("Power of Attorney") among the Selling Stockholder and
______________[, _________________, and _________________] (the
"Agents"), naming the Agents as such Selling Stockholder's attorneys-
in-fact (and, by the execution by any Agent of this Agreement, such
agent hereby represents and warrants that he has been duly appointed
an attorney-in-fact by the Selling Stockholders pursuant to the Power
of Attorney) for the purpose of entering into and carrying out this
Agreement and the Pricing Agreement, and the Power of Attorney has
been duly executed by such Selling Stockholder and a copy thereof has
been delivered to you.
(E) Such Selling Stockholder further represents and warrants and
agrees that such Selling Stockholder has deposited in custody, under a
Custody Agreement ("Custody Agreement") with ________________________,
as custodian ("Custodian"), certificates in negotiable form for the
Shares to be sold hereunder by such Selling Stockholder, for the
purpose of further delivery pursuant to this Agreement. Such Selling
Stockholder agrees that the Shares to be sold by such Selling
Stockholder on deposit with the Custodian are subject to the interests
of the Company, the Underwriters and the other Selling Stockholders,
that the arrangements made for such custody, and the appointment of
the Agents pursuant to the Power of Attorney, are to that extent
irrevocable, and that the obligations of such Selling Stockholder
hereunder and under the Power of Attorney and the Custody Agreement
shall not be terminated except as provided in this Agreement, the
Power of Attorney or the Custody Agreement by any act of such Selling
Stockholder, by operation of law, whether, in the case of an
individual Selling Stockholder, by the death or incapacity of such
Selling Stockholder or, in the case of a trust or estate, by the death
of the trustee or trustees or the executor or executors or the
termination of such trust or estate, or, in the case of a partnership
or corporation, by the dissolution, winding-up or other event
affecting the legal life of such entity, or by the occurrence of any
other event. If any individual Selling Stockholder, trustee or
executor should die or become incapacitated, or any such trust,
estate, partnership or corporation should be terminated, or if any
other event should occur before the delivery of the Shares hereunder,
the
-13-
documents evidencing Shares then on deposit with the Custodian shall
be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death, incapacity, termination
or other event had not occurred, regardless of whether or not the
Custodian shall have received notice thereof. Each Agent has been
authorized by such Selling Stockholder to execute and deliver this
Agreement and the Pricing Agreement and the Custodian has been
authorized to receive and acknowledge receipt of the proceeds of sale
of the Shares to be sold by such Selling Stockholder against delivery
thereof and to otherwise act on behalf of such Selling Stockholder.
The Custody Agreement has been duly executed by such Selling
Stockholder and a copy thereof has been delivered to you.
(F) The statements in the sections captioned "Prospectus
Summary," "Selling Stockholders" and "Certain Transactions," included
or incorporated by reference in each Preliminary Prospectus solely
insofar as they relate to such Selling Stockholder, as of the date of
such Preliminary Prospectus, have conformed in all material respects
with the requirements of the Act and, as of its date, have not
included any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein not misleading;
and the Registration Statement at the time of effectiveness, and at
all times subsequent thereto, (A) the statements in the sections
captioned "Prospectus Summary," "Selling Stockholders" and "Certain
Transactions" in the Registration Statement and the Prospectus and any
amendments or supplements thereto, solely insofar as they relate to
such Selling Stockholder, and the Registration Statement and the
Prospectus and any amendments or supplements thereto, contained or
will contain all statements that are required to be stated therein in
accordance with the Act and in all material respects conformed or will
in all material respects conform to the requirements of the Act, and
(B) neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, solely insofar as it relates to such
statements in the sections captioned "Prospectus Summary," "Selling
Stockholders" and "Certain Transactions" with respect to such Selling
Stockholder, included or will include any untrue statement of a
material fact or omitted or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided that neither clause (A) nor (B) shall
have any affect if information has been given by such Selling
Stockholder to the Company and the Representatives in writing which
would eliminate or remedy any such untrue statement or omission.
(G) Such Selling Stockholder agrees with the Company and the
Underwriters not to sell, contract to sell or otherwise dispose of any
Common Stock or rights to purchase Common Stock for a period of 120
days after the date of the Pricing Agreement without the prior written
consent from the Representatives.
-14-
(H) In order to document the Underwriter's compliance with the
reporting and withholding provisions of the Internal Revenue Code of
1986, as amended, with respect to the transactions herein
contemplated, the Selling Stockholder agrees to deliver to you prior
to or on the Closing Date, as hereinafter defined, a properly
completed and executed United States Treasury Department Form W-8 or
Form W-9 (or other applicable form of statement specified by Treasury
Department regulations in lieu thereof).
Section 2. Agreement to Sell and Purchase.
(a) Subject to such adjustments to eliminate any fractional share sales or
purchases as the Representatives in their discretion may make, (i) the Company
hereby agrees to issue and sell to the Underwriters an aggregate of 1,500,000
Firm Shares, (ii) the Selling Stockholders hereby agree, severally and not
jointly, to sell to the Underwriters in the respective amounts set forth in
Schedule II hereto, an aggregate of 4,011,076 Firm Shares, and (iii) on the
basis of the representations, warranties and agreements of the Company and the
Selling Stockholders herein contained and subject to the terms and conditions
set forth herein, each Underwriter agrees, severally and not jointly, to
purchase from (A) the Company and the Selling Stockholders, at the purchase
price per Share set forth in the Pricing Agreement (the "Purchase Price per
Share"), the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Firm Shares as such
Underwriter shall be obligated to purchase pursuant to the provisions of Section
9 hereof) and (B) the Selling Stockholders the number of Firm Shares set further
opposite the name of such Selling Stockholder in Schedule II hereto.
(b) The Company agrees to sell to the Underwriters and, on the basis of
the representations, warranties and agreements of the Company and the Selling
Stockholders set forth herein and subject to the terms and conditions set forth
herein, the Underwriters shall have the right to purchase, severally and not
jointly, from the Company up to 800,000 Additional Shares, at the Purchase Price
per Share upon delivery to the Company of the notice hereinafter referred to.
Such Additional Shares may be purchased solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Company and the Stockholders, the number of
Additional Shares (subject to such adjustments to eliminate fractional Shares as
the Representatives may determine) which bears the same proportion to the total
number of Additional Shares to be purchased from the Company as the number of
Firm Shares set forth opposite such Underwriter's name in Schedule I (or such
number of Firm Shares increased pursuant to the terms set forth in Section 9
hereof) bears to the total number of Firm Shares.
Section 3. Delivery of the Shares and Payment Therefor.
(a) Delivery to the Underwriters of the Firm Shares shall be made against
payment therefor at 9:00 a.m., Chicago, Illinois time, on the third full
business day following the date of the Pricing Agreement (the "Closing Date") at
the offices of XxXxxxxxx, Will & Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx. The place of the Closing and the Closing Date may be varied by
agreement among the Representatives and the Company.
-15-
(b) Delivery to the Underwriters of any Additional Shares to be purchased
by the several Underwriters shall be made in Chicago, Illinois against payment
therefor at the offices of XxXxxxxxx, Will & Xxxxx, 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx at such time on such date (the "Option Closing Date"), which
may be the same as the Closing Date, but shall in no event be earlier than the
Closing Date nor earlier than three nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in written
notice from the Representatives to the Company and the Agents of the
determination to purchase a number, specified in said notice, of Additional
Shares. Said notice may be given at any time within 30 days after the date of
the execution of the Pricing Agreement. The place of the Closing and the Option
Closing Date may be varied by agreement among the Representatives and the
Company.
(c) If the Representatives, the Company and the Selling Stockholders have
elected to enter into the Pricing Agreement after the Registration Statement is
effective, the Purchase Price per Share to be paid by the several Underwriters
for the Shares shall be an amount equal to the initial public offering price,
less an amount to be determined by agreement between the Representatives, the
Selling Stockholders and the Company. The initial public offering price per
Share of the Shares shall be a fixed price to be determined by agreement between
the Representatives and the Company. The initial public offering price and the
Purchase Price per Share, when so determined, shall be set forth in the Pricing
Agreement. If such prices have not been agreed upon and the Pricing Agreement
has not been executed and delivered by all parties thereto by the close of
business on the fourth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any party to any other
party, unless otherwise agreed to by the Company, the Selling Stockholders and
the Representatives and except as otherwise provided in Section 5 hereof. If the
Representatives, the Company and the Selling Stockholders have elected to enter
into the Pricing Agreement prior to the Registration Statement becoming
effective, the initial public offering price and the Purchase Price per Share to
be paid by the several Underwriters for the Shares having each been determined
and set forth in the Pricing Agreement, the Company agrees to file an amendment
to the Registration Statement and the Prospectus before the Registration
Statement becomes effective.
(d) Certificates for the Firm Shares and for the Additional Shares shall
be registered in such names and in such denominations as the Representatives
shall request upon at least 48 hours prior notice to the Company, the Selling
Stockholders and the Custodian preceding the Closing Date or the Option Closing
Date, as the case may be. Such certificates shall be made available to the
Representatives at the office of The Depository Trust Company, New York, New
York, for inspection and packaging not later than at least 24 hours prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and the Additional Shares shall be delivered to the
Representatives on the Closing Date or the Option Closing Date, as the case may
be, with any transfer taxes thereon duly paid by the Company or the Selling
Stockholders, as the case may be, for the respective accounts of the several
Underwriters, against payment of the purchase price therefor by wire or other
immediately available funds by wire transfer in federal (same day) funds,
subject to change by written agreement of the Company and the Representatives.
It is understood by the Company and the Selling Stockholders that each of the
Underwriters has authorized the Representatives, for its account, to accept
delivery of, receipt for and make payment of the purchase price for, the Shares
it has agreed to purchase.
Section 4. Agreements of the Company. The Company covenants and agrees
with the several Underwriters that:
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(a) The Company will endeavor to cause the Registration Statement to
become effective and will advise the Representatives promptly and, if
requested by the Representatives, will confirm such advice in writing, (i)
when the Registration Statement has become effective and when any post-
effective amendment to it becomes effective, and of the filing of any final
prospectus or supplement or amendment to the Prospectus, (ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or Prospectus or any Preliminary Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation or contemplation of any proceeding for such
purposes, and (iv) within the period of time referred to in paragraph (f)
below, of the happening of any event which makes any statement made in the
Registration Statement or Prospectus (as then amended or supplemented)
untrue in any material respect or which requires the making of any
additions to or changes in the Registration Statement or Prospectus (as
then amended or supplemented) in order to make the statements therein not
misleading or the necessity to amend or supplement the Prospectus to comply
with the Act or any other law. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration Statement,
the Company will make every reasonable effort to obtain the withdrawal of
such order at the earliest possible moment. If the Company elects to rely
on Rule 434 of the Act, the Company will prepare a Term Sheet that complies
with the requirements of Rule 434 of the Act and will provide the
Representatives with copies of the form of Rule 434 Prospectus in such
numbers as you may reasonably request and file or transmit for filing with
the Commission the form of Prospectus complying with Rule 434(c)(2) of the
Act in accordance with Rule 424(b) of the Act by the close of business in
Chicago on the business day immediately succeeding the date hereof. If the
Company elects not to rely on Rule 434, the Company will provide you with
copies of the form of Prospectus in such numbers as you may reasonably
request and file or transmit for filing with the Commission such Prospectus
in accordance with Rule 424(b) of the Act, by the close of business in
Chicago on the business day immediately succeeding the date hereof.
(b) If, at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance
upon Rule 430A under the Act, then promptly following the execution of the
Pricing Agreement, the Company will prepare and file with the Commission,
in accordance with Rule 430A and Rule 424(b) under the Act, copies of an
amended Prospectus, or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including an amended Prospectus)
containing all information so omitted.
(c) Neither the Company nor any of its subsidiaries will, prior to
the earlier of the Option Closing Date or termination or expiration of the
related option, incur any liability or obligation, direct or contingent, or
enter into any material transaction, other than in the ordinary course of
business, except as contemplated in the Prospectus.
-17-
(d) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which
the Representatives shall not previously have been advised or to which the
Representatives shall promptly after being so advised reasonably object in
writing.
(e) Prior to the effective date of the Registration Statement, the
Company has delivered or will deliver to each of the Underwriters, without
charge, copies of each form of Preliminary Prospectus in such quantities as
they have reasonably requested or may hereafter reasonably request. The
Company consents to the use, in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by dealers, prior to the
effective date of the Registration Statement, of each Preliminary
Prospectus so furnished by the Company.
(f) On the effective date of the Registration Statement and
thereafter from time to time during such period as in the opinion of
counsel for the Underwriters a prospectus relating to the Shares is
required by law to be delivered in connection with offers or sales of the
Shares by an Underwriter or a dealer, the Company will deliver to each
Underwriter and dealer, without charge, as many copies of the Registration
Statement, the Prospectus and each Preliminary Prospectus and the
Incorporated Documents (and of any amendment or supplement to such
documents) as they may reasonably request. During such period, if any event
occurs which in the judgment of the Company, or in the opinion of counsel
for the Underwriters, should be set forth in the Prospectus in order to
ensure that no part of the Prospectus includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances at the time the
Prospectus is delivered to a purchaser, not misleading, the Company will
forthwith prepare, submit to the Representatives, file with the Commission
and deliver, without charge to the several Underwriters and dealers (whose
names and addresses will be furnished by the Representatives to the
Company) to whom shares have been sold by the Underwriters or to other
dealers any amendments or supplements to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will comply
with the standards set forth in this sentence. The Company consents to the
use of such Prospectus (and of any amendments or supplements thereto) in
accordance with the provisions of the Act and with the securities or Blue
Sky laws of the jurisdictions described in the preliminary Blue Sky
memorandum in which the Shares are lawfully offered by the several
Underwriters and by all dealers to whom Shares may be sold, both in
connection with the offering or sale of the Shares and for such period of
time thereafter as the Prospectus is required by law to be delivered in
connection therewith. In case any Underwriter is required to deliver a
Prospectus (and any amendment or supplement thereto) more than nine months
after the first date upon which the Shares are offered to the public, the
Company will, upon request, but at the expense of such Underwriter,
promptly prepare and furnish such Underwriter with reasonable quantities of
a Prospectus complying with Section 10(a)(3) of the Act.
-18-
(g) The Company will cooperate with the Representatives and counsel
for the Underwriters in connection with the registration or qualification
of the Shares for offer and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as the
Representatives may designate, will continue such registrations or
qualifications in effect so long as reasonably required for the
distribution of the Shares and will file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; provided that in no event shall the Company
be obligated (i) to qualify to do business in any jurisdiction where it is
not now so qualified, (ii) to file any general consent to service of
process, or (iii) take any action that would subject it to income taxation
in any jurisdiction where it is not so qualified.
(h) For a period of five years after the date of the Pricing
Agreement:
(i) the Company will furnish to the Representatives (A) as soon
as available, a copy of each report of the Company of general interest
mailed to any class of its security holders (B) copies of all annual
reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K and any amendment thereto or such other similar forms as
may be designated by the Commission and (C) from time to time, such
other information concerning the Company as the Representatives may
reasonably request;
(ii) if at any time during such five year period, the Company
shall cease filing with the Commission the annual reports and current
reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to
in clause (i) above, the Company will forward to its stockholders
generally and the Representatives and upon request to each of the
other Underwriters (A) as soon as practicable after the end of each
fiscal year, copies of a balance sheet and statements of income and
retained earnings of the Company as of the end of and for such fiscal
year, certified by independent public accountants, and (B) as soon as
practicable after the end of each quarterly fiscal period, except for
the last quarterly fiscal period in each fiscal year, a summary
statement (which need not be certified) of income and retained
earnings of the Company for such period, which shall also be made
publicly available; and
(iii) the Company will furnish to the Representatives and to the
NASD, and by issuance of a press release, on the date of declaration,
notice of all dividends, including the amount and medium of payment,
the record date (which shall be not less than ten days subsequent to
the declaration date) and the payment date (which shall be not less
than ten days subsequent to the record date).
(i) The Company will make generally available to its security holders
an earnings statement of the Company, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement
-19-
and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including Rule 158).
(j) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than by notice given by the Representatives'
termination of this Agreement pursuant to Section 10 hereof), or if this
Agreement shall be terminated by the several Underwriters because of any
failure or refusal on the part of the Company to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the several Underwriters for all out-of-pocket expenses
(including reasonable fees and expenses of counsel for the Underwriters)
reasonably incurred by them in connection herewith but without any further
obligation of the Company for lost profits or otherwise. If this Agreement
is terminated pursuant to Section 10 hereof, the several Underwriters shall
themselves bear any such out-of-pocket expenses incurred by them.
(k) The Company will not sell, contract to sell or otherwise dispose
of any Common Stock or rights to purchase Common Stock (other than in
connection with any acquisition and the granting of employee stock options
in the ordinary course of business) for a period of 120 days after the date
of the Pricing Agreement without the prior written consent of ABN AMRO
Incorporated. The Company will also obtain similar agreements from each of
its executive officers and directors.
Section 5. Payment of Expenses. The Company will pay, or reimburse if
paid by the Representatives, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and expenses incident
to the performance by it of its obligations under this Agreement and the Pricing
Agreement, including, without limiting the generality of the foregoing, (a)
preparation, printing, filing and distribution (including postage, air freight
charges and charges for counting and packaging) of the original registration
statement, the Registration Statement, each Preliminary Prospectus, the
Prospectus (including any Incorporated Documents, exhibits and financial
statements and any Term Sheet delivered by the Company pursuant to Rule 434 of
the Act), each amendment and/or supplement to any of the foregoing, and this
Agreement, the Pricing Agreement, the Agreement Among Underwriters, Selected
Dealers Agreement, Powers of Attorney and Underwriters' Powers of Attorney and
Questionnaires, (b) furnishing to the several Underwriters and dealers copies of
the foregoing materials (provided, however, that any such copies furnished by
the Company more than nine months after the first date upon which the Shares are
offered to the public shall be at the expense of the several Underwriters or
dealers so requesting as provided in Section 4(f) above), (c) the registrations
or qualifications referred to in Section 4(g) above (including filing fees and
fees and disbursements of counsel in connection therewith) and expenses of
printing and delivering to the several Underwriters copies of the preliminary
and final Blue Sky memoranda, (d) the review of the terms of the public offering
of the Shares by the NASD (including the filing fees paid to the NASD in
connection therewith) and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith, (e) the performance by the Company and
each of the Selling Stockholders of its other obligations under this Agreement,
including the fees of the Company's and, if applicable, each Selling
Stockholder's counsel and accountants, (f) the issuance of the Shares and the
preparation and printing of the stock certificates representing the Shares,
including any stamp taxes payable in connection with the original issuance of
the Shares, but excluding the transfer taxes, if any, with respect to the sale
and delivery of the Shares to the
-20-
Underwriters, which shall be paid by the Selling Stockholders, and (g)
furnishing to the several Underwriters copies of all reports and information
required by Section 4(h) above, including reasonable costs of shipping and
mailing.
Section 6. Conditions of the Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) That the Registration Statement shall have become effective not
later than 1:00 p.m., Chicago time, on the first full business day after
the date of this Agreement, or at such later date and time as shall be
consented to in writing by the Representatives, and, if the Representatives
and the Company have elected to rely upon Rule 430A, the price of the
Shares and any price-related or other information previously omitted from
the effective Registration Statement pursuant to such Rule 430A shall have
been transmitted to the Commission for filing pursuant to Rule 424(b)
within the prescribed time period, and, if the Representatives and the
Company have elected to rely upon a Term Sheet, such Term Sheet shall have
been transmitted to the Commission for filing pursuant to Rule 434 and Rule
424(b) within the prescribed time period, and on or prior to the Closing
Date, the Company shall have provided evidence satisfactory to the
Representatives of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A. No stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
shall be pending or, to the knowledge of the Company or the Selling
Stockholders, shall be contemplated by the Commission and there shall not
have come to the attention of the Representatives any facts that would
cause them to believe that the Prospectus, at the time it was required to
be delivered to purchasers of the Shares, contained any untrue statement of
material fact or omitted to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
there were made, not misleading.
(b) That subsequent to the effective date of the Registration
Statement, (i) there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Company or its subsidiaries not contemplated by the
Prospectus, which, in the Representatives' opinion, as Representatives of
the several Underwriters, would materially adversely affect the market for
the Shares or make it impracticable or inadvisable to proceed with the
offering or the delivery of the Shares, as contemplated herein and in the
Prospectus, or to attempt to enforce contracts for the purchase of Shares,
and (ii) the business and operations of the Company shall not have been
adversely affected by strike, fire, flood, accident or other calamity
(whether or not insured).
(c) The Representatives shall have received from Friday, Xxxxxxxx &
Xxxxx, counsel for the Company, a favorable opinion dated the Closing Date
and satisfactory to the Representatives and the Underwriters' counsel to
the effect that:
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(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement. The Company is duly qualified to do business
as a foreign corporation and in good standing in each jurisdiction
where the ownership or leasing of its properties or the conduct of its
business requires such qualification, except in any such case where
the failure to so qualify or be in good standing would not have a
material adverse effect on the condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, taken as a
whole.
(ii) An opinion to the same general effect as clause (i) of this
subparagraph (c) in respect of each direct and indirect subsidiary of
the Company.
(iii) All of the issued and outstanding capital stock of the
subsidiaries of the Company has been duly authorized and validly
issued and is fully paid and non-assessable and, with the exception of
Acxiom CDC, Inc., the Company owns directly or indirectly 100 percent
of the outstanding capital stock of each subsidiary and, to the best
knowledge of such counsel, such stock is owned free and clear of any
security interests, claims, liens, encumbrances or adverse interests
of any nature.
(iv) The issued and outstanding capital stock of the Company has
been duly authorized and validly issued and is fully paid and non-
assessable and free of preemptive rights, except as set forth in the
Prospectus.
(v) The authorized capitalization of the Company consists
entirely of 200,000,000 shares of Common Stock, of which ________ were
issued and outstanding on the date of the Prospectus and 1,000,000
shares of Preferred Stock, par value $1.00 per share, of which no
shares were issued and outstanding on the date of the Prospectus, and
all of which conforms to the description thereof in the Registration
Statement and the Prospectus.
(vi) The certificates for the Shares to be delivered hereunder
are in due and proper form, and when duly countersigned by the
Company's transfer agent and delivered to the Representatives against
payment of the agreed consideration therefor in accordance with the
provisions of this Agreement and the Pricing Agreement, the Shares
represented thereby will be duly authorized and validly issued, fully
paid and nonassessable and free of preemptive rights, except as set
forth in the Prospectus, and, to the knowledge of such counsel, will
be free of any security interest, claim, lien, encumbrance or adverse
interest of any nature, or rights of first refusal in favor of,
stockholders with respect to any of the Shares or the issuance or sale
thereof, pursuant to the Certificate of Incorporation or by-laws of
the Company and, to such counsel's knowledge, except as disclosed in
the Prospectus, there are no contractual preemptive rights, rights of
first refusal, rights of co-sale or other similar rights which exist
with respect to any of the Shares or the issuance and sale thereof;
and the Shares to be sold
-22-
hereunder have been duly and validly authorized and qualified for
inclusion on the Nasdaq Stock Market, subject to notice of issuance.
(vii) This Agreement and the Pricing Agreement have been duly and
validly authorized, executed and delivered by the Company and are
legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles
of equity, and except that such counsel need express no opinion as to
those provisions relating to indemnities for liabilities under the
Act.
(viii) No authorization, approval, order or consent of any
governmental authority or agency is required for the valid issuance
and sale of the Shares, except such as may be required under the Act
or state securities laws as to which such counsel need express no
opinion.
(ix) The execution, delivery and performance of this Agreement
and the Pricing Agreement by the Company, the issue and sale of the
Shares, and the consummation of the transactions contemplated hereby
and thereby will not conflict with or result in a breach of any of the
provisions of, or constitute a default under (A) the Company's
Certificate of Incorporation or by-laws or any agreement, franchise,
license, indenture, mortgage, deed of trust or other instrument or
agreement known to such counsel to which the Company or any of its
subsidiaries is a party or by which Company or any of its subsidiaries
is bound or to which any of their respective properties is subject or
(B) so far as known to such counsel, any statute, order, rule or
regulation applicable to the Company or any of its subsidiaries of any
court or other governmental authority or body having jurisdiction over
the Company or any of its subsidiaries or any of its properties.
(x) All documents incorporated by reference in the Prospectus,
when they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act; and such
counsel has no reason to believe that any of such documents, when they
were so filed, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; such
counsel need express no opinion as to the financial statements or
other financial or statistical data contained in any such document.
(xi) The Registration Statement has become effective under the
Act, and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
-23-
(xii) The Registration Statement (including the information
deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b), if applicable) as amended or
supplemented (except for the financial statements and notes thereto,
the financial statement schedules and other statistical or financial
data included therein as to which such counsel need express no
opinion) and the Prospectus and any supplements or amendments thereto
(except for the financial statements and notes thereto, the financial
statement schedules and other statistical or financial data included
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
the rules of the Commission thereunder and nothing has come to the
attention of such counsel that would cause such counsel to believe
that the Registration Statement (including the information deemed to
be part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A(b), if applicable) as amended or supplemented
(except for the financial statements and notes thereto, the financial
statement schedules and other statistical or financial data included
therein as to which such counsel need express no opinion) at the time
it became effective, at the time the Pricing Agreement was executed
and at the Closing Date, contained any untrue statement of a material
fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that, as of its date, the Prospectus or any amendment
or supplement thereto (except for the financial statements and notes
thereto, the financial statement schedules and other statistical or
financial data included therein as to which such counsel need express
no opinion) included or includes any untrue statement of a material
fact or omitted or omits to state any material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading. To the extent applicable, the Rule 434
Prospectus conforms to the requirements of Rule 434 of the Act.
(xiii) The statements in the Prospectus and the documents
incorporated by reference therein in the sections captioned "Risk
Factors," "Business," "Certain Transactions" and "Executive
Compensation" in each case insofar as such statements reflect a
summary of the material legal matters or the documents referred to
therein, fairly and accurately present the information called for by
the Act and the applicable rules and regulations promulgated
thereunder.
(xiv) To the knowledge of such counsel there are no statutes or
regulations, provisions of the Delaware General Corporation Law, as
amended, or any pending or threatened litigation or governmental
proceedings against the Company required to be described in the
Prospectus which are not so described, nor of any contracts or
documents of a character required to be described in or filed as a
part of the Registration Statement which are not described or filed as
required.
(xv) To such counsel's knowledge, except as disclosed in the
Prospectus, no person has the right, contractual or otherwise, to
cause the
-24-
Company to register pursuant to the Act any shares of capital stock of
the Company, upon the issuance and sale of the Shares to be sold by
the Company and the Selling Stockholders to the Underwriters pursuant
to this Agreement.
(xvi) Neither the Company nor any of its subsidiaries is an
"investment company" or a person "controlled by" an "investment
company" within the meaning of the Investment Company Act.
(xvii) To such counsel's knowledge, all offers and sales of the
Company's and each of its subsidiaries capital stock prior to the date
hereof were at all relevant times were either registered pursuant to
the Act or exempt from the registration requirements of the Act and
were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue
sky laws.
In rendering such opinion, such counsel may state that they are
relying upon the certificate of the Selling Stockholders and of officers of
the Company and the transfer agent for the Common Stock, as to the number
of shares of Common Stock at any time or times outstanding, and that
insofar as their opinion under clause (xii) above relates to the accuracy
and completeness of the Prospectus and Registration Statement, it is based
upon a general review with the Company's representatives and independent
accountants of the information contained therein, without independent
verification by such counsel of the accuracy or completeness of such
information. Such counsel may also rely upon the opinions of other
competent counsel and, as to factual matters, on certificates of officers
of the Company and of state officials, in which case their opinion is to
state that they are so doing and copies of such opinions or certificates
are to be attached to the opinion unless such opinions or certificates (or,
in the case of certificates, the information therein) have been furnished
to the Representatives otherwise.
(d) The Representatives shall have received from Xxxx, Xxxxxx &
Xxxxxxxxx, counsel for the Pritzker Foundation, a favorable opinion dated
the Closing Date and satisfactory to the Representatives and the
Underwriters' counsel to the effect that:
(i) With respect to such Selling Stockholder, this Agreement and
the Pricing Agreement have been duly authorized, executed and
delivered by or on behalf of each such Selling Stockholder; the
officers of each such Selling Stockholder have been duly and validly
authorized to carry out all transactions contemplated herein on behalf
of each such Selling Stockholder; and the execution and performance of
this Agreement and the Pricing Agreement, the sale and transfer of the
Shares by such Selling Stockholder and the consummation of the
transactions contemplated herein by such Selling Stockholder will not
contravene, conflict with any of the provisions of, or result in a
breach or default under, the Articles of Incorporation and by-laws of
each such Selling Stockholder or any of its subsidiaries, any
agreement, franchise, license, indenture, mortgage, deed of trust or
other agreement or instrument known to such counsel to which any of
such Selling Stockholders
-25-
or any of its subsidiaries is a party or by which any are bound or to
which any of the property of such Selling Stockholders or any of its
subsidiaries is subject, nor will such actions violate any order, rule
or regulation known to such counsel of any court or regulatory or
governmental body having jurisdiction over any of such Selling
Stockholders or any of its respective properties; and no consent,
approval, authorization or order of any court or governmental agency
or body is required for the consummation of the transactions
contemplated by this Agreement and the Pricing Agreement or the sale
of Shares to be sold by such Selling Stockholders hereunder, except
such as may be required under the Act or state securities laws as to
which counsel need express no opinion;
(ii) Each Selling Stockholder has full right, power and
authority to enter into this Agreement and the Pricing Agreement and
to sell, transfer and deliver the Shares to be sold on the Closing
Date or the Option Closing Date, as the case may be, by such Selling
Stockholder hereunder; upon registration in the name of the
Underwriters of such Shares to be sold by such Selling Stockholder
hereunder, the Underwriters (who counsel may assume to be bona fide
purchasers) will acquire valid title to such Shares so sold, free and
clear of all voting trust arrangements, security interests, claims,
liens, encumbrances, community property rights or any adverse
interests of any nature imposed on such Shares by such Selling
Stockholder or the Company.
(iii) This Agreement and the Pricing Agreement are legal, valid
and binding agreements of each Selling Stockholder except as
enforceability of the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and by general principles of equity, and except that
such counsel need express no opinion to those provisions relating to
indemnities for liabilities arising under the Act.
(e) The Representatives shall have received from _________________,
counsel for the [Individual] Selling Stockholder, a favorable opinion dated
the Closing Date and satisfactory to the Representatives and the
Underwriters' counsel to the effect that:
(i) With respect to each Selling Stockholder, this Agreement,
the Pricing Agreement, the Power of Attorney and the Custody Agreement
have been duly authorized, executed and delivered by or on behalf of
each such Selling Stockholder; the Agents and the Custodian for each
such Selling Stockholder have been duly and validly authorized to
carry out all transactions contemplated herein on behalf of each such
Selling Stockholder; and the execution and performance of this
Agreement and the Pricing Agreement, the sale and transfer of the
Shares by such Selling Stockholder and the consummation of the
transactions contemplated herein by such Selling Stockholder will not
contravene, conflict with any of the provisions of, or result in a
breach or default under, any agreement, franchise, license, indenture,
mortgage, deed of trust or other agreement or instrument known to
-26-
such counsel to which any of such Selling Stockholders is a party or
by which any are bound or to which any of the property of such Selling
Stockholders is subject, nor will such actions violate any order, rule
or regulation known to such counsel of any court or regulatory or
governmental body having jurisdiction over any of such Selling
Stockholders or any of their properties; and no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated by this
Agreement, the Pricing Agreement, the Power of Attorney and the
Custody Agreement or the sale of Shares to be sold by such Selling
Stockholders hereunder, except such as may be required under the Act
or state securities laws as to which counsel need express no opinion;
(ii) Each Selling Stockholder has full right, power, capacity
and authority to enter into this Agreement, the Pricing Agreement, the
Power of Attorney and the Custody Agreement and to sell, transfer and
deliver the Shares to be sold on the Closing Date or the Option
Closing Date, as the case may be, by such Selling Stockholder
hereunder; upon registration in the name of the Underwriters of such
Shares to be sold by such Selling Stockholder hereunder, the
Underwriters (who counsel may assume to be bona fide purchasers) will
acquire valid title to such Shares so sold, free and clear of all
voting trust arrangements, security interests, claims, liens,
encumbrances, community property rights or any adverse interests of
any nature imposed on such Shares by such Selling Stockholder or the
Company.
(iii) This Agreement and the Pricing Agreement are legal, valid
and binding agreements of each Selling Stockholder except as
enforceability of the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and by general principles of equity, and except that
such counsel need express no opinion to those provisions relating to
indemnities for liabilities arising under the Act.
(iv) The Power of Attorney and Custody Agreement have been duly
executed and delivered by each Selling Stockholder and constitute
valid and binding agreements of each such Selling Stockholder in
accordance with their terms.
(f) That the Representatives shall have received on the Closing Date
a favorable opinion dated the Closing Date from XxXxxxxxx, Will & Xxxxx,
counsel for the Underwriters, as to such matters as the Representatives may
reasonably require.
(g) That the Representatives shall have received letters addressed to
the Representatives and dated the date hereof and the Closing Date from
each of KPMG LLP and PricewaterhouseCoopers LLP, who have been or are
currently independent public accountants for the Company or one of its
subsidiaries, to the effect set forth in Schedule III(a) and III(b),
respectively. There shall not have been any change or decrease specified in
the letters referred to in this
-27-
subparagraph which makes it impractical or inadvisable in the judgment of
the Representatives to proceed with the public offering or purchase of the
Shares as contemplated hereby.
(h) That (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short or long-term debt of the Company from that
set forth or contemplated in the Registration Statement; (iii) there shall
not have been, since the respective dates as to which information is given
in the Registration Statement and the Prospectus, except as may otherwise
be set forth or contemplated in the Registration Statement and the
Prospectus, any material adverse change in the financial condition or
results of operations of the Company; (iv) the Company shall not have
incurred any material liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), other than those
reflected in the Registration Statement, and (v) all of the representations
and warranties of the Company contained in this Agreement shall be true and
correct on and as of the date hereof and the Closing Date as if made on and
as of each such date, and the Representatives shall have received a
certificate, dated the Closing Date and signed by the chief executive
officer and the principal financial officer (or such other officers as are
acceptable to the Representatives) to the effect set forth in this Section
6(h) and in Section 6(i) hereof.
(i) That the Company shall not have failed at or prior to the Closing
Date to have performed or complied in all material respects with any of the
agreements herein contained and required to be performed or complied with
by it at or prior to the Closing Date.
(j) Within 24 hours after the Registration Statement becomes
effective, or within such longer period as to which the Representatives
shall have consented, the Shares shall have been qualified for sale or
exempted from such qualification under the securities laws of such
jurisdictions as the Representatives shall have designated prior to the
time of execution of the Pricing Agreement and such qualification or
exemption shall continue in effect to and including the Closing Date.
(k) That the representations and warranties of each Selling
Stockholder contained in this Agreement shall be true and correct on and as
of the date hereof and the Closing Date as if made on and as of each such
date, and the Representatives shall have received a certificate, dated the
Closing Date, to the effect set forth in this Section 6(k).
(l) That the Representatives shall have received from Trans Union
LLC a letter agreeing that neither Trans Union LLC nor any of its
affiliates shall sell or otherwise dispose of any Common Stock or rights to
purchase Common Stock for a period of 120 days after the date of the
Pricing Agreement without the prior written consent of ABN AMRO
Incorporated.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Option
Closing Date of the conditions set forth in paragraphs (a) through (l);
except that the opinions called for
-28-
in paragraphs (c) and (f) shall be revised to reflect the sale of
Additional Shares and shall be dated the Option Closing Date, if different
from the Closing Date.
Section 7. Indemnification and Contribution.
(a) The Company and each of the Selling Stockholders, severally in
proportion to the number of Firm Shares to be sold by such Selling Stockholder,
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of the Act or the Exchange Act
from and against any and all losses, claims, damages or liabilities, joint or
several, whatsoever (including any investigation, legal or other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted) to which such Underwriter, or such
controlling person may become subject, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Registration Statement or the Prospectus or in any
amendment or supplement thereto or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred, except insofar as such losses, claims,
damages or liabilities arise out of or are based upon any such untrue statement
or omission or allegation thereof which has been made therein or omitted
therefrom in reliance upon and in conformity with information relating to such
Underwriter furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives expressly for use therein; provided,
however, that the indemnification contained in this paragraph with respect to
any Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
of any person controlling such Underwriter) with respect to any action or claim
arising from the sale of the Shares by such Underwriter brought by any person
who purchased Shares from such Underwriter if (i) a copy of the Prospectus (as
amended or supplemented if any amendments or supplements thereto shall have been
furnished to the Underwriter prior to the written confirmation of the sale
involved) shall not have been given or sent to such person by or on behalf of
the Underwriter with or prior to the written confirmation of the sale involved
and (ii) the untrue statement or omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus (as amended or
supplemented if amended or supplemented as aforesaid). Notwithstanding the
foregoing, the liability of each Selling Stockholder under this Section 7(a)
shall be limited to an amount equal to such Selling Stockholder's proceeds (net
of any underwriting discounts) from the public offering of the Shares. In
addition, each Selling Stockholder shall not be liable under this Section 7(a)
except to the extent that any such loss, claim, damage or liability (or action
in respect thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder (in such capacity)
expressly for use therein.
(b) If any action or claim shall be brought against any Underwriter or any
person controlling such Underwriter, in respect of which indemnity may be sought
against the Company, such Underwriter shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses.
-29-
Any Underwriter or any such person controlling such Underwriter shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person and shall be reimbursed
as they are incurred unless (i) the Company has agreed in writing to pay such
fees and expenses, (ii) the Company has failed to assume the defense and employ
counsel, or (iii) the named parties to any such action (including any impleaded
party) included such Underwriter or controlling person and the Company and such
Underwriter or controlling person shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the Company and which may also result in a
conflict of interest (in which case if such Underwriter or controlling person
notifies the Company, the Company shall not have the right to assume the defense
of such action on behalf of such Underwriter or controlling person, it being
understood, however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys for all such Underwriters and controlling persons, which firm shall be
designated in writing by the Representatives). The Company shall not be liable
for any settlement or any such action effected without the written consent of
the Company, but if settled with the written consent of the Company, or if there
shall be a final judgment for the plaintiff in any such action and the time for
filing all appeals has expired, the Company agrees to indemnify and hold
harmless any Underwriter and any such controlling person from and against any
loss or liability by reason of such settlement or judgment.
(c) Each Underwriter will severally indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and
each Selling Stockholder, and any person controlling the Company within the
meaning of the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with respect to
information relating to such Underwriter furnished in writing to the Company by
or on behalf of such Underwriter through the Representatives expressly for use
in the Registration Statement, the Prospectus or any Preliminary Prospectus. If
any action or claim shall be brought or asserted against the Company, any of its
directors, any such officer, any such Selling Stockholder, or any such
controlling person based on the Registration Statement, the Prospectus or any
Preliminary Prospectus and in respect of which indemnity may be sought against
any Underwriter, such Underwriter shall have the rights and duties given to the
Company pursuant to Section 7(b) hereof (except that if the Company shall have
assumed the defense thereof, such Underwriter shall not be required to do so,
but may employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Company, its directors, any such officer, any such Selling
Stockholder, and any such controlling person shall have the rights and duties
given to the Underwriters by Section 7(b) hereof.
(d) (i) If the indemnification provided for in this Section 7 is
unavailable as a matter of law to any indemnified party under this Section 7 in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by damages,
liabilities or expenses (A) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Stockholders and the
Underwriters from the offering of the
-30-
Shares or (B) if the allocation provided by clause (A) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (A) above but also the relative fault of
the Company, the Selling Stockholders and the Underwriters in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The respective relative benefits received by the Company, the Selling
Stockholders and the Underwriters shall be deemed to be in the same proportion
in the case of the Company and the Selling Stockholders, as the total price paid
to the Company and the Selling Stockholders for the Shares by the Underwriters
(net of underwriting discount but before deducting expenses), and in the case of
the Underwriters as the underwriting discount received by them bears to the
total of such amounts paid to the Company and the Selling Stockholders and
received by the Underwriters as underwriting discount, in each case as
contemplated by the Prospectus. The relative fault of the Company, the Selling
Stockholders and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Stockholders or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in this Section shall be deemed to
include, subject to the limitations set forth in this Section, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
(ii) The Company, the Selling Stockholders and the Underwriters agree
that the determination of contribution pursuant to this Section based on pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph would not be just and equitable (even if the several Underwriters were
treated as one entity for such purpose). Notwithstanding the provisions of this
Section, no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this Section
and the representations and warranties of the Company and the Selling
Stockholders set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter, the Company or its
directors or officers or any Selling Stockholder, (or any person controlling the
Company or any Selling Stockholder), (ii) acceptance of any Shares and payment
therefor hereunder and (iii) any termination of this Agreement. A successor or
assign of an Underwriter, the Company or its directors or officers, and their
legal and personal representatives (or of any person controlling an Underwriter,
the Company or any Selling Stockholder) shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section.
-31-
Section 8. Effective Date of Agreement. This Agreement shall become
effective upon execution and delivery of this Agreement by the parties hereto.
Section 9. Default of Underwriters.
(a) If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase under this
Agreement and the Pricing Agreement and the aggregate number of Firm Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of Firm Shares,
each non-defaulting Underwriter shall be obligated, severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I bears
to the aggregate number of Firm Shares set forth opposite the names of all non-
defaulting Underwriters or in such other proportion as the Representatives may
specify in accordance with the Agreement Among Underwriters to purchase the Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase. If any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares and arrangements satisfactory to the Representatives and the Company for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or the Company. In any such case which does not result in
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement.
(b) Any notice under this Section 9 may be made by telecopy or telephone
but shall be subsequently confirmed by letter.
Section 10. Termination of Agreement. This Agreement and the Pricing
Agreement shall be subject to termination by notice given by you to the Company
and the Selling Stockholders, if (a) after the execution and delivery of this
Agreement and the Pricing Agreement and prior to the Closing Date (and with
respect to the Additional Shares, the Option Closing Date) (i) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York or in Chicago shall have been declared by either Federal,
New York or Illinois State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus. Notice of such cancellation shall be given to the Company and
the Selling Stockholders by telecopy or telephone but shall be subsequently
confirmed by letter.
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Section 11. Reimbursement of Underwriters' Expenses. If the sale to the
Underwriters of the Shares on the Closing Date is not consummated because any
condition to the Underwriters' obligations hereunder is not satisfied or because
of any refusal, inability or failure on the part of the Company or the Selling
Stockholders to perform any agreement herein or to comply with any provision
hereof, unless such failure to satisfy such condition or to comply with any
provision hereof is due to the default or omission of any Underwriter, the
Company and the Selling Stockholders agree to reimburse you and the other
Underwriters upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred by
you and them in connection with the proposed purchase and the sale of the
Shares. Any such termination shall be without liability of any party to any
other party except that the provisions of this Section, Section 5 and Section 7
shall at all times be effective and shall apply.
Section 12. Notices. Except as otherwise provided in Sections 9 and 10
hereof, notice given pursuant to any of the provisions of this Agreement shall
be in writing and shall be delivered (a) if to the Company, at the office of the
Company at Acxiom Plaza, 0 Xxxxxxxxxxx Xxx, Xxxxxx Xxxx, Xxxxxxxx 00000,
Attention: Xx. Xxxxxxxxx X. Xxxxxx, Esq., with a copy to Friday, Xxxxxxxx &
Xxxxx, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000-0000,
Attention: Xxxx X. Xxxxxx or (b) if to the Representatives, at the offices of
ABN AMRO Incorporated, 000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Corporate Finance Department, with a copy to XxXxxxxxx, Will &
Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxx, P.C., (c) if to the Pritzker Foundation at the office of Xxxxxx Group,
000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxx,
with a copy to Xxxx, Gerber & Xxxxxxxxx, Xxx Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxx Xxxxxxxx or (d) if to the [Individual] Selling
Stockholders, to the Agents and the Custodian at such address as they have
previously furnished to the Company and the Representatives, with a copy to
_________________, Attention: _____________ or in any case to such other address
as the person to be notified may have requested in writing.
Section 13. Successors. The Agreement and the Pricing Agreement are made
solely for the benefit of the several Underwriters, the Company, their directors
and officers and other controlling persons referred to in Section 7 hereof, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or the Pricing Agreement.
The term "successors and assigns" as used in this Agreement shall not include a
purchaser from any of the several Underwriters of any of the Shares in his
status as such purchaser.
Section 14. Representation of Underwriters. The Representatives will act
for the several Underwriters in connection with the purchase, offering and sale
of the Shares, and any action taken by the Representatives will be binding upon
all the Underwriters.
Section 15. Partial Unenforceability. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
Section 16. Applicable Law. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
Section 17. Counterparts. This Agreement may be signed in various
counterparts which together shall constitute one and the same instrument.
* * *
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Please confirm that the foregoing correctly sets forth the agreement among
the Company and the several Underwriters.
Very truly yours,
ACXIOM CORPORATION
By: _________________________________________
Name:
Title:
PRITZKER FOUNDATION
By: _________________________________________
Name:
Title:
[INDIVIDUAL SELLING STOCKHOLDERS], listed on
Schedule II to the Underwriting Agreement
By: _________________________________________
Agent and Attorney-in-Fact
Accepted and delivered as of
the date first written above.
ABN AMRO INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
XXXXXXX XXXXX & COMPANY, L.L.C.
PAINEWEBBER INCORPORATED
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXXX INC.
Acting as Representatives of
the Several Underwriters named
in Schedule I hereto.
By: ABN AMRO Incorporated
By: _________________________________
Name:
Title:
ACXIOM CORPORATION
SCHEDULE I
Underwriters
------------
Name Firm Shares
---- -----------
ABN AMRO Incorporated.........................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated......................................
Xxxxxxx Xxxxx Barney Inc......................................
Xxxxxxx Xxxxx & Company, L.L.C................................
PaineWebber Incorporated......................................
Xxxxxx X. Xxxxx & Co. Incorporated............................
Xxxxxxxx Inc..................................................
TOTAL.................................................. 5,511,076
=========
ACXIOM CORPORATION
SCHEDULE II
Selling Stockholders
--------------------
Number of
Firm Shares
Name to be sold
---- -----------
TOTAL................................................ ___________
ACXIOM CORPORATION
SCHEDULE III(A)
Comfort Letter of KPMG LLP
[TO BE COMPLETED]
ACXIOM CORPORATION
SCHEDULE III(B)
Comfort Letter of PricewaterhouseCoopers LLP
[TO BE COMPLETED]
EXHIBIT A
__________ Shares/2/
Acxiom Corporation
Common Stock
PRICING AGREEMENT
-----------------
__________, 1999
ABN AMRO Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
PaineWebber Incorporated
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxxx Inc.
Individually and as Representatives of the
Several Underwriters Named in Schedule I
to the Underwriting Agreement
c/o ABN AMRO Incorporated
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated _______ __,
1999 (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule II thereto (collectively, the "Underwriters"),
for whom you are acting individually and as representatives (the
"Representatives"), of the above referenced Common Stock (the "Shares") of
Acxiom Corporation (the "Company").
Pursuant to Section 3 of the Underwriting Agreement, the Company agrees
with each of the Underwriters as follows:
1. The initial public offering price per share of the Shares
determined as provided in said Section 3 shall be $_______.
2. The purchase price per share of the Shares to be paid by the
several Underwriters shall be $________, being an amount equal to the
initial public offering price set forth above, less $_______ per Share.
---------------
/2/* Plus an option to purchase up to ___________ Additional Shares to cover
over-allotments
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
ACXIOM CORPORATION
By:____________________________
Name:
Title:
PRITZKER FOUNDATION
By:____________________________
Name:
Title:
[INDIVIDUAL SELLING STOCKHOLDERS],
listed on Schedule II to the
Underwriting Agreement
By:____________________________
Agent and Attorney-in-Fact
Confirmed and Accepted, as of the date
first above written for themselves and
as Representatives of the other Underwriters
named in the Underwriting Agreement:
ABN AMRO Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
PaineWebber Incorporated
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxxx Inc.
Acting as Representatives of the Several
Underwriters named in Schedule I to
the Underwriting Agreement
By: ABN AMRO Incorporated
By:________________________________
