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EXHIBIT 1
LAMALIE ASSOCIATES, INC.
2,000,000 Shares of Common Stock*
FORM OF
UNDERWRITING AGREEMENT
, 1997
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XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXX XXXXX & COMPANY, L.L.C.
As Representatives of the Several Underwriters
Identified in Schedule I Annexed Hereto
c/o Xxxxxx X. Xxxxx & Co. Incorporated
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. Lamalie Associates, Inc., a Florida
corporation, (the "Company"), proposes to sell 2,000,000 shares (the "Firm
Shares") of common stock, $.01 par value per share (the "Common Stock"), to the
several underwriters identified in Schedule I annexed hereto (the
"Underwriters"), who are acting severally and not jointly. In addition, the
Company agreed to grant to the Underwriters an option to purchase up to 300,000
additional shares of Common Stock (the "Optional Shares") as provided in
Section 5 hereof. The Firm Shares and, to the extent such option is exercised,
the Optional Shares are hereinafter collectively referred to as the "Shares."
You, as representatives of the Underwriters (the
"Representatives"), have advised the Company that the Underwriters propose to
make a public offering of their respective portions of the Shares as soon
hereafter as in your judgment is advisable and that the public offering price
of the Shares initially will be [$_____] per share.
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* Plus an option to acquire up to 300,000 additional shares of Common
Stock from the Company to cover over-allotments.
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The Company hereby confirms agreements with the Underwriters
as follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to, and agrees with, the several Underwriters,
and shall be deemed to represent and warrant to the several Underwriters on
each Closing Date (as hereinafter defined), that:
(a) The Company has been duly incorporated and is validly
existing as a corporation and 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 to conduct its business as presently
conducted and described in the Prospectus and the Registration Statement (as
such terms are hereinafter defined). The Company is duly registered and
qualified to do business as a foreign corporation under the laws of, and is in
good standing as such in, each jurisdiction in which such registration or
qualification is required, except where the failure to so register or qualify
would not have a material adverse effect on the condition (financial or other),
business, property, net worth, results of operations or prospects of the
Company (a "Material Adverse Effect"). No proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification. Complete and correct
copies of the certificate of incorporation and by-laws, as amended or restated
("Articles of Incorporation" and "By-laws," respectively), of the Company as in
effect on the date hereof have been delivered to the Representatives, and no
changes thereto will be made on or subsequent to the date hereof and prior to
each Closing Date.
(b) All of the shares of Common Stock issued and outstanding
immediately prior to the issuance and sale of the Shares as set forth in the
Prospectus have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus and the Registration Statement. There are no preemptive,
preferential or, except as described in the Prospectus, other rights to
subscribe for or purchase any shares of Common Stock (including the Shares),
and no shares of Common Stock have been issued in violation of such rights. The
Shares to be issued and sold to the Underwriters have been duly authorized and,
when issued, delivered and paid for pursuant to this Agreement, will be validly
issued, fully paid and nonassessable and will conform to the description
thereof contained in the Prospectus and the Registration Statement. The
delivery of certificates for the Shares to be issued and sold hereunder and
payment therefor pursuant to the terms of this Agreement will pass valid title
to such Shares to the Underwriters, free and clear of any lien, claim,
encumbrance or defect in title. Except as described in the Prospectus, there
are no outstanding options, warrants or other rights of any description,
contractual or otherwise, entitling any person to be issued any class of
security by the Company, and there are no holders of Common Stock or other
securities of the Company, or of securities that are convertible or
exchangeable into Common Stock or other securities of the Company, that have
rights to the registration of such Common Stock or securities under the
Securities Act of 1933, as amended, and the regulations thereunder (together,
the "Act") or the securities laws or regulations of any of the states (the
"Blue Sky Laws").
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(c) The Company has no subsidiaries and does not own any
equity interest in or control, directly or indirectly, any other corporation,
limited liability company, partnership, joint venture, association, trust or
other business organization.
(d) The Company has full corporate power and authority to
enter into and perform this Agreement, and the execution and delivery by the
Company of this Agreement and the performance by the Company of its obligations
hereunder and the consummation of the transactions described herein, have been
duly authorized with respect to the Company by all necessary corporate action
and will not: (i) violate any provisions of the Articles of Incorporation or
By-laws of the Company; (ii) violate any provisions of, or result in the
breach, modification or termination of, or constitute a default under, any
provision of any agreement, lease, franchise, license, indenture, permit,
mortgage, deed of trust, evidence of indebtedness or other instrument to which
the Company is a party or by which the Company, or any property owned or leased
by the Company, may be bound or affected; (iii) violate any statute, ordinance,
rule or regulation applicable to the Company, or order or decree of any court,
regulatory or governmental body, arbitrator, administrative agency or
instrumentality of the United States or other country or jurisdiction having
jurisdiction over the Company; or (iv) result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company. No
consent, approval, authorization or other order of any court, regulatory or
governmental body, arbitrator, administrative agency or instrumentality of the
United States or other country or jurisdiction is required for the execution
and delivery of this Agreement by the Company, the performance of its
obligations hereunder or the consummation of the transactions contemplated
hereby, except for compliance with the Act, the Securities Exchange Act of
1934, as amended, and the regulations thereunder (together, the "Exchange
Act"), the Blue Sky Laws applicable to the public offering of the Shares by the
several Underwriters and the clearance of such offering and the underwriting
arrangements evidenced hereby with the National Association of Securities
Dealers, Inc. (the "NASD"). This Agreement has been duly executed and delivered
by and on behalf of the Company and is a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms.
(e) A registration statement on Form S-1 (Reg. No.
333-_______) with respect to the Shares, including a preliminary form of
prospectus and a preliminary form of prospectus supplement relating to the
offer and sale of Shares and of participation interests in the Company's Profit
Sharing Plan (the "Profit Sharing Plan") to the trustee of the Profit Sharing
Trust, at the election and for the account of participants thereof, has been
carefully prepared by the Company in conformity with the requirements of the
Act and has been filed with the Securities and Exchange Commission (the
"Commission"). Such registration statement, as finally amended and revised at
the time such registration statement was or is declared effective by the
Commission (including all financial schedules and exhibits and including the
information contained in the form of final prospectus and related prospectus
supplement, if any, filed with the Commission pursuant to Rule 424(b) and Rule
430A under the Act and deemed to be part of the registration statement if the
registration statement has been declared effective pursuant to Rule 430A(b))
and as thereafter amended by post-effective amendment or as supplemented by any
supplements thereto,
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if any, is herein referred to as the "Registration Statement." If an
abbreviated registration statement is prepared and filed with the Commission in
accordance with Rule 462(b) under the Act (an "Abbreviated Registration
Statement"), the term "Registration Statement" as used in this Agreement
includes the Abbreviated Registration Statement. The final prospectus and the
related prospectus supplement, each in the form first filed with the Commission
pursuant to Rule 424(b) or, if no such filing is required, as included in the
Registration Statement, or any supplement thereto, is herein referred to
collectively as the "Prospectus." The prospectus and the related prospectus
supplement, each as subject to completion and in the forms included in the
Registration Statement at the time of the initial filing of the Registration
Statement with the Commission, and each such prospectus and related prospectus
supplement as amended from time to time until the date of the Prospectus, is
referred to herein collectively as the "Preliminary Prospectus." The Company
has prepared and filed such amendments to the Registration Statement since its
initial filing with the Commission, if any, as may have been required to the
date hereof, and will file such additional amendments thereto as may hereafter
be required. There have been delivered to the Representatives two signed copies
of the Registration Statement and each amendment thereto, if any, together with
two copies of each exhibit filed therewith, and such number of conformed copies
for each of the Underwriters of the Registration Statement and each amendment
thereto, if any (but without exhibits), and of each Preliminary Prospectus and
of the Prospectus as the Representatives have requested.
(f) Neither the Commission nor any state securities
commission has issued any order preventing or suspending the use of any
Preliminary Prospectus, nor, to the knowledge of the Company, have any
proceedings for that purpose been initiated or threatened, and each Preliminary
Prospectus filed with the Commission as part of the Registration Statement as
originally filed or as part of any amendment or supplement thereto complied
when so filed with the requirements of the Act and, as of its date, did not
include any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. As of the effective date of the Registration Statement, and at
all times subsequent thereto up to each Closing Date, the Registration
Statement and the Prospectus contained or will contain all statements that are
required to be stated therein in accordance with the Act and conformed or will
conform in all respects to the requirements of the Act, and neither the
Registration Statement nor the Prospectus included or will include any untrue
statement of a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. Neither the Company, nor any person that controls, is controlled by
(including the Subsidiaries) or is under common control with the Company, has
distributed or will distribute prior to each Closing Date any offering material
in connection with the offering and sale of the Shares other than a Preliminary
Prospectus, the Prospectus, the Registration Statement or other materials
permitted by the Act and provided to the Representatives.
(g) Xxxxxx Xxxxxxxx LLP, which has expressed its opinion with
respect to the financial statements and schedules filed with the Commission and
included as a part of each
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Preliminary Prospectus, the Prospectus or the Registration Statement are
independent accountants as required by the Act.
(h) The financial statements and the related notes thereto
included in each Preliminary Prospectus, the Prospectus and the Registration
Statement present fairly the financial position, results of operations and cash
flows of the Company as of their respective dates or for the respective periods
covered thereby, all in conformity with generally accepted accounting
principles consistently applied throughout the periods involved. The financial
statement schedules, if any, included in the Registration Statement present
fairly the information required to be stated therein on a basis consistent with
the financial statements of the Company contained therein. The pro forma
financial statements, together with the related schedules and notes, if any, in
each Preliminary Prospectus, the Prospectus and the Registration Statement (i)
have been prepared on a basis consistent with such historical financial
statements, except for the pro forma adjustments specified therein, (ii) give
effect to the pro forma adjustments specified therein, which adjustments are
based on reasonable assumptions, and (iii) present fairly the historical and
proposed transactions specified therein. The other financial information and
statistical and data included in each Preliminary Prospectus, the Prospectus
and the Registration Statement, whether historical or pro forma, are, in all
material respects, accurately presented and prepared on a basis consistent with
such financial statements and the books and records of the Company. The
financial statements and schedules and the related notes thereto included in
each Preliminary Prospectus, the Prospectus or the Registration Statement are
the only such financial statements and schedules required under the Act to be
set forth therein. The Company had an outstanding capitalization as set forth
in the Registration Statement and under "Capitalization" in the Prospectus as
of the date indicated therein, and there has been no material change thereto
since such date except as disclosed in the Prospectus.
(i) The Company is not and, with the giving of notice or
passage of time or both, would be, in violation or in breach of: (i) its
Articles of Incorporation or By-laws; (ii) any statute, ordinance, order, rule
or regulation applicable to the Company; (iii) any order or decree of any
court, regulatory body, arbitrator, administrative agency or other
instrumentality of the United States or other country or jurisdiction having
jurisdiction over the Company; or (iv) any provision of any agreement, lease,
franchise, license, indenture, permit, mortgage, deed of trust, evidence of
indebtedness or other instrument to which the Company is a party or by which
any property owned or leased by the Company is bound or affected. The Company
has not received notice of any violation of any applicable statute, ordinance,
order, rule or regulation applicable to the Company. The Company has obtained
and holds, and is in compliance with, all permits, certificates, licenses,
approvals, registrations, franchises, consents and authorizations of
governmental or regulatory authorities required under all laws, rules and
regulations in connection with its business (hereinafter "permit" or
"permits"), and all of such permits are in full force and effect; and the
Company has fulfilled and performed all of its obligations with respect to each
such permit and no event has occurred which would result in, or after notice or
lapse of time would result in, revocation or termination of any such permit or
result in any other impairment of the rights of the holder of such permit. The
Company is not and has not been (by virtue of any
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action, omission to act, contract to which it is a party or other occurrence)
in violation of any applicable foreign, federal, state, municipal or local
statutes, laws, ordinances, rules, regulations or orders (including those
relating to environmental protection, occupational safety and health and equal
employment practices) heretofore or currently in effect.
(j) There are no legal or governmental proceedings or
investigations pending or, to the knowledge of the Company, threatened to which
the Company is or may be a party or to which any property owned or leased by
the Company is or may be subject, including, without limitation, any such
proceedings that are related to environmental or employment discrimination
matters, which are required to be described in the Registration Statement or
the Prospectus which are not so described, or which question the validity of
this Agreement or any action taken or to be taken pursuant hereto. Except as
described in the Registration Statement or the Prospectus, the Company: (i) is
not in violation of any statute, ordinance, rule or regulation, or any
decision, order or decree of any court, regulatory body, arbitrator,
administrative agency or other instrumentality of the United States or other
country or jurisdiction having jurisdiction over the Company relating to the
use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environmental or human exposure to hazardous
or toxic substances (collectively, "environmental laws"); (ii) does not own or
operate any real property contaminated with any substance that is subject to
any environmental laws; (iii) is not liable for any off-site disposal or
contamination pursuant to any environmental laws; and (iv) is not subject to
any claim relating to any environmental laws, which violation, contamination,
liability or claim could have a Material Adverse Effect.
(k) There is no transaction, relationship, obligation,
agreement or other document required to be described in the Registration
Statement or the Prospectus or to be filed or deemed to be filed as an exhibit
to the Registration Statement by the Act, which has not been described or filed
as required. All such contracts or agreements to which the Company is a party
have been duly authorized, executed and delivered by the Company, constitute
valid and binding agreements of the Company, and are enforceable by and against
the Company, in accordance with the respective terms thereof.
(l) The Company does not own any real property. The Company
has good and valid title to all property and assets reflected as owned by the
Company in the Company's financial statements included in the Registration
Statement (or elsewhere in the Registration Statement or the Prospectus), free
and clear of all liens, claims, mortgages, security interests or other
encumbrance of any kind or nature whatsoever except those, if any, reflected in
such financial statements (or elsewhere in the Registration Statement or the
Prospectus). All property (real and personal) held or used by the Company under
leases, licenses, franchises or other agreements is held by the Company under
valid, subsisting, binding and enforceable leases, franchises, licenses or
other agreements.
(m) Neither the Company nor any person that controls, is
controlled by or is under common control with the Company has taken or will
take, directly or indirectly, any action
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designed to cause or result in, or which constituted, or which could cause or
result in, stabilization or manipulation, under the Exchange Act or otherwise,
of the price of any security of the Company to facilitate the sale or resale of
the Common Stock.
(n) Except as described in the Registration Statement or the
Prospectus, since the respective dates as of which information is given in the
Registration Statement or the Prospectus and prior to each Closing Date: (i)
the Company does not have or will not have incurred any liability or
obligation, direct or contingent, or entered into any transaction, that is
material to the Company, except as in the ordinary course of business; (ii) the
Company has not and will not have paid or declared any dividend or other
distribution with respect to its capital stock and the Company is not and will
not be delinquent in the payment of principal or interest on any outstanding
debt obligation; and (iii) there has not been and will not have been any change
in the capital stock, any material change in the indebtedness of the Company,
or any change or development involving or which could be expected to involve, a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business.
(o) Neither the Company nor any person that controls, is
controlled by or is under common control with the Company has, directly or
indirectly: (i) made any unlawful contribution to any candidate for political
office, or failed to disclose fully any contribution in violation of law; or
(ii) made any payment to any federal, state or foreign governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof or applicable foreign jurisdictions.
(p) The Company owns or possesses adequate rights to use all
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and licenses presently
used in or necessary for the conduct of its business or ownership of its
properties, and the Company has not violated or infringed upon the rights of
others, or received any notice of conflict with the asserted rights of others,
in respect thereof.
(q) The Company has in place and effective such policies of
insurance, with limits of liability in such amounts, as are normal and prudent
in the ordinary course of the business of the Company.
(r) No labor dispute with the employees of the Company exists
or, to the knowledge of the Company, is imminent, and the Company is not a
party to any collective bargaining agreement and, to the knowledge of the
Company, no union organizational attempts have occurred or are pending. There
has been no change in the relationship of the Company with any of its principal
suppliers, manufacturers, contractors or customers resulting in or that could
result in a Material Adverse Effect.
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(s) The Company is not an "investment company", an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act
of 1940, as amended.
(t) All federal, state and local tax returns required to be
filed by or on behalf of the Company have been filed (or are the subject of
valid extension) with the appropriate federal, state and local authorities, and
all such tax returns, as filed, are accurate in all material respects; all
federal, state and local taxes (including estimated tax payments) required to
be shown on all such tax returns or claimed to be due from or with respect to
the business of the Company have been paid or reflected as a liability on the
financial statements of the Company for appropriate periods; all deficiencies
asserted as a result of any federal, state or local tax audits have been paid
or finally settled, and no issue has been raised in any such audit which, by
application of the same or similar principles, reasonably could be expected to
result in a proposed deficiency for any other period not so audited; no state
of facts exist or has existed which would constitute grounds for the assessment
of any tax liability with respect to the periods which have not been audited by
appropriate federal, state or local authorities; there are no outstanding
agreements or waivers extending the statutory period of limitation applicable
to any federal, state or local tax return of any period; and the Company has
never been a member of an affiliated group of corporations filing consolidated
federal income tax returns, other than a group of which the Company is and has
been the common parent. On [DATE], the Company validly elected to be an S
corporation under federal income tax law and such S corporation election
continued in full force and effect without interruption until November 1, 1994.
For purposes of this Section 2(t), "S corporation" means a corporation with
respect to which a valid election has been made under Section 1362 of the
Internal Revenue Code of 1986, as amended (the "Code"), and any corresponding
provision of state, local or foreign law.
(u) Except for the Company's [NAME EACH GROUP HEALTH, LIFE,
DISABILITY OR OTHER WELFARE PLAN], the Profit Sharing Plan and its deferred
compensation plan for employees, deferred compensation plan for directors, and
[NAME ANY OTHER CONTRIBUTORY OR NONCONTRIBUTORY DEFINED CONTRIBUTION RETIREMENT
PLAN AND DEFINED BENEFIT RETIREMENT PLANS] (collectively, the "Plans"), the
Company is not a participating employer or plan sponsor with respect to any
employee pension benefit plan as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or any employee
welfare benefit plan as defined in Section 3(1) of ERISA, including, without
limitation, any multiemployer welfare or pension plan. With respect to the
Plans, the Company is in substantial compliance with all applicable
regulations, including ERISA and the Code. With respect to each defined benefit
retirement plan, such plan does not have benefit liabilities (as defined in
Section 4001(a)(16) of ERISA) exceeding the assets of the plan. The Company or
the administrator of each of the Plans, as the case may be, has timely filed
the reports required to be filed by ERISA and the Code in connection with the
maintenance of the Plans, and no facts, including, without limitation, any
"reportable event" as defined by ERISA and the regulations thereunder, exist in
connection with the Plans which, under applicable law, would constitute grounds
for the termination of any of the Plans by the Pension
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Benefit Guaranty Corporation or for the appointment by the appropriate United
States District Court of a trustee to administer any of the Plans.
(v) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that: (i) transactions are
executed in accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of
consolidated financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general or specific
authorizations; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(w) None of the Company, any officer or director of the
Company, or any person who owns, of record or beneficially, any class of
securities issued by the Company is: (i) an officer, director or partner of any
brokerage firm, broker or dealer that is a member of the NASD ("NASD Member");
or (ii) directly or indirectly, a "person associated with" an NASD member or an
"affiliate" of an NASD member, as such terms are used in the Conduct Rules of
the NASD. In addition, the Company has not issued or transferred any Common
Stock, warrants, options or other securities, or any other items of value, to
any of the Underwriters or any "related person" of any Underwriter, as such
term is used in the Conduct Rules of the NASD, except as provided in this
Agreement.
(x) The Company has prepared and filed with the Commission a
registration statement for the Common Stock pursuant to Section 12(g) of the
Exchange Act. Such registration statement either has been declared effective by
the Commission under the Exchange Act or will be declared effective by the
Commission prior to or concurrently with the commencement of the public
offering of the Shares. The Common Stock has been approved for designation upon
notice of issuance as a Nasdaq National Market security on The Nasdaq Stock
Market ("Nasdaq") concurrently with the effectiveness of the Registration
Statement.
(y) Neither the Company nor any affiliate of the Company does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075 of the Florida Statutes, and the
Company agrees to comply with such Section if, prior to the completion of the
distribution of the Shares, the Company, or any affiliate of the Company
commences doing such business.
(z) All offers and sales of the securities of the Company
prior to the date hereof were made in compliance with the Act and all other
applicable state and federal laws or regulations.
(aa) The Company has obtained for the benefit of the
Underwriters the agreement, enforceable by Xxxxxx X. Xxxxx & Co. Incorporated
("Baird"), of each of the current stockholders of the Company, that for a
period of two years after the date of the Prospectus, such
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persons will not, without the prior written consent of Baird, directly or
indirectly, offer, sell, transfer, or pledge, contract to sell, transfer or
pledge, or cause or in any way permit to be sold, transferred, pledged, or
otherwise disposed of, any shares of Common Stock owned by such persons on the
date hereof (excluding shares of Common Stock that may be issued upon the
exercise of stock options currently outstanding or that may be granted under
the Company's 1997 Omnibus Stock and Incentive Plan and its Non-Employee
Directors' Stock Option Plan, or any Firm Shares or Optional Shares any of such
persons may acquire, directly or indirectly as participants in the Profit
Sharing Plan).
A certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby. A certificate delivered by the Company to its
counsel for purposes of enabling such counsel to render the opinion referred to
in Section 8(d) will also be furnished to the Representatives and counsel for
the Underwriters and shall be deemed to be additional representations and
warranties to the Underwriters by the Company as to the matters covered
thereby.
SECTION 3. REPRESENTATION OF UNDERWRITERS. The
Representatives will act as the representatives for the several Underwriters in
connection with the public offering of the Shares, and any action under or in
respect of this Agreement taken by the Representatives will be binding upon all
of the Underwriters.
SECTION 4. INFORMATION FURNISHED BY THE UNDERWRITERS. The
information set forth in the last paragraph on the outside front cover page of
the Prospectus concerning the terms of the offering by the Underwriters, the
paragraph on the inside front cover page of the Prospectus relating to
stabilization practices, and the concession and reallowance amounts appearing
under the caption "Underwriting" in the Prospectus constitute all of the
information furnished to the Company by and on behalf of the Underwriters for
use in connection with the preparation of the Registration Statement and the
Prospectus, as such information is referred to in this Agreement.
SECTION 5. PURCHASE, SALE AND DELIVERY OF SHARES.
(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters identified in Schedule I
annexed hereto 2,000,000 Firm Shares, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company that number of Firm
Shares set forth opposite the name of such Underwriter on Schedule I hereto, at
the price per share of $__________.
(b) On the First Closing Date (as hereinafter defined), the
Company will deliver to the Representatives, at the offices of Xxxxxx X. Xxxxx
& Co. Incorporated, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or
through the facilities of The Depository Trust Company, for the accounts of the
several Underwriters, certificates representing the Firm Shares
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to be sold against payment in Milwaukee, Wisconsin of the purchase price
therefor by certified or official bank check or checks in New York Clearing
House (next day) funds payable to the order of the Company with respect to the
Firm Shares. As referred to in this Agreement, the "First Closing Date" shall
be on the third full business day after the date of the Prospectus, at 9:00
a.m., Milwaukee, Wisconsin time, or at such other date or time not later than
ten full business days after the date of the Prospectus as the Representatives
and the Company may agree. The certificates for the Firm Shares to be so
delivered will be in denominations and registered in such names as the
Representatives request by notice to the Company prior to the First Closing
Date, and such certificates will be made available for checking and packaging
at 9:00 a.m., Milwaukee, Wisconsin time on the first full business day
preceding the First Closing Date at a location to be designated by the
Representatives.
(c) In addition, on the basis of the representations,
warranties and agreements herein contained, and subject to the terms and
conditions herein set forth, the Company hereby agrees to sell to the
Underwriters, and the Underwriters, severally and not jointly, shall have the
right at any time within thirty days after the date of the Prospectus to
purchase from the Company, up to 300,000 Optional Shares at the purchase price
per share to be paid for the Firm Shares, for use solely in covering any
over-allotments made by the Underwriters in the sale and distribution of the
Firm Shares. The option granted hereunder may be exercised upon notice by the
Representatives to the Company within thirty days after the date of the
Prospectus setting forth the aggregate number of Optional Shares to be
purchased by the Underwriters and sold by the Company, the names and
denominations in which the certificates for such shares are to be registered
and the date and place at which such certificates will be delivered. Such date
of delivery (the "Second Closing Date") shall be determined by the
Representatives, provided that the Second Closing Date, which may be the same
as the First Closing Date, shall not be earlier than the First Closing Date
and, if after the First Closing Date, shall not be earlier than three nor later
than ten full business days after delivery of such notice to exercise. Upon
exercise of such option, each Underwriter, severally and not jointly, agrees to
purchase that number of full Optional Shares (as nearly as practicable in full
shares as determined by the Representatives) which bears the same proportion to
the total number of Optional Shares to be sold as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto (or such
number of Firm Shares increased as set forth in Section 11 hereof) bears to the
total number of Firm Shares. Certificates for the Optional Shares will be made
available for checking and packaging at 9:00 a.m., Milwaukee, Wisconsin time,
on the first full business day preceding the Second Closing Date at a location
to be designated by the Representatives. The manner of payment for and delivery
of (including the denominations of and the names in which certificates are to
be registered) the Optional Shares shall be the same as for the Firm Shares.
(d) The Representatives have advised the Company that each
Underwriter has authorized the Representatives to accept delivery of the Shares
and to make payment therefor. It is understood that the Representatives,
individually and not as representatives of the Underwriters, may (but shall not
be obligated to) make payment for any Shares to be purchased by any Underwriter
whose funds shall not have been received by the Representatives by the First
Closing
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Date or the Second Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any
obligation under this Agreement. As referred to in this Agreement, "Closing
Date" shall mean either the First Closing Date or the Second Closing Date.
SECTION 6. COVENANTS OF THE COMPANY. The Company covenants
and agrees with the several Underwriters that:
(a) If the effective time of the Registration Statement is
not prior to the execution and delivery of this Agreement, the Company will use
its best efforts to cause the Registration Statement to become effective at the
earliest possible time and, upon notification from the Commission that the
Registration Statement has become effective, will so advise the Representatives
and counsel to the Underwriters promptly. If the effective time of the
Registration Statement is prior to the execution and delivery of this Agreement
and any information shall have been omitted therefrom in reliance upon Rule
430A, the Company, at the earliest possible time, will furnish the
Representatives with a copy of the Prospectus to be filed by the Company with
the Commission to comply with Rule 424(b) and Rule 430A under the Act and, if
the Representatives do not object to the contents thereof, will comply with
such Rules. Upon compliance with such Rules, the Company will so advise the
Representatives promptly. The Company will advise the Representatives and
counsel to the Underwriters promptly of the issuance by the Commission or any
state securities commission of any stop order suspending the effectiveness of
the Registration Statement or of the institution of any proceedings for that
purpose, or of any notification of the suspension of qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceedings for that purpose, and will also advise the Representatives and
counsel to the Underwriters promptly of any request of the Commission for
amendment or supplement of the Registration Statement, of any Preliminary
Prospectus or of the Prospectus, or for additional information, and the Company
will not file any amendment or supplement to the Registration Statement (either
before or after it becomes effective), to any Preliminary Prospectus or to the
Prospectus (including a prospectus filed pursuant to Rule 424(b)) if the
Representatives have not been furnished with a copy prior to such filing (with
a reasonable opportunity to review such amendment or supplement) or if the
Representatives object to such filing.
(b) If, at any time when a prospectus relating to the Shares
is required by law to be delivered in connection with sales by an Underwriter
or dealer, any event occurs as a result of which the Prospectus would include
an untrue statement of a material fact, or would omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to supplement the Prospectus to comply with
the Act, the Company promptly will advise the Representatives and counsel to
the Underwriters thereof and will promptly prepare and file with the
Commission, at its expense, an amendment to the Registration Statement which
will correct such statement or omission or an amendment which will effect such
compliance; and, if any Underwriter is required to deliver a prospectus after
the effective date of the Registration
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Statement, the Company, upon request of the Representatives, will prepare
promptly such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act. The Company
consents to the use, in accordance with the provisions of the Act and with the
Blue Sky Laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by dealers, of each Preliminary Prospectus.
(c) The Company will not, prior to the Second Closing Date,
if any, incur any liability or obligation, direct or contingent, or enter into
any material transaction, other than in the ordinary course of business, or
enter into any transaction with an "affiliate," as defined in Rule 405 under
the Act, which is required to be described in the Prospectus pursuant to Item
404 of Regulation S-K under the Act, except as described in the Prospectus.
(d) The Company will not, prior to the Second Closing Date,
if any, acquire any of the Common Stock nor will the Company declare or pay any
dividend or make any other distribution upon its Common Stock payable to
stockholders of record on a date prior to such earlier date, except as
described in the Prospectus.
(e) The Company will make generally available to its security
holders and the Representatives an earnings statement as soon as practicable,
but in no event later than sixty days after the end of its fiscal quarter in
which the first anniversary of the effective date of the Registration Statement
occurs, covering a period of twelve consecutive calendar months beginning after
the effective date of the Registration Statement, which will satisfy the
provisions of the last paragraph of Section 11(a) of the Act and Rule 158
promulgated thereunder.
(f) During such period as a prospectus is required by law to
be delivered in connection with sales by an Underwriter or dealer, the Company
will furnish to the Representatives, at the expense of the Company, copies of
the Registration Statement, the Prospectus, any Preliminary Prospectus and all
amendments and supplements to any such documents in each case as soon as
available and in such quantities as the Representatives may reasonably request.
(g) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder for the purposes set forth in the
Prospectus, and will timely file Form SR, and any amendments thereto, as
required by Rule 463 under the Act.
(h) The Company will cooperate with the Representatives and
counsel to the Underwriters in qualifying or registering the Shares for sale
under the Blue Sky Laws of such jurisdictions as the Representatives designate,
and will continue such qualifications or registrations in effect so long as
reasonably requested by the Representatives to effect the distribution of the
Shares. The Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any such jurisdiction
where it is not presently qualified. In each jurisdiction where any of the
Shares shall have been qualified as provided above, the Company will file such
reports and statements as may be required to continue such qualification for a
period
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of not less than one year from the date of the Prospectus. The Company shall
promptly prepare and file with the Commission, from time to time, such reports
as may be required to be filed by the Act and the Exchange Act, and the Company
shall comply in all respects with the undertakings given by the Company in
connection with the qualification or registration of the Shares for offering
and sale under the Blue Sky Laws.
(i) During the period of three years from the date of the
Prospectus, the Company will furnish to each of the Representatives and to each
of the other Underwriters who may so request, as soon as available, each
report, statement or other document of the Company or its Board of Directors
mailed to its stockholders or filed with the Commission, and such other
information concerning the Company as the Representatives may reasonably
request.
(j) The Company shall deliver the requisite notice of
issuance to Nasdaq and shall take all necessary or appropriate action within
its power to maintain the authorization for trading of the Common Stock as a
Nasdaq National Market security, or take such action to authorize the Common
Stock for listing on the New York Stock Exchange or the American Stock
Exchange, for a period of at least thirty-six months after the date of the
Prospectus.
(k) Except for the issuance and sale by the Company of Common
Stock pursuant to the Company's Employee Stock Purchase Plan, upon the exercise
of stock options granted under the Company's 1997 Omnibus Stock and Incentive
Plan and its Non-Employee Directors' Stock Option Plan, copies of which are
filed as exhibits to the Registration Statement (collectively, the "Option
Plans"), the sale of the Shares to be sold pursuant to this Agreement, and the
grant of stock options pursuant to the Option Plans, the Company shall not, for
a period of two years after the date of the Prospectus, without the prior
written consent of Baird, directly or indirectly, offer, sell or otherwise
dispose of, contract to sell or otherwise dispose of, or cause or in any way
permit to be sold or otherwise disposed of, any: (i) shares of Common Stock;
(ii) rights to purchase shares of Common Stock; or (iii) securities that are
convertible or exchangeable into shares of Common Stock.
(l) The Company has furnished or will furnish to Baird the
agreements described in Section 2(aa) hereof, in the form previously delivered
to the Company, signed by each of the Company's current stockholders.
(m) The Company will maintain a transfer agent and, if
required by law or the rules of Nasdaq or any national securities exchange on
which the Common Stock is listed, a registrar (which, if permitted by
applicable laws and rules, may be the same entity as the transfer agent) for
its Common Stock. The Company shall, as soon as practicable after the date
hereof, use its best efforts to obtain listing in Standard and Poor's Stock
Guide, or such other recognized securities manuals for which it may qualify for
listing, and the Company shall use its best efforts to maintain such listings
for at least five years after the First Closing Date.
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(n) If at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any rumor, publication or event
relating to of affecting the Company shall occur as a result of which, in the
opinion of Baird, the market price of the Common Stock has been or is likely to
be materially affected (regardless of whether such rumor, publication or event
necessitates a supplement to the Prospectus), the Company will, after written
notice from Baird advising the Company of any of the matters set forth above,
promptly consult with Baird concerning the advisability and substance of, and,
if the Company and Baird determine that it is appropriate, disseminate, a press
release or other public statement responding to or commenting on, such rumor,
publication or event.
(o) If the sale to the Underwriters of the Shares is not
consummated for any reason other than termination of this Agreement pursuant to
Section 11 hereof, without limiting any other rights the Underwriters may have,
the Company agrees to reimburse the Underwriters upon demand for all
out-of-pocket expenses (including reasonable fees and expenses of counsel for
the Underwriters), that shall have been incurred by the Underwriters in
connection with the proposed purchase and sale of the Shares, and the
provisions of Sections 7 and 10 hereof shall at all times be effective and
apply. Notwithstanding the foregoing sentence, if the sale to the Underwriters
of the Shares is not consummated for any reason other than termination of this
Agreement by the Underwriters pursuant to Section 11 hereof, and the Company or
any of the stockholders of the Company enter into an agreement on or before
December 31, 1997 with respect to the sale, lease, disposition or other
transfer of all or substantially all of the Company's assets or a majority
interest in its capital stock, directly or indirectly, by merger, share
exchange, business combination or otherwise (such sale, lease, disposition or
other transfer of assets or stock is hereinafter referred to as a "Business
Combination"), then the Company will (i) engage Xxxxxx X. Xxxxx & Co.,
Incorporated as its financial advisor for any such Business Combination and
(ii) pay Baird, in addition to the reimbursement of out-of-pocket expenses as
provided in the first sentence of this Section 6(o), a financial advisory fee
equal to $400,000, or 1.0% of the aggregate consideration paid to the Company
or its stockholders in such Business Combination, whichever is greater, in
immediately available funds upon consummation of such Business Combination for
financial advisory services to be rendered by the Representatives in connection
therewith.
(p) The Company will comply or cause to be complied with the
conditions to the obligations of the Underwriters in Section 8 hereof.
SECTION 7. PAYMENT OF EXPENSES. Whether or not the
transactions contemplated hereunder are consummated or this Agreement becomes
effective, or if this Agreement is terminated for any reason, the Company will
pay the costs, fees and expenses incurred in connection with the public
offering of the Shares. Such costs, fees and expenses to be paid by the Company
include, without limitation:
(a) All costs, fees and expenses (excluding the expenses
incurred by the Underwriters and the legal fees and disbursements of counsel
for the Underwriters, but including such fees and disbursements described in
subsection (b) of this Section 7) incurred in connection
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with the performance of the Company's obligations hereunder, including without
limiting the generality of the foregoing: the registration fees related to the
filing of the Registration Statement with the Commission; the fees and expenses
related to the quotation or listing of the Shares on Nasdaq or other national
securities exchange; the fees and expenses of the Company's counsel,
accountants, transfer agent and registrar; the costs and expenses incurred in
connection with the preparation, printing, shipping and delivery of the
Registration Statement, each Preliminary Prospectus and the Prospectus
(including all exhibits and financial statements) and all agreements and
supplements provided for herein, this Agreement and the Preliminary and
Supplemental Blue Sky Memoranda, including, without limitation, shipping
expenses via overnight delivery and/or courier service to comply with
applicable prospectus delivery requirements; and the costs and expenses
associated with the production of materials related to, and travel expenses
incurred by the management of the Company in connection with, the various
meetings to be held between the Company's management and prospective investors.
(b) All registration fees and expenses, including reasonable
legal fees and disbursements of counsel for the Underwriters, incurred in
connection with (i) the preparation of the Blue Sky Memoranda and Blue Sky
filings and with qualifying or registering all or any part of the Shares for
offer and sale under the Blue Sky Laws and (ii) the clearing of the public
offering and the underwriting arrangements evidenced hereby with the NASD.
(c) All fees and expenses related to printing of the
certificates for the Shares, and all transfer taxes, if any, with respect to
the sale and delivery of the Shares.
SECTION 8. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the several Underwriters under this Agreement shall be
subject to the accuracy of the representations and warranties on the part of
the Company herein set forth as of the date hereof and as of each Closing Date,
to the accuracy of the statements of the Company's officers made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following additional conditions, unless waived in writing
by the Representatives:
(a) The Registration Statement shall have been declared
effective by the Commission not later than 5:30 p.m., Washington, D. C. time,
prior to or on the date of this Agreement, or such later time as shall have
been consented to by the Representatives; all filings required by Rules 424(b)
and 430A under the Act shall have been timely made; no stop order suspending
the effectiveness of the Registration Statement shall have been issued by the
Commission or any state securities commission nor, to the knowledge of the
Company, shall any proceedings for that purpose have been initiated or
threatened; and any request of the Commission or any state securities
commission for inclusion of additional information in the Registration
Statement, or otherwise, shall have been complied with to the satisfaction of
the Representatives.
(b) Since the dates as of which information is given in the
Registration Statement:
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(i) there shall not have occurred any change or
development involving, or which could be expected to involve,
a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business; and
(ii) the Company shall not have sustained any loss
or interference from any labor dispute, strike, fire, flood,
windstorm, accident or other calamity (whether or not
insured) or from any court or governmental action, order or
decree,
the effect of which on the Company, in any such case described in clause (i) or
(ii) above, is in the opinion of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement and the Prospectus.
(c) The Representatives shall not have advised the Company
that the Registration Statement or the Prospectus contains an untrue statement
of fact that, in the opinion of the Representatives or counsel for the
Underwriters, is material, or omits to state a fact that, in the opinion of the
Representatives or such counsel, is material and is required to be stated
therein or necessary to make the statements therein not misleading.
(d) The Representatives shall have received an opinion of
Trenam, Kemker, Scharf, Barkin, Frye, X'Xxxxx & Xxxxxx, P.A., counsel for the
Company, addressed to the Representatives, as the representatives of the
Underwriters, and dated the First Closing Date or the Second Closing Date, as
the case may be, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation and 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 presently conducted
and as described in the Prospectus and the Registration
Statement. The Company is duly registered and qualified to do
business as a foreign corporation under the laws of, and is
in good standing as such in, each jurisdiction in which such
registration or qualification is required, except where the
failure to so register or qualify would not have a Material
Adverse Effect.
(ii) The authorized capital stock of the Company
consists of 35.0 million shares of Common Stock, par value
$0.01 per share, and 3.0 million shares of Preferred Stock,
and all such stock conforms as to legal matters to the
descriptions thereof in the Prospectus and the Registration
Statement.
(iii) The issued and outstanding shares of capital
stock of the Company immediately prior to the issuance and
sale of the Shares have been duly authorized and validly
issued, are fully paid and nonassessable, and there are no
preemptive,
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preferential or, except as described in the Prospectus, other
rights to subscribe for or purchase any shares of capital
stock of the Company, and to such counsel's knowledge, no
shares of capital stock of the Company have been issued in
violation of such rights.
(iv) The Company has no subsidiaries and the Company
does not own any equity interest in or control, directly or
indirectly, any other corporation, limited liability company,
partnership, joint venture, association, trust or other
business organization.
(v) The certificates for the Shares to be delivered
hereunder are in due and proper form and conform to the
requirements of applicable law and, when duly countersigned
by the Company's transfer agent and delivered to the
Representatives or upon the order of the Representatives
against payment of the agreed consideration therefor in
accordance with the provisions of this Agreement, the Shares
represented thereby will be duly authorized and validly
issued, fully paid and nonassessable, and free of any
preemptive, preferential or other rights to subscribe for or
purchase shares of Common Stock.
(vi) The Registration Statement has become effective
under the Act, and to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
initiated or are threatened under the Act or any Blue Sky
Laws. The Registration Statement and the Prospectus and any
amendment or supplement thereto (except for the financial
statements and other statistical or financial data included
therein as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Act. No facts have come to the attention
of such counsel which lead it to believe that either the
Registration Statement or the Prospectus or any amendment
or supplement thereto, contains any untrue statement of a
material fact or omitted or will omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus,
as of the First Closing Date or the Second Closing Date, as
the case may be, contained any untrue statement of a
material fact or omitted or will omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances under which they were made (except for the
financial statements and other financial data included
therein as to which such counsel need express no opinion).
To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened, including,
without limitation, any such proceedings that are related
to environmental or employment discrimination matters,
required to be described in the Registration Statement or
the Prospectus which are not so described or which question
the validity of this Agreement or any action taken or to be
taken pursuant thereto, nor is there any transaction,
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relationship, agreement, contract or other document of a
character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement by the Act, which is not
described or filed as required.
(vii) The Company has full corporate power and
authority to enter into and perform this Agreement. The
performance of the Company's obligations hereunder and the
consummation of the transactions described herein have been
duly authorized by the Company by all necessary corporate
action and this Agreement has been duly executed and
delivered by and on behalf of the Company, and is a legal,
valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except that
rights to indemnity or contribution may be limited by
applicable law and except as enforceability of this Agreement
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally, and by equitable principles limiting the right to
specific performance or other equitable relief. No consent,
approval, authorization or other order or decree of any
court, regulatory or governmental body, arbitrator,
administrative agency or other instrumentality of the United
States or other country or jurisdiction having jurisdiction
over the Company is required for the execution and delivery
of this Agreement or the consummation of the transactions
contemplated by this Agreement (except for compliance with
the Act, the Exchange Act, applicable Blue Sky Laws and the
clearance of the underwriting arrangements by the NASD).
(viii) The execution, delivery and performance of
this Agreement by the Company will not: (A) violate any
provisions of the Articles of Incorporation or By-laws of the
Company; (B) violate any provisions of, or result in the
breach, modification or termination of, or constitute a
default under, any agreement, lease, franchise, license,
indenture, permit, mortgage, deed of trust, other evidence of
indebtedness or other instrument to which the Company is a
party or by which the Company, or any of its owned or leased
property, is bound and which is filed as an exhibit to the
Registration Statement; or (C) violate any statute,
ordinance, order, rule, decree or regulation of any court,
regulatory or governmental body, arbitrator, administrative
agency or other instrumentality of the United States or other
country or jurisdiction having jurisdiction over the Company
(assuming compliance with all applicable federal and state
securities laws).
(ix) To such counsel's knowledge, except as
described in the Prospectus, there are no holders of Common
Stock or other securities of the Company, or securities that
are convertible or exchangeable into Common Stock or other
securities of the Company, that have rights to the
registration of such securities under the Act or any Blue Sky
Laws.
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(x) The Common Stock has been designated for
inclusion as a National Market security on Nasdaq and is
registered under the Exchange Act.
(xi) The Company is not, and with the giving of
notice or passage of time or both would not be, in violation
of its Articles of Incorporation or By-laws or, to such
counsel's knowledge, in default in any material respect in
the performance of any agreement, lease, franchise, license,
permit, mortgage, deed of trust, evidence of indebtedness or
other instrument, or any other document that is filed as an
exhibit to the Registration Statement, to which the Company
is subject or bound.
(xii) The Company is not an "investment company," an
"affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended,
and, upon its receipt of any proceeds from the sale of the
Shares, the Company will not become or be deemed to be an
"investment company" thereunder.
(xiii) The description in the Registration Statement
and the Prospectus of statutes, law, regulations, legal and
governmental proceedings, and contracts and other legal
documents described therein fairly and correctly present, in
all material respects, the information required to be
included therein by the Act.
(xiv) All offers and sales by the Company of its
capital stock before the date hereof were at all relevant
times duly registered under or exempt from the registration
requirements of the Act, and were duly registered under or
the subject of an available exemption from the registration
requirements of any applicable Blue Sky Laws.
In rendering such opinion, counsel for the Company may rely, to the
extent counsel deems such reliance proper, as to matters of fact upon
certificates of officers of the Company and of governmental officials, and
copies of all such certificates shall be furnished to the Representatives and
for the Underwriters on or before each Closing Date.
(e) The Representatives shall have received an opinion of
Xxxx, Xxxxxx & Xxxxxxxxx, counsel for the Underwriters, dated the First Closing
Date or the Second Closing Date, as the case may be, with respect to the
issuance and sale of the Shares by the Company, the Registration Statement and
other related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents and shall have exhibited to them
such papers and records as they request for the purpose of enabling them to
pass upon such matters.
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(f) The Representatives shall have received on each
Closing Date, a certificate of Xxxxxx Xxxxxxx, President and Chief Executive
Officer, and Xxxx Xxxxxxx, Executive Vice President and Chief Administrative
Officer, of the Company, to the effect that:
(i) The representations and warranties of the
Company set forth in Section 2 hereof are true and correct as
of the date of this Agreement and as of the date of such
certificate, and the Company has complied with all the
agreements and satisfied all the conditions to be performed
or satisfied by it at or prior to the date of such
certificate.
(ii) The Commission has not issued an order
preventing or suspending the use of the Prospectus or any
Preliminary Prospectus or any amendment or supplement
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and to the knowledge
of the respective signatories, no proceedings for that
purpose have been initiated or are pending or contemplated
under the Act or under the Blue Sky Laws of any jurisdiction.
(iii) Each of the respective signatories has
carefully examined the Registration Statement and the
Prospectus, and any amendment or supplement thereto, and such
documents contain all statements required to be stated
therein, and do not include any untrue statement of a
material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading, and since the date on which the Registration
Statement was initially filed, no event has occurred that was
required to be set forth in an amended or supplemented
prospectus or in an amendment to the Registration Statement
that has not been so set forth.
(iv) Since the date on which the Registration
Statement was initially filed with the Commission, there
shall not have occurred any change or development involving,
or which could be expected to involve, a Material Adverse
Effect, whether or not arising from transactions in the
ordinary course of business, except as disclosed in the
Prospectus and the Registration Statement as heretofore
amended or (but only if the Representatives expressly consent
thereto in writing) as disclosed in an amendment or
supplement thereto filed with the Commission and delivered to
the Representatives after the execution of this Agreement;
since such date and except as so disclosed or in the ordinary
course of business, the Company has not incurred any
liability or obligation, direct or indirect, or entered into
any transaction which is material to the Company; since such
date and except as so disclosed, there has not been any
change in the outstanding capital stock of the Company, or
any change that is material to the Company in the short-term
debt or long-term debt of the Company; since such date and
except as so disclosed, the Company has not acquired any of
the Common Stock or other capital stock of the Company nor
has the Company declared or paid any dividend, or made any
other
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distribution, upon its outstanding Common Stock payable to
stockholders of record on a date prior to such Closing Date;
since such date and except as so disclosed, the Company has
not incurred any material contingent obligations, and no
material litigation is pending or threatened against the
Company; and, since such date and except as so disclosed, the
Company has not sustained any material loss or interference
from any strike, fire, flood, windstorm, accident or other
calamity (whether or not insured) or from any court or
governmental action, order or decree.
The delivery of the certificate provided for in this
subsection (f) shall be and constitute a representation and warranty of the
Company as to the facts required in the immediately foregoing clauses (i),
(ii), (iii) and (iv) to be set forth in said certificate.
(g) At the time this Agreement is executed and also on each
Closing Date, there shall be delivered to the Representatives a letter
addressed to the Representatives, as the representative of the Underwriters,
from Xxxxxx Xxxxxxxx LLP, the Company's independent accountants, the first
letter to be dated the date of this Agreement, the second letter to be dated
the First Closing Date and the third letter (if applicable) to be dated the
Second Closing Date, which shall be in form and substance satisfactory to the
Representatives and shall contain information as of a date within five days of
the date of such letter. There shall not have been any change or decrease set
forth in any of the letters referred to in this subsection (g) which makes it
impracticable or inadvisable in the judgment of the Representatives to proceed
with the public offering or purchase of the Shares as contemplated hereby.
(h) The Shares shall have been qualified or registered for
sale under the Blue Sky Laws of such jurisdictions as shall have been specified
by the Representatives, the underwriting terms and arrangements for the
offering shall have been cleared by the NASD, and the Common Stock shall have
been designated for inclusion as a Nasdaq National Market security on Nasdaq
and shall have been registered under the Exchange Act.
(i) Such further certificates and documents as the
Representatives may reasonably request (including certificates of officers of
the Company).
All such opinions, certificates, letters and documents shall
be in compliance with the provisions hereof only if they are satisfactory to
the Representatives and to Xxxx, Gerber & Xxxxxxxxx, counsel for the
Underwriters. The Company shall furnish the Representatives with such manually
signed or conformed copies of such opinions, certificates, letters and
documents as the Representatives may reasonably request.
If any condition to the Underwriters' obligations hereunder
to be satisfied prior to or at either Closing Date is not so satisfied, this
Agreement at the election of the Representatives will terminate upon
notification to the Company without liability on the part of (i) any
Underwriter, including the Representatives, (ii) the Company except for the
provisions of Section
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6 (o) hereof, the expenses to be paid by the Company pursuant to Section 7
hereof and (iii) except to the extent provided in Section 10 hereof.
SECTION 9. MAINTAIN EFFECTIVENESS OF REGISTRATION STATEMENT.
The Company will use its best efforts to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement, and, if such stop
order is issued, to obtain as soon as possible the lifting thereof.
SECTION 10. INDEMNIFICATION.
(a) The Company agrees 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 losses, claims,
damages, expenses, liabilities or actions in respect thereof ("Claims"), joint
or several, to which such Underwriter or each such controlling person may
become subject under the Act, the Exchange Act, Blue Sky Laws or other federal
or state statutory laws or regulations, at common law or otherwise (including
payments made in settlement of any litigation), insofar as such Claims arise
out of or are based upon any breach of any representation, warranty or covenant
made by the Company in this Agreement, or any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto, or in any application filed under any Blue Sky Law or other document
executed by the Company for that purpose or based upon written information
furnished by the Company and filed in any state or other jurisdiction to
qualify any or all of the Shares under the securities laws thereof (any such
document, application or information being hereinafter called a "Blue Sky
Application") or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Company agrees to
reimburse each Underwriter and each such controlling person for any legal fees
or other expenses incurred by such Underwriter or any such controlling person
in connection with investigating or defending any such Claim; provided,
however, that the Company will not be liable in any such case to the extent
that any such Claim arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
supplement thereto or in any Blue Sky Application in reliance upon and in
conformity with the written information furnished to the Company pursuant to
Section 4 of this Agreement. The indemnification obligations of the Company as
provided above are in addition to and in no way limit any liabilities the
Company may otherwise have.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors and each of its
officers who signs the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Act or the Exchange Act against
any Claim to which the Company, or any such director, officer, controlling
person may become subject under the Act, the Exchange Act, Blue Sky Laws or
other federal or state statutory laws or regulations, at common law or
otherwise (including payments
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made in settlement of any litigation, if such settlement is effected with the
written consent of such Underwriter and Baird), insofar as such Claim arises
out of or is based upon any untrue or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or in any Blue Sky
Application, or arises out of or is based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or in any Blue Sky Application, in reliance solely upon and in conformity with
the written information furnished by the Representatives to the Company
pursuant to Section 4 of this Agreement. Each Underwriter will severally
reimburse any legal fees or other expenses incurred by the Company, or any such
director, officer, controlling person in connection with investigating or
defending any such Claim, and from any and all Claims solely resulting from
failure of an Underwriter to deliver a Prospectus, if the person asserting such
Claim purchased Shares from such Underwriter and a copy of the Prospectus (as
then amended if the Company shall have furnished any amendments thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus
(as so amended) would have cured the defect giving rise to such Claim. The
indemnification obligations of each Underwriter as provided above are in
addition to any liabilities any such Underwriter may otherwise have.
Notwithstanding the provisions of this Section, no Underwriter shall be
required to indemnify or reimburse the Company, or any officer, director,
controlling person in an aggregate amount in excess of the total price at which
the Shares purchased by any such Underwriter hereunder were offered to the
public, less the amount of any damages such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of the commencement of any action in respect of a Claim,
such indemnified party will, if a Claim in respect thereof is to be made
against an indemnifying party under this Section 10, notify the indemnifying
party in writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve an indemnifying party from any liability it
may have to any indemnified party under this Section 10 or otherwise. In case
any such action is brought against any indemnified party, and such indemnified
party notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in and, to the extent that
he, she or it may wish, jointly with all other indemnifying parties, similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory
to such indemnified party; provided, however, if the defendants in any such
action include both the indemnified party and any indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to the indemnified party and/or other indemnified parties
which are different from or additional to those available to any indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties.
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(d) Upon receipt of notice from the indemnifying party to
such indemnified party of the indemnifying party's election to assume the
defense of such action and upon approval by the indemnified party of counsel
selected by the indemnifying party, the indemnifying party will not be liable
to such indemnified party under this Section 10 for any legal fees or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, unless:
(i) the indemnified party shall have employed separate
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the last sentence of subsection (c) of
this Section 10.
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the indemnified
party's notice to the indemnifying party of commencement of the
action; or
(iii) the indemnifying party has authorized the employment of
counsel at the expense of the indemnifying party.
(e) If the indemnification provided for in this Section is
unavailable to an indemnified party under subsection (a) or (b) hereof in
respect of any Claim referred to therein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall, subject to the limitations
hereinafter set forth, contribute to the amount paid or payable by such
indemnified party as a result of such Claim:
(f) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Underwriters from the
offering of the Shares; or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above, but also the relative fault of the Company and the Underwriters
in connection with the statements or omissions which resulted in such
Claim, as well as any other relevant equitable considerations.
The relative benefits received by each of the Company and the
Underwriters shall be deemed to be in such proportion so that the Underwriters
are responsible for that portion represented by the percentage that the amount
of the underwriting discounts and commissions per share appearing on the cover
page of the Prospectus bears to the public offering price per share appearing
thereon, and the Company (including its officers and directors and controlling
persons) is responsible for the remaining portion. The relative fault of the
Company 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 Underwriters and the parties'
relative intent,
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knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
Claims referred to above shall be deemed to include, subject to the limitations
set forth in subsections (c) and (d) of this Section 10, any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
(g) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section were determined
by pro rata or per capita allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method or allocation which does
not take into account the equitable considerations referred to in subsection
(d) of this Section 10. Notwithstanding the other provisions of this Section
10, no Underwriter shall be required to contribute any amount that is greater
than the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement 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.
SECTION 11. DEFAULT OF UNDERWRITERS. It shall be a condition
to the obligations of each Underwriter to purchase the Shares in the manner as
described herein, that, except as hereinafter provided in this Section, each of
the Underwriters shall purchase and pay for all the Shares agreed to be
purchased by such Underwriter hereunder upon tender to the Representatives of
all such Shares in accordance with the terms hereof. If any Underwriter or
Underwriters default in their obligations to purchase Shares hereunder on
either the First Closing Date or the Second Closing Date and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed ten percent (10%) of the total number of
Shares which the Underwriters are obligated to purchase on such Closing Date,
the Representatives may make arrangements for the purchase of such Shares by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date the nondefaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Shares which such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of Shares with respect to which such default or defaults occur
is greater than ten percent (10%) of the total number of Shares which the
Underwriters are obligated to purchase on such Closing Date, and arrangements
satisfactory to the Representatives for the purchase of such Shares by other
persons are not made within thirty-six hours after such default, this Agreement
will terminate without liability on the part of any nondefaulting Underwriter
or the Company, except for the expenses to be paid by the Company pursuant to
Section 7 hereof and except to the extent provided in Section 10 hereof.
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In the event that Shares to which a default relates are to be
purchased by the nondefaulting Underwriters or by another party or parties, the
Representatives shall have the right to postpone the First Closing Date or the
Second Closing Date, as the case may be, for not more than seven business days
in order that the necessary changes in the Registration Statement, Prospectus
and any other documents, as well as any other arrangements, may be effected. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
SECTION 12. EFFECTIVE DATE. This Agreement shall become
effective upon the execution and delivery of this Agreement by the parties
hereto. Such execution and delivery shall include an executed copy of this
Agreement sent by telecopier, facsimile transmission or other means of
transmitting written documents.
SECTION 13. TERMINATION. Without limiting the right to
terminate this Agreement pursuant to any other provision hereof, this Agreement
may be terminated by the Representatives prior to or on the First Closing Date
and the over-allotment option from the Company referred to in Section 5 hereof,
if exercised, may be cancelled by the Representatives at any time prior to or
on the Second Closing Date, if in the judgment of the Representatives, payment
for and delivery of the Shares is rendered impracticable or inadvisable
because:
(a) additional governmental restrictions, not in force and
effect on the date hereof, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally established on
the New York Stock Exchange or the American Stock Exchange, or trading in
securities generally shall have been suspended or materially limited on either
such exchange or on Nasdaq or a general banking moratorium shall have been
established by either federal or state authorities in New York, Chicago or
Wisconsin;
(b) any event shall have occurred or shall exist which makes
untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or which is not reflected in the
Registration Statement but should be reflected therein to make the statements
or information contained therein not misleading in any material respect; or
(c) an outbreak or escalation of hostilities or other
national or international calamity or any substantial change in political,
financial or economic conditions shall have occurred or shall have accelerated
to such extent, in the judgment of the Representatives, as to have a material
adverse effect on the financial markets of the United States, or to make it
impracticable or inadvisable to proceed with completion of the sale of and
payment for the Shares as provided in this Agreement.
Any termination pursuant to this Section shall be without
liability on the part of any Underwriter to the Company, or on the part of the
Company to any Underwriter, except for expenses to be paid by the Company
pursuant to Section 7 hereof or reimbursed by the Company
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pursuant to Section 6(o) hereof and except as to indemnification to the extent
provided in Section 10 hereof.
SECTION 14. REPRESENTATIONS AND INDEMNITIES TO SURVIVE
DELIVERY. The respective indemnities, agreements, representations, warranties,
covenants and other statements of the Company, of its officers or directors,
and of the several Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or the Company or any of its or their partners,
officers, directors or any controlling person, as the case may be, and will
survive delivery of and payment for the Shares sold hereunder.
SECTION 15. NOTICES. All communications hereunder will be in
writing and, if sent to the Representatives, will be mailed, delivered,
telecopied (with receipt confirmed) or telegraphed and confirmed to C.
Xxxxxxxxxxx Xxxxxxx, Xxxxxx X. Xxxxx & Co. Incorporated, 000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, with a copy to Xxxxxxx X. Holzman,
Neal, Gerber & Xxxxxxxxx, Xxx Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
and if sent to the Company, will be mailed, delivered, telecopied (with receipt
confirmed) or telegraphed and confirmed to the Company at Lamalie Associates,
Inc., Xxxxxxxxx Xxxxx, Xxxxx 000X, 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx
00000-0000, Attention: Xxxx X. Xxxxxxx, with a copy to Xxxxxxx X. Xxxxxxx,
Trenam, Kemker, Scharf, Barkin, Frye, X'Xxxxx & Xxxxxx, P.A., 0000 Xxxxxxx
Xxxxx, 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000.
SECTION 16. SUCCESSORS. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors, personal representatives and assigns, and to the benefit of the
officers and directors and controlling persons referred to in Section 10 hereof
and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares as such from any of
the Underwriters merely by reason of such purchase.
SECTION 17. PARTIAL UNENFORCEABILITY. If any section,
paragraph, clause 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 clause or provision
hereof.
SECTION 18. APPLICABLE LAW; COUNTERPARTS. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State of Wisconsin without reference to conflict of law principles thereunder.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument, and shall be effective when at least
one counterpart hereof shall have been executed by or on behalf of each party
hereto.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters, including the Representatives, all in accordance with its terms.
Very truly yours,
LAMALIE ASSOCIATES, INC.
By:
-------------------------------------
, President
----------------
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date
first above written.
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXX XXXXX & COMPANY, L.L.C.
By: XXXXXX X. XXXXX & CO. INCORPORATED
Acting as Representatives of the several
Underwriters (including themselves) identified
in Schedule I annexed hereto.
By:
------------------------------------
Authorized Representative
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LAMALIE ASSOCIATES, INC.
SCHEDULE I
NUMBER OF FIRM
SHARES TO
NAME OF UNDERWRITER BE PURCHASED
Xxxxxx X. Xxxxx & Co. Incorporated.........................................
Xxxxxxx Xxxxx & Company, L.L.C.............................................
Total.....
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