1
EXHIBIT 1.1
4,000,000 SHARES
ABOVENET COMMUNICATIONS INC
COMMON STOCK
UNDERWRITING AGREEMENT
April ____, 1999
CIBC Oppenheimer Corp.
Xxxxxx Brothers Inc.
PaineWebber Incorporated
Xxxxx Xxxxx Xxxxxx & Company
c/o CIBC Oppenheimer Corp.
CIBC Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
AboveNet Communications Inc., a Delaware corporation (the "Company") and
the Company's stockholders listed on Exhibit A attached hereto, acting severally
and not jointly, (the "Selling Stockholders"), propose, subject to the terms and
conditions contained herein, to sell to you and the other underwriters named on
Schedule I to this Agreement (the "Underwriters"), for whom you are acting as
Representatives (the "Representatives"), an aggregate of 4,000,000 shares (the
"Firm Shares") of the Company's Common Stock, $0.01 par value (the "Common
Stock"). Of the 4,000,000 Firm Shares, 2,700,000 are to be issued and sold by
the Company and 1,300,000 are to be sold by the Selling Stockholders. The
respective amounts of the Firm Shares to be purchased by each of the several
Underwriters are set forth opposite their names on Schedule I hereto. In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional 600,000 shares (the "Option Shares") of Common
Stock from it for the purpose of covering over-allotments in connection with the
sale of the Firm Shares. The Firm Shares and the Option Shares are together
called the "Shares."
1. Sale and Purchase of the Shares. On the basis of the representations,
warranties and agreements contained in, and subject to the terms and conditions
of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase
from the Company, at a price of $_____ per share (the "Initial Price"),
the number of Firm Shares set forth opposite the name of such
Underwriter under the column
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"Number of Firm Shares to be Purchased from the Company" on Schedule I
to this Agreement, subject to adjustment in accordance with Section 11
hereof. The Selling Stockholders agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Selling Stockholders, at the "Initial
Price," the number of Firm Shares set forth opposite the name of such
Underwriter under the column "Number of Firm Shares to be Purchased from
the Selling Stockholders" on Schedule I to this Agreement, subject to
adjustment in accordance with Section 11 hereof.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option
Shares at the Initial Price. The number of Option Shares to be purchased
by each Underwriter shall be the same percentage (adjusted by the
Representatives to eliminate fractions) of the total number of Option
Shares to be purchased by the Underwriters as such Underwriter is
purchasing of the Firm Shares. Such option may be exercised only to
cover over-allotments in the sales of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time on or
before 9:00 a.m. San Francisco, California time, on the business day
before the Firm Shares Closing Date (as defined below), and only once
thereafter within 30 days after the date of this Agreement, in each case
upon written or facsimile notice, or verbal or telephonic notice
confirmed by written or facsimile notice, by the Representatives to the
Company no later than 9:00 a.m. San Francisco, California time, on the
business day before the Firm Shares Closing Date or at least two
business days before the Option Shares Closing Date (as defined below),
as the case may be, setting forth the number of Option Shares to be
purchased and the time and date (if other than the Firm Shares Closing
Date) of such purchase.
2. Delivery and Payment. Delivery by the Company and the Selling
Stockholders of the Firm Shares to the Representatives for the respective
accounts of the Underwriters, and payment of the purchase price by certified or
official bank check or checks payable in New York Clearing House (next day)
funds drawn to the order of, or by wire transfer to the account designated by,
the Company for the shares purchased from the Company and the Selling
Stockholders for the shares purchased from the Selling Stockholders, against
delivery of the respective certificates therefor to the Representatives, shall
take place at the offices of CIBC Xxxxxxxxxxx Corp., at CIBC Xxxxxxxxxxx Xxxxx,
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City
time, (a) on the third (3rd) full business day following the date of this
Agreement, (b) if this Agreemetn is executed and delivered after 4:30 p.m., New
York City time, the fourth (4th) full business day following the day that this
Agreement is executed and delivered or (c) at such time on such other date, not
later than 10 business days after the date of this Agreement, as shall be agreed
upon by the Company and the Representatives (such time and date of delivery and
payment are called the "Firm Shares Closing Date").
In the event the option with respect to the Option Shares is exercised,
delivery by the Company of the Option Shares to the Representatives for the
respective accounts of the Underwriters and payment of the purchase price by
certified or official bank check or checks payable in New York Clearing House
(next day) funds or by wire transfer to the Company shall
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take place at the offices of CIBC Xxxxxxxxxxx Corp. specified above at the time
and on the date (which may be the same date as, but in no event shall be earlier
than, the Firm Shares Closing Date) specified in the notice referred to in
Section 1(b) (such time and date of delivery and payment are called the "Option
Shares Closing Date"). The Firm Shares Closing Date and the Option Shares
Closing Date are called, individually, a "Closing Date" and, together, the
"Closing Dates."
Certificates evidencing the Shares shall be registered in such names and
shall be in such denominations as the Representatives shall request at least two
full business days before the Firm Shares Closing Date or, in the case of Option
Shares, on the day of notice of exercise of the option as described in Section
l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering. The Company
has prepared in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the published rules and regulations
thereunder (the "Rules") adopted by the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-75795), including a
preliminary prospectus relating to the Shares, and has filed with the Commission
the Registration Statement (as hereinafter defined) and such amendments thereof
as may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereof) and of the related
preliminary prospectus have heretofore been delivered by the Company to you. The
term "preliminary prospectus" means any preliminary prospectus (as described in
Rule 430 of the Rules) included at any time as a part of the Registration
Statement. The Registration Statement as amended at the time and on the date it
becomes effective (the "Effective Date"), including all exhibits and
information, if any, deemed to be part of the Registration Statement pursuant to
Rule 424(b) and Rule 430A of the Rules, is called the "Registration Statement."
The term "Prospectus" means the prospectus in the form first used to confirm
sales of the Shares (whether such prospectus was included in the Registration
Statement at the time of effectiveness or was subsequently filed with the
Commission pursuant to Rule 424(b) of the Rules).
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Shares, as set forth in
and pursuant to the Prospectus, as soon after the Effective Date and the date of
this Agreement as the Representatives deem advisable. The Company and the
Selling Stockholders hereby confirm that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each preliminary prospectus
and are authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. Representations and Warranties of the Company. The Company hereby
represents and warrant to each Underwriter as follows:
(a) On the Effective Date, the Registration Statement complied,
and on the date of the Prospectus, on the date any post-effective
amendment to the Registration Statement becomes effective, on the date
any supplement or
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amendment to the Prospectus is filed with the Commission and on each
Closing Date, the Registration Statement and the Prospectus (and any
amendment thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Securities Act and the
Rules and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder. The
Registration Statement did not, as of the Effective Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and on the other dates referred to
above neither the Registration Statement nor the Prospectus, nor any
amendment thereof or supplement thereto, will contain any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. When any related preliminary
prospectus was first filed with the Commission (whether filed as part of
the Registration Statement or any amendment thereto or pursuant to Rule
424(a) of the Rules) and when any amendment thereof or supplement
thereto was first filed with the Commission, such preliminary prospectus
as amended or supplemented complied in all material respects with the
applicable provisions of the Securities Act and the Rules and did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading. Notwithstanding the
foregoing, the Company makes no representation or warranty as to the
statements contained under the caption "Underwriting" in the Prospectus.
The Company acknowledges that the only information furnished in writing
by the Representatives on behalf of the several Underwriters for use in
the Registration Statement or the Prospectus is the statements contained
under the caption "Underwriting" in the Prospectus.
(b) All contracts and other documents required to be filed as
exhibits to the Registration Statement have been filed with the
Commission as exhibits to the Registration Statement.
(c) The financial statements of the Company (including all notes
and schedules thereto) included in the Registration Statement and
Prospectus present fairly the financial position, the results of
operations, cash flows and the stockholders' equity and the other
information purported to be shown therein of the Company at the
respective dates and for the respective periods to which they apply; and
such financial statements have been prepared in conformity with
generally accepted accounting principles, consistently applied
throughout the periods involved, and all adjustments necessary for a
fair presentation of the results for such periods have been made. The
summary and selected financial data included in the Prospectus present
fairly the information shown therein as at the respective dates and for
the respective periods specified and the summary and selected financial
data have been presented on a basis consistent with the consolidated
financial statements so set forth in the Prospectus and other financial
information.
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(d) Deloitte & Touche LLP, whose reports are filed with the
Commission as a part of the Registration Statement, are and, during the
periods covered by their reports, were independent public accountants as
required by the Securities Act and the Rules.
(e) The Registration Statement is effective under the Securities
Act and no stop order preventing or suspending the effectiveness of the
Registration Statement or suspending or preventing the use of the
Prospectus has been issued and no proceedings for that purpose have been
instituted or are threatened under the Securities Act; any required
filing of the Prospectus and any supplement thereto pursuant to Rule
424(b) of the Rules has been or will be made in the manner and within
the time period required by such Rule 424(b).
(f) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware.
The Company has no subsidiary or subsidiaries and does not control,
directly or indirectly, any corporation, partnership, joint venture,
association or other business organization. The Company is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the character or location of
its assets or properties (owned, leased or licensed) or the nature of
its business makes such qualification necessary, except for such
jurisdictions where the failure to so qualify would not have a material
adverse effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company (a "Material Adverse Effect"). Except as disclosed in the
Registration Statement and the Prospectus, the Company does not own,
lease or license any asset or property or conduct any material business
outside the United States of America. The Company has all requisite
corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and
from all governmental or regulatory bodies or any other person or entity
(collectively, the "Permits"), to own, lease and license its assets and
properties and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus, all of which
are valid and in full force and effect, except where the lack of such
Permits would not have a Material Adverse Effect; no such Permit
contains a materially burdensome restriction other than as disclosed in
the Registration Statement and the Prospectus; the Company has fulfilled
and performed in all material respects all its material obligations with
respect to such Permits and no event has occurred that allows, or after
notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the Company
thereunder. Except as may be required under the Securities Act and state
and foreign Blue Sky laws, the Company has all such corporate power and
authority, and all such Permits as are required to enter into, deliver
and perform this Agreement and to issue and sell the Shares.
(g) Except as disclosed in the Prospectus, the Company owns or
is licensed, or otherwise possesses adequate and enforceable rights to
use all copyrights, copyright applications, licenses, know-how and other
similar rights
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and proprietary knowledge (collectively, "Intangibles") and, to its
knowledge, all trademarks, trademark applications, trade names and
service marks (collectively, the "Trademarks") necessary for the conduct
of its business as currently conducted and as described in the
Registration Statement and the Prospectus. The Company has not received
any notice of, and is not aware of, any infringement of or conflict with
asserted rights of others with respect to any Intangibles or Trademarks
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(h) The Company has good title to each of the items of personal
property which are reflected in the financial statements referred to in
Section 4(c) or are referred to in the Registration Statement and the
Prospectus as being owned by it and valid and enforceable leasehold
interests in each of the items of real and personal property which are
referred to in the Registration Statement and the Prospectus as being
leased by it, in each case free and clear of all liens, encumbrances,
claims, security interests and defects, other than those described in
the Registration Statement and the Prospectus and those which do not and
will not have a Material Adverse Effect, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles. Nothing in this Section 4(h) shall be interpreted
as limiting the Company's representation in Section 4(f) above.
(i) Other than as described in the Registration Statement and
the Prospectus, there is no litigation or governmental or other
proceeding or investigation before any court or before any public body
or board pending or, to the Company's knowledge, threatened (and the
Company does not know of any basis therefore) against, or involving the
Company or its assets, properties or business, which might have a
Material Adverse Effect, affect the consummation of this Agreement or
which is required to be disclosed in the Registration Statement and the
Prospectus that is not so disclosed.
(j) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
described therein, (a) there has not been any material adverse change
with regard to the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company, whether or not arising from transactions in the ordinary course
of business other than as a result of increased operating expenses as
contemplated by the Prospectus; (b) the Company has not sustained any
material loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order
or decree; and (c) since the date of the latest balance sheet included
in the Registration Statement and the Prospectus, except as reflected
therein, the Company has not (i) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed money,
except such liabilities or obligations incurred in the ordinary course
of business
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and securities issued or issuable to employees, directors, consultants
and other service providers in the ordinary course of business, (ii)
entered into any transaction not in the ordinary course of business or
(iii) declared or paid any dividend or made any distribution on any
shares of its stock or redeemed, purchased or otherwise acquired or
agreed to redeem, purchase or otherwise acquire any shares of its stock,
other than the repurchase of shares of Common Stock from employees,
consultants or other service providers whose services have been
terminated with the Company.
(k) There is no document, contract or other agreement of a
character required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required by the Securities Act or
Rules. Each description of a contract, document or other agreement in
the Registration Statement and the Prospectus accurately reflects in all
respects the terms of the underlying document, contract or agreement.
Each agreement described in the Registration Statement and Prospectus or
listed in the Exhibits to the Registration Statement is in full force
and effect and, to its knowledge, is valid and enforceable by and
against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles. Neither the Company, nor to the Company's knowledge, any
other party is in default in the observance or performance of any term
or obligation to be performed by it under any such agreement, and no
event has occurred which with notice or lapse of time or both would
constitute such a default, in any such case which default or event would
have a Material Adverse Effect.
(l) The Company is not in violation of any term or provision of
its charter or by-laws or of any franchise, license, permit, judgment,
decree, order, statute, rule or regulation, where the consequences of
such violation would have a Material Adverse Effect.
(m) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance and
sale by the Company of the Shares) will give rise to a right to
terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company pursuant to the
terms of, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which it or any of its
properties or businesses is bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation applicable to the
Company or violate any provision of the charter or by-laws of
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the Company, except for such consents or waivers which have already been
obtained and are in full force and effect.
(n) The Company has authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the Prospectus. All of
the outstanding shares of Common Stock have been duly and validly issued
and are fully paid and nonassessable and none were issued in violation
of any preemptive or other similar right. There are no statutory
preemptive or other similar rights to subscribe for or to purchase or
acquire any shares of Common Stock of the Company or any such rights
pursuant to its Certificate of Incorporation or by-laws or any agreement
or instrument to or by which the Company is a party or bound. The
Shares, when issued and sold pursuant to this Agreement, will be duly
and validly issued, fully paid and nonassessable and none of them will
be issued in violation of any preemptive or other similar right. Except
as disclosed in the Registration Statement and the Prospectus, there is
no outstanding option, warrant or other right calling for the issuance
of, and there is no commitment, plan or arrangement to issue, any share
of stock of the Company or any security convertible into, or exercisable
or exchangeable for, such stock. The Common Stock and the Shares conform
in all material respects to all statements in relation thereto contained
in the Registration Statement and the Prospectus.
(o) Except as disclosed in the Registration Statement and the
Prospectus, no holder of any security of the Company has the right to
have any security owned by such holder included in the Registration
Statement or to demand registration of any security owned by such holder
during the period ending 180 days after the date of this Agreement. Each
Selling Stockholder, director, executive officer and each beneficial
owner of one percent (1%) or more shares of Common Stock of the Company
has delivered to the Representatives his enforceable written lock-up
agreement in the form attached to this Agreement ("Lock-Up Agreement").
(p) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares by
the Company. This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes and will
constitute legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their respective
terms, except (i) as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles and (ii) to the extent that rights to
indemnity or contribution under this Agreement may be limited by
Federal and state securities laws or the public policy underlying such
laws.
(q) The Company is not involved in any labor dispute nor, to the
knowledge of the Company, is any such dispute threatened, which dispute
would have a Material Adverse Effect. The Company is not aware of any
existing or
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imminent labor disturbance by the employees of any of its principal
suppliers or contractors which would have a Material Adverse Effect. The
Company is not aware of any threatened or pending litigation between the
Company and any of its executive officers which, if adversely
determined, could have a Material Adverse Effect and has no reason to
believe that such officers will not remain in the employment of the
Company.
(r) No transaction has occurred between or among the Company and
any of its officers or directors or five percent shareholders or any
affiliate or affiliates of any such officer or director or five percent
shareholders that is required to be described in and is not described in
the Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected
to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of any
of the Shares.
(t) The Company has filed all Federal, state, local and foreign
tax returns which are required to be filed through the date hereof, or
has received extensions therefor, and has paid, or is contesting in good
faith, all taxes shown on such returns and all assessments received by
it to the extent that the same are material and have become due, and
there are no tax audits or investigations pending, which if adversely
determined would have a Material Adverse Effect; nor are there any
material proposed additional tax assessments against the Company.
(u) The Shares have been duly authorized for quotation on the
National Association of Securities Dealers Automated Quotation
("Nasdaq") National Market System, and a registration statement has been
filed on Form 8-A pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), which registration statement
complies in all material respects with the Exchange Act.
(v) The Company has complied with all of the requirements and
filed the required forms as specified in Florida Statutes Section
517.075.
(w) The books, records and accounts of the Company accurately
and fairly reflect, in reasonable detail, the transactions in, and
dispositions of, the assets of, and the results of operations of, the
Company. 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 financial statements in accordance with generally
accepted accounting principles and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management's
general or specific authorization and (iv) the recorded accountability
for assets is compared with the existing assets
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at reasonable intervals and appropriate action is taken with respect to
any differences.
(x) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the businesses in which it is engaged or propose to engage
after giving effect to the transactions described in the Prospectus; and
the Company has no reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect. The Company has not been denied any insurance coverage which it
has sought or for which it has applied.
(y) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated required to be obtained or performed by
the Company (except such additional steps as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") or may be
necessary to qualify the Shares for public offering by the Underwriters
under the state securities or Blue Sky laws) has been obtained or made
and is in full force and effect.
(z) There are no affiliations with the NASD among the Company's
officers, directors or, to the best of the knowledge of the Company, any
five percent or greater stockholder of the Company, except as set forth
in the Registration Statement or otherwise disclosed in writing to the
Representatives of the Underwriters.
(aa) (i) The Company is in compliance in all material respects
with all rules, laws and regulation relating to the use, treatment,
storage and disposal of toxic substances and protection of health or the
environment ("Environmental Law") which are applicable to its business;
(ii) the Company has not received any notice from any governmental
authority or third party of an asserted claim under Environmental Laws;
(iii) the Company has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its
business and is in compliance with all terms and conditions of any such
permit, license or approval; (iv) to the Company's knowledge, no facts
currently exist that will require the Company to make future material
capital expenditures to comply with Environmental Laws; and (v) no
property which is or has been owned, leased or occupied by the Company
has been designated as a Superfund site pursuant to the Comprehensive
Environmental Response, Compensation of Liability Act of 1980, as
amended (42 U.S.C. Section 9601, et. seq.) or otherwise designated as a
contaminated site under applicable state or local law.
(bb) The Company is not and, after giving effect to the offering
and sale of the Shares and the application of proceeds thereof as
described in the
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Prospectus, will not be an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(cc) The Company or any other person associated with or acting on
behalf of the Company, including, without limitation, any director,
officer, agent or employee of the Company has, directly or indirectly,
while acting on behalf of the Company (i) used any corporate funds for
unlawful contributions, gifts, entertainment or other unlawful expenses
relating to political activity; (ii) made any unlawful payment to
foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds; (iii)
violated any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or (iv) made any other unlawful payment.
5. Representations and Warranties of the Selling Stockholders.
(a) Each Selling Stockholder hereby represents and warrants to
each Underwriter as follows:
(i) Such Selling Stockholder has caused certificates for
the number of Shares to be sold by such Selling Stockholder
hereunder to be delivered to _______________ (the "Custodian"),
endorsed in blank or with blank stock powers duly executed, with
a signature appropriately guaranteed, such certificates to be
held in custody by the Custodian for delivery, pursuant to the
provisions of this Agreement and an agreement dated ____________
among the Custodian and such Selling Stockholder (the "Custody
Agreement").
(ii) Such Selling Stockholder has granted an irrevocable
power of attorney (the "Power of Attorney") to the person named
therein, on behalf of such Selling Stockholder, to execute and
deliver this Agreement and any other document necessary or
desirable in connection with the transactions contemplated hereby
and to deliver the shares to be sold by such Selling Stockholder
pursuant hereto.
(iii) This Agreement, the Custody Agreement, the Power of
Attorney and the Lock-Up Agreement have each been duly
authorized, executed and delivered by or on behalf of such
Selling Stockholder and, assuming due authorization, execution
and delivery by the other parties hereto, constitutes the valid
and legally binding agreement of such Selling Stockholder,
enforceable against such Selling Stockholder in accordance with
its terms.
(iv) The execution and delivery by such Selling
Stockholder of this Agreement and the performance by such Selling
Stockholder of its obligations under this Agreement (A) will not
contravene any provision of applicable law, statute, regulation
or filing or any agreement or other instrument binding upon such
Selling Stockholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction
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xxxx xxxx Xxxxxxx Xxxxxxxxxxx, (X) does not require any consent,
approval, authorization or order of or registration or filing
with any court or governmental agency or body having jurisdiction
over it, except such as may be required by the Blue Sky laws of
the various states in connection with the offer and sale of the
Shares which have been or will be effected in accordance with
this Agreement, (C) does not and will not violate any statute,
law, regulation or filing or judgment, injunction, order or
decree applicable to such Selling Stockholder or (D) will not
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of such Selling
Stockholder pursuant to the terms of any agreement or instrument
to which such Selling Stockholder is a party or by which such
Selling Stockholder may be bound or to which any of the property
or assets of such Selling Stockholder is subject.
(v) Such Selling Stockholder has, and on the Firm Shares
Closing Date will have, valid and marketable title to the Shares
to be sold by such Selling Stockholder free and clear of any
lien, claim, security interest or other encumbrance, including,
without limitation, any restriction on transfer, except as
otherwise described in the Registration Statement and Prospectus.
(vi) Such Selling Stockholder has, and on the Firm Shares
Closing Date will have, full legal right, power and
authorization, and any approval required by law, to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Stockholder in the manner provided by this Agreement.
(vii) Upon delivery of and payment for the Shares to be
sold by such Selling Stockholder pursuant to this Agreement, the
several Underwriters will receive valid and marketable title to
such Shares free and clear of any lien, claim, security interest
or other encumbrance.
(viii) All information relating to such Selling
Stockholder furnished in writing by such Selling Stockholder
expressly for use in the Registration Statement and Prospectus
is, and on each Closing Date will be, true, correct, and
complete, and does not, and on each Closing Date will not,
contain any untrue statement of a material fact or omit to state
any material fact necessary to make such information not
misleading.
(ix) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(x) The representations and warranties of such Selling
Stockholder in the Custody Agreement are and on each Closing Date
will be, true and correct.
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13
(b) In addition to their representations and warranties set forth
in Section 5(a) hereof, each of _______, _______ and _________ (the
"Fund Stockholders") and each of the officers of the Company who are
also Selling Stockholders (the "Management Stockholders") represents and
warrants to each Underwriter that such Selling Stockholder has reviewed
the Registration Statement and Prospectus and, although such Selling
Stockholder has not independently verified the accuracy or completeness
of all the information contained therein, to the best knowledge of such
Selling Stockholder, (i) the Registration Statement did not, as of the
Effective Date, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein in order to
make the statements made therein not misleading and (ii) the Prospectus
did not, as of the Effective Date and on each Closing Date, contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, misleading.
6. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) Notification that the Registration Statement has become
effective shall have been received by the Representatives and the
Prospectus shall have been timely filed with the Commission in
accordance with Section 7(a) of this Agreement.
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and
no order suspending the effectiveness of the Registration Statement
shall be in effect and no proceedings for such purpose shall be pending
before or threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to the satisfaction of the Commission and the
Representatives.
(c) The representations and warranties of the Company and the
Selling Stockholders contained in this Agreement and in the certificates
delivered pursuant to Section 6(d) shall be true and correct when made
and on and as of each Closing Date as if made on such date and the
Company and the Selling Stockholders shall have performed all covenants
and agreements and satisfied all the conditions contained in this
Agreement required to be performed or satisfied by them at or before
such Closing Date.
(d) The Representatives shall have received on each Closing Date
a certificate, addressed to the Representatives and dated such Closing
Date, of the chief executive or chief operating officer and the chief
financial officer or chief accounting officer of the Company to the
effect that (i) the signatories of such certificate have carefully
examined the Registration Statement, the Prospectus and
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14
this Agreement and that the representations and warranties of the
Company in this Agreement are true and correct on and as of such Closing
Date with the same effect as if made on such Closing Date and the
Company has performed all covenants and agreements and satisfied all
conditions contained in this Agreement required to be performed or
satisfied by it at or prior to such Closing Date, and (ii) no stop order
suspending the effectiveness of the Registration Statement has been
issued and to the best of their knowledge, no proceedings for that
purpose have been instituted or are pending under the Securities Act.
(e) The Representatives shall have received on each Closing Date
a certificate, addressed to the Representatives and dated such Closing
Date, of the Selling Stockholders, to the effect that the Selling
Stockholders have carefully examined the Registration Statement, the
Prospectus and this Agreement and that the representations and
warranties of the Selling Stockholders in this Agreement are true and
correct on and as of such Closing Date with the same effect as if made
on such Closing Date, and the Selling Stockholders have performed all
covenants and agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by it at or prior to
such Closing Date.
(f) The Representatives shall have received on the Effective
Date, at the time this Agreement is executed and on each Closing Date a
signed letter from Deloitte & Touche LLP addressed to the
Representatives and dated, respectively, the Effective Date, the date of
this Agreement and each such Closing Date, in form and substance
reasonably satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Securities Act and the
Rules, that the response to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration
Statement and the Prospectus and reported on by them comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Rules;
(ii) on the basis of a reading of the amounts included in
the Registration Statement and the Prospectus under the headings
"Summary Financial and Operating Data" and "Selected Financial
and Operating Data," carrying out certain procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter, a reading of the minutes of the meetings of the
stockholders and directors of the Company, and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company as to
transactions and events subsequent to the date of the latest
audited financial statements, except as disclosed in the
Registration Statement and the Prospectus, nothing came to their
attention which caused them to believe that:
- 14 -
15
(A) the amounts in "Summary Financial and Operating
Data," and "Selected Financial and Operating Data"
included in the Registration Statement and the Prospectus
do not agree with the corresponding amounts in the audited
and unaudited financial statements from which such amounts
were derived; or
(B) with respect to the Company, there were, at a
specified date not more than five business days prior to
the date of the letter, any increases in the current
liabilities and long-term liabilities of the Company or
any decreases in net income or in working capital or the
stockholders' equity in the Company, as compared with the
amounts shown on the Company's audited balance sheet for
the fiscal year ended ____________ and the ___ months
ended included in the Registration Statement; and
(iii) they have performed certain other procedures as may
be permitted under Generally Acceptable Auditing Standards as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the
Registration Statement and the Prospectus and reasonably
specified by the Representatives agrees with the accounting
records of the Company.
(iv) based upon the procedures set forth in clauses (ii)
and (iii) above and a reading of the amounts included in the
Registration Statement under the headings "Summary Financial and
Operating Data" and "Selected Financial and Operating Data"
included in the Registration Statement and Prospectus and a
reading of the financial statements from which certain of such
data were derived, nothing has come to their attention that gives
them reason to believe that the "Summary Financial and Operating
Data" and "Selected Financial and Operating Data" included in the
Registration Statement and Prospectus do not comply as to the
form in all material respects with the applicable accounting
requirements of the Securities Act and the Rules or that the
information set forth therein is not fairly stated in relation to
the financial statements included in the Registration Statement
or Prospectus from which certain of such data were derived are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Registration
Statement and Prospectus.
References to the Registration Statement and the
Prospectus in this paragraph (f) are to such documents as amended
and supplemented at the date of the letter.
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16
(g) The Representatives shall have received on each Closing Date
from Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, counsel
for the Company, an opinion, addressed to the Representatives and dated
such Closing Date, and stating in effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware. To such counsel's knowledge, the Company has
no subsidiaries and does not control, directly or indirectly, any
corporation, partnership, joint venture, association or other
business organization. The Company is duly qualified and in good
standing as a foreign corporation in each jurisdiction in which
the character or location of its assets or properties (owned,
leased or licensed) or the nature of its businesses makes such
qualification necessary, except for such jurisdictions where the
failure to so qualify would not have a Material Adverse Effect.
(ii) The Company has all requisite corporate power and
authority to own, lease and license its assets and properties and
conduct its business as described in the Registration Statement
and the Prospectus; and the Company has all requisite corporate
power and authority and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits to enter
into, deliver and perform this Agreement and to issue and sell
the Shares other than those required under the Securities Act and
state and foreign Blue Sky laws.
(iii) The Company has authorized and issued capital stock
as set forth in the Registration Statement and the Prospectus;
the certificates evidencing the Shares are in due and proper
legal form and have been duly authorized for issuance by the
Company; all of the outstanding shares of Common Stock of the
Company have been duly and validly authorized and issued and, to
such counsel's knowledge, are fully paid and nonassessable and
none of them was issued in violation of any preemptive or other
similar right. The Shares when issued and sold pursuant to this
Agreement will be duly and validly issued, outstanding, fully
paid and nonassessable and none of them will have been issued in
violation of any preemptive or other similar right. To such
counsel's knowledge, except as disclosed in the Registration
Statement and the Prospectus, there are no preemptive rights or
any restriction upon the voting or transfer of any securities of
the Company pursuant to the Company's Certificate of
Incorporation or by-laws or other governing documents or any
other instrument to which the Company is a party or by which it
may be bound. To such counsel's knowledge, except as disclosed in
the Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the
issuance of, and no commitment, plan or arrangement to issue, any
share of stock of the Company or any security convertible into,
exercisable for, or exchangeable for stock of the Company. The
Common Stock and the Shares conform in all material
- 16 -
17
respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(iv) Each of the Lock-Up Agreements executed by the
Company's stockholders, directors and officers has been duly and
validly delivered by such persons.
(v) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery
and performance of this Agreement and the issuance and sale of
the Shares. This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(vi) Neither the execution, delivery and performance of
this Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation,
the issuance and sale by the Company of the Shares) will give
rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of
any term or provision of, or constitute a default (or any event
which with notice or lapse of time, or both, would constitute a
default) under, or require consent or waiver under, or result in
the execution or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company pursuant to the
terms of any indenture, mortgage, deed trust, note or other
agreement or instrument of which such counsel is aware and to
which the Company is a party or by which it or any of its
properties or businesses is bound, or any franchise, license,
permit, judgment, decree, order, statute, rule or regulation
under the General Corporation Law of the State of Delaware or
under California law of which such counsel is aware or violate
any provision of the charter or by-laws of the Company.
(vii) To the best of such counsel's knowledge, no default
exists, and no event has occurred which with notice or lapse of
time, or both, would constitute a default, in the due performance
and observance of any term, covenant or condition by the Company
of any indenture, mortgage, deed of trust, note or any other
agreement or instrument to which the Company is a party or by
which it or any of its assets or properties or businesses may be
bound or affected, where the consequences of such default would
have a Material Adverse Effect.
(viii) To the best of such counsel's knowledge, the
Company is not in violation of any term or provision of its
charter or by-laws or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation, where the
consequences of such violation would have a Material Adverse
Effect.
(ix) No consent, approval, authorization or order of any
court or governmental agency or regulatory body is required for
the performance
- 17 -
18
of this Agreement by the Company or the consummation of the
transactions contemplated thereby, except such as have been
obtained under the Securities Act and such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the several
Underwriters.
(x) Other than as stated in the Prospectus, to such
counsel's knowledge, there is no litigation or governmental or
other proceeding or investigation, before any court or before or
by any public body or board pending or threatened against, or
involving the assets, properties or businesses of, the Company
which would have a Material Adverse Effect.
(xi) The statements in the Prospectus under the captions
"Description of Capital Stock - Effect of Delaware Antitakeover
Statute," "Shares Eligible for Future Sale," "Management-
Employment Agreements," "Management-Stock Incentive Plan," and
"Certain Transactions," insofar as such statements constitute a
summary of documents referred to therein or matters of law, are
fair summaries in all material respects and accurately present
the information called for with respect to such documents and
matters and all contracts and other documents known to such
counsel which are required to be filed as exhibits to, or
described in, the Registration Statement have been so filed with
the Commission or are fairly described in the Registration
Statement, as the case may be.
(xii) The Registration Statement is effective under the
Securities Act, and no stop order suspending the effectiveness of
the Registration Statement has been issued and, to such counsel's
knowledge, no proceedings for that purpose have been instituted
or are threatened, pending or contemplated. Any required filing
of the Prospectus and any supplement thereto pursuant to Rule
424(b) under the Securities Act has been made in the manner and
within the time period required by such Rule 424(b).
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the State of California, the General Corporation Law of the State of Delaware
and the Federal laws of the United States; provided that such counsel shall
state that in their opinion the Underwriters and they are justified in relying
on such other opinions. Copies of such certificates and other opinions shall be
furnished to the Representatives and counsel for the Underwriters.
In addition, such counsel shall state that although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements
- 18 -
19
contained in the Registration Statement and the Prospectus (except as specified
in the foregoing opinion), on the basis of the foregoing, no facts have come to
the attention of such counsel which lead such counsel to believe that the
Registration Statement at the time it became effective (except with respect to
the financial statements and notes and schedules thereto and other financial
data, as to which such counsel need express no belief) contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus as amended or supplemented (except with respect to the
financial statements, notes and schedules thereto and other financial data, as
to which such counsel need make no statement) on the date thereof contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(h) The Representatives shall have received on the Firm Shares
Closing Date from ________________________, counsel for the Selling
Stockholders, an opinion, addressed to the Representatives and dated
such Closing Date, and stating in effect that:
(i) This Agreement has been duly and validly executed and
delivered by or on behalf of the Selling Stockholders.
(ii) This Agreement, the Custody Agreement, the Power of
Attorney and the Lock-Up Agreement each constitute the legal,
valid and binding obligation of the Selling Stockholders
enforceable against the Selling Stockholders in accordance with
its terms except (A) as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles and (B) to the
extent that rights to indemnity or contribution under this
Agreement may be limited by Federal or state securities laws or
the public policy underlying such laws; and the Selling
Stockholders has full legal right and authority to enter into
this Agreement and to sell, transfer and deliver in the manner
provided in this Agreement, the Shares to be sold by the Selling
Stockholders hereunder.
(iii) The transfer and sale by the Selling Stockholders of
the Shares to be sold by the Selling Stockholders as contemplated
by this Agreement will not conflict with, result in a breach of,
or constitute a default under any agreement or instrument known
to such counsel to which the Selling Stockholders is a party or
by which the Selling Stockholders or any of its properties may be
bound, or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation.
(iv) All of the Selling Stockholders's rights in the
Shares to be sold by the Selling Stockholders pursuant to this
Agreement, have been transferred to the Underwriters who have
severally purchased such Shares pursuant to this Agreement, free
and clear of adverse claims, assuming for
- 19 -
20
purposes of this opinion that the Underwriters purchased the same
in good faith without notice of any adverse claims.
(v) No consent, approval, authorization, license,
certificate, permit or order of any court, governmental or
regulatory agency, authority or body or financial institution is
required in connection with the performance of this Agreement by
the Selling Stockholders or the consummation of the transactions
contemplated hereby, including the delivery and sale of the
Shares to be delivered and sold by the Selling Shareholder,
except such as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the
Shares by the several Underwriters.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of the Selling Stockholders and on the opinions
of other counsel satisfactory to the Representatives as to matters which are
governed by laws other than the laws of the States of California and Delaware or
the Federal laws of the United States; provided that such counsel shall state
that in their opinion the Underwriters and they are justified in relying on such
other opinions. Copies of such certificates and other opinions shall be
furnished to the Representatives and counsel for the Underwriters.
In addition, such counsel shall state that although such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except as specified in the foregoing opinion), on
the basis of the foregoing, no facts have come to the attention of such counsel
which lead such counsel to believe that the Registration Statement at the time
it became effective (except with respect to the financial statements and notes
and schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements, notes and
schedules thereto and other financial data, as to which such counsel need make
no statement) on the date thereof contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(i) All proceedings taken in connection with the sale of the
Firm Shares and the Option Shares as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives,
and their counsel and the Underwriters shall have received from
Pillsbury Madison & Sutro LLP a favorable opinion, addressed to the
Representatives and dated such Closing Date, with respect to the Shares,
the Registration Statement and the Prospectus, and such other related
matters, as the Representatives may reasonably request, and the Company
shall have furnished to Pillsbury Madison & Sutro LLP such documents as
they may reasonably request for the purpose of enabling them to pass
upon such matters.
- 20 -
21
(j) The Representatives shall have received on each Closing Date
a certificate, addressed to the Representatives, and dated such Closing
Date, of an executive officer of the Company, to the effect that the
signatory of such certificate has reviewed and understands the
provisions of Section 517.075 of the Florida Statutes, and represents
that the Company has complied, and at all times will comply, with all
provisions of Section 517.075 and further, that as of such Closing Date,
neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba.
(k) The Representatives shall have received copies of the Lock-up
Agreements executed by each entity or person described in Section 4(o).
(l) The Company and the Selling Stockholders shall have furnished
or caused to be furnished to the Representatives such further
certificates or documents as the Representatives shall have reasonably
requested.
7. Covenants of the Company.
(a) The Company covenants and agrees as follows:
(i) The Company shall prepare the Prospectus in a form
approved by the Representatives and file such Prospectus pursuant
to Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act.
(ii) The Company shall promptly advise the Representatives
in writing (1) when any amendment to the Registration Statement
shall have become effective, (2) of any request by the Commission
for any amendment of the Registration Statement or the Prospectus
or for any additional information, (3) of the prevention or
suspension of the use of any preliminary prospectus or the
Prospectus or of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and
(4) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company shall not file any
amendment of the Registration Statement or supplement to the
Prospectus unless the Company has furnished the Representatives a
copy for its review prior to filing and shall not file any such
proposed amendment or supplement to which the Representatives
reasonably object. The Company shall use its reasonable efforts
to prevent the issuance of any such stop order and, if issued, to
use its reasonable efforts to obtain as soon as possible the
withdrawal thereof.
(iii) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Securities Act and
the Rules, any event
- 21 -
22
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to
amend or supplement the Prospectus to comply with the Securities
Act or the Rules, the Company promptly shall prepare and file
with the Commission, subject to the second sentence of paragraph
(ii) of this Section 7(a), an amendment or supplement which shall
correct such statement or omission or an amendment which shall
effect such compliance.
(iv) The Company shall make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 45 days after the end of the
12-month period beginning at the end of the fiscal quarter of the
Company during which the Effective Date occurs (or 90 days if
such 12-month period coincides with the Company's fiscal year),
an earning statement (which need not be audited) of the Company,
covering such 12-month period, which shall satisfy the provisions
of Section 11(a) of the Securities Act or Rule 158 of the Rules.
(v) The Company shall furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of
the Registration Statement (including all exhibits thereto and
amendments thereof) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and all
amendments thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act or
the Rules, as many copies of any preliminary prospectus and the
Prospectus and any amendments thereof and supplements thereto as
the Representatives may reasonably request.
(vi) The Company shall cooperate with the Representatives
and their counsel in endeavoring to qualify the Shares for offer
and sale in connection with the offering under the laws of such
jurisdictions as the Representatives may designate and shall
maintain such qualifications in effect so long as required for
the distribution of the Shares; provided, however, that the
Company shall not be required in connection therewith, as a
condition thereof, to qualify as a foreign corporation or to
execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business in
any jurisdiction.
(vii) For a period of five years after the date of this
Agreement, the Company shall supply to the Representatives, and
to each other Underwriter who may so request in writing, copies
of such financial statements and other periodic and special
reports as the Company may from time to time distribute generally
to the holders of any class of its capital stock and to furnish
to the Representatives a copy of each annual or other report it
shall be required to file with the Commission.
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23
(viii) Without the prior written consent of CIBC
Xxxxxxxxxxx Corp., for a period of 90 days after the date of this
Agreement, the Company and each of its individual directors and
executive officers shall not issue, sell or register with the
Commission (other than on Form S-8 or on any successor form), or
otherwise dispose of, directly or indirectly, any equity
securities of the Company (or any securities convertible into,
exercisable for or exchangeable for equity securities of the
Company), except for the issuance of the Shares pursuant to the
Registration Statement and the issuance of shares pursuant to the
Company's existing stock option plan or purchase plan as
described in the Registration Statement and the Prospectus. In
the event that during this period, (i) any shares are issued
pursuant to the Company's existing stock option plan or purchase
plan or (ii) any registration is effected on Form S-8 or on any
successor form, the Company shall obtain the written agreement of
such grantee or purchaser or holder of such registered securities
that, for a period of 90 days after the date of this Agreement,
such person will not, without the prior written consent of CIBC
Xxxxxxxxxxx Corp., offer for sale, sell, distribute, grant any
option for the sale of, or otherwise dispose of, directly or
indirectly, or exercise any registration rights with respect to,
any shares of Common Stock (or any securities convertible into,
exercisable for, or exchangeable for any shares of Common Stock)
owned by such person.
(ix) Notwithstanding any agreement between any holder of
the Company's securities and the Company, the Company agrees that
it will not allow any holder of the Company's securities who has
entered into a "market standoff" agreement with the Company to
transfer such securities during the Lock Up Period without CIBC
Xxxxxxxxxxx'x prior written consent. For the purposes of this
Agreement, the "Lock Up Period" shall be as defined in the Lock
Up Agreement between CIBC Xxxxxxxxxxx and certain holders of the
Company's securities dated April __, 1999.
(x) On or before completion of this offering, the Company
shall make all filings required under applicable securities laws
and by the Nasdaq National Market (including any required
registration under the Exchange Act).
(xi) The Company will apply the net proceeds from the
offering of the Shares in the manner set forth under "Use of
Proceeds" in the Prospectus.
(b) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses
relating to: (i) the preparation, printing, filing and distribution of
the Registration Statement including all exhibits thereto, each
preliminary prospectus, the Prospectus, all amendments and supplements
to the Registration Statement and the Prospectus,
- 23 -
24
and the printing, filing and distribution of this Agreement; (ii) the
preparation and delivery of certificates for the Shares to the
Underwriters; (iii) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the various
jurisdictions referred to in Section 7(a)(vi), including the reasonable
fees and disbursements of counsel for the Underwriters in connection
with such registration and qualification and the preparation, printing,
distribution and shipment of preliminary and supplementary Blue Sky
memoranda; (iv) the furnishing (including costs of shipping and mailing)
to the Representatives and to the Underwriters of copies of each
preliminary prospectus, the Prospectus and all amendments or supplements
to the Prospectus, and of the several documents required by this Section
to be so furnished, as may be reasonably requested for use in connection
with the offering and sale of the Shares by the Underwriters or by
dealers to whom Shares may be sold; (v) the filing fees of the NASD in
connection with its review of the terms of the public offering and
reasonable fees and disbursements of counsel for the Underwriters in
connection with such review; (vi) the furnishing (including costs of
shipping and mailing) to the Representatives and to the Underwriters of
copies of all reports and information required by Section 7(a)(vii);
(vii) inclusion of the Shares for quotation on the Nasdaq National
Market; and (viii) all transfer taxes, if any, with respect to the sale
and delivery of the Shares by the Company to the Underwriters. Subject
to the provisions of Section 10, the Underwriters agree to pay, whether
or not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses incident to the
performance of the obligations of the Underwriters under this Agreement
not payable by the Company pursuant to the preceding sentence,
including, without limitation, the fees and disbursements of counsel for
the Underwriters.
8. 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 Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable investigation,
legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus, the Registration Statement or the Prospectus
or any amendment thereof or supplement thereto, or arise out of or are
based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) in whole or in part upon any breach of the
representations and warranties set forth in Section 4 hereof, or (iii)
in whole or in part upon any failure of the Company to perform any of
its obligations hereunder or under law; provided, however, that such
indemnity shall not inure to the benefit
- 24 -
25
of any Underwriter (or any person controlling such Underwriter) on
account of any losses, claims, damages or liabilities arising from the
sale of the Shares to any person by such Underwriter if such untrue
statement or omission or alleged untrue statement or omission was made
in such preliminary prospectus, the Registration Statement or the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with information furnished in writing to the Company by the
Representatives on behalf of any Underwriter specifically for use
therein. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Management Stockholder agrees, severally in proportion
to the total number of shares to be sold by the Management Stockholders
hereunder and not jointly, to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable investigation,
legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus, the Registration Statement or the Prospectus
or any amendment thereof or supplement thereto, or arise out of or are
based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (ii) in whole or in part upon any breach of
the representations and warranties of such Management Stockholder set
forth in Section 5 hereof; provided, however, that such indemnity shall
not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person by such
Underwriter if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with information
furnished in writing to the Company by the Representatives on behalf of
any Underwriter specifically for use therein. Notwithstanding the
foregoing, (i) the Underwriters agree that any claim for indemnity
pursuant to this Section 8(b) shall be first sought to be satisfied by
the Company and shall be only then sought to be satisfied by each
Management Stockholder in accordance with this Section 8(b) if, and to
the extent that, such claim for indemnity has not been satisfied in full
by the Company within 60 days, provided, however, that the Underwriters
shall not be required to effect such initial demand upon the Company and
wait such 60-day period if it would prejudice their right to
indemnification from such Management Stockholder hereunder, and (ii) the
liability of each Management Stockholder pursuant to the provisions of
this Section 8(b) shall be limited to an amount equal to the Initial
Price multiplied by the number of the Shares sold by such Management
- 25 -
26
Stockholder hereunder. This indemnity agreement will be in addition to
any liability which each Management Stockholder may otherwise have.
(c) Each Selling Stockholder who is not a Management Stockholder
agrees, severally and not jointly, to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable investigation,
legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus, the Registration Statement or the Prospectus
or any amendment thereof or supplement thereto, or arise out of or are
based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, and only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with information furnished in writing by or on behalf of such Selling
Stockholder specifically for use therein and (ii) in whole or in part
upon any breach of the representations and warranties of such Selling
Stockholder set forth in Section 5 hereof; provided, however, that such
indemnity shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) on account of any losses, claims,
damages or liabilities arising from the sale of the Shares to any person
by such Underwriter if such untrue statement or omission or alleged
untrue statement or omission was made in such preliminary prospectus,
the Registration Statement or the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with information
furnished in writing to the Company by the Representatives on behalf of
any Underwriter specifically for use therein. Notwithstanding the
foregoing, the liability of each such Selling Stockholder pursuant to
the provisions of this Section 8(c) shall be limited to an amount equal
to the Initial Price multiplied by the number of the Shares sold by such
Selling Stockholder hereunder. This indemnity agreement will be in
addition to any liability which each such Selling Stockholder may
otherwise have.
(d) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholders and
each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, each
director of the Company, and each officer of the Company who signs the
Registration Statement, to the same extent as the foregoing indemnity
from the Company and the Selling Stockholders to each Underwriter, but
only insofar as such losses, claims, damages or liabilities arise out of
or are based upon any untrue statement or omission or alleged untrue
statement or omission which was made in any preliminary prospectus, the
- 26 -
27
Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto, contained in the last paragraph of the cover page,
in the paragraph relating to stabilization on the inside front cover
page of the Prospectus and the statements contained under the caption
"Underwriting" in the Prospectus; provided, however, that the obligation
of each Underwriter to indemnify the Company or the Selling Stockholders
(including any controlling person, director or officer thereof) shall be
limited to the net proceeds received by the Company from such
Underwriter.
(e) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an indemnifying party or
parties under this Section, notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a copy of all
papers served. No indemnification provided for in Section 8(a), 8(b),
8(c) or 8(d) shall be available to any party who shall fail to give
notice as provided in this Section 8(e) if the party to whom notice was
not given was unaware of the proceeding to which such notice would have
related and was prejudiced by the failure to give such notice but the
omission so to notify such indemnifying party of any such action, suit
or proceeding shall not relieve it from any liability that it may have
to any indemnified party for contribution or otherwise than under this
Section. In case any such action, suit or proceeding shall be brought
against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof and the approval by the
indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, except
as provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ
its counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized in
writing by the indemnifying parties, (ii) the indemnified party shall
have reasonably concluded that there may be a conflict of interest
between the indemnifying parties and the indemnified party in the
conduct of the defense of such action (in which case the indemnifying
parties shall not have the right to direct the defense of such action on
behalf of the indemnified party) or (iii) the indemnifying parties shall
not have employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying parties. An indemnifying party shall not be liable for
any settlement of any action, suit, proceeding or claim effected without
its written consent, which consent shall not be unreasonably withheld or
delayed.
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28
9. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in Section 8(a),
8(b), 8(c) or 8(d) is due in accordance with its terms but for any reason is
held to be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a), 8(b), 8(c) or 8(d), then each indemnifying party shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting any contribution received by any person
entitled hereunder to contribution from any person who may be liable for
contribution) to which the indemnified party may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the other from
the offering of the Shares or, if such allocation is not permitted by applicable
law or indemnification is not available as a result of the indemnifying party
not having received notice as provided in Section 8 hereof, in such proportion
as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of the Company and the Selling Stockholders on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Selling Stockholders and the Underwriters
shall be deemed to be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts but before deducting expenses) received
by the Company or the Selling Stockholders, as set forth in the table on the
cover page of the Prospectus, bear to (y) the underwriting discounts received by
the Underwriters, as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company and the Selling Stockholders or the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact related to information
supplied by the Company and the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 9, (i) in no case shall any Underwriter (except as may be provided
in the Agreement Among Underwriters) be liable or responsible for any amount in
excess of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder; (ii) the Company shall be liable and responsible for any
amount in excess of such underwriting discount; and (iii) in no case shall the
Selling Stockholders be liable and responsible for any amount in excess of the
aggregate net proceeds of the sale of Shares received by the Selling
Stockholders; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of the Section 15 of the Securities Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) in the immediately preceding sentence of this Section 9. Any party entitled
to contribution will, promptly after
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29
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
from whom contribution may be sought shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriter's obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
10. Termination. This Agreement may be terminated with respect to the
Shares to be purchased on a Closing Date by the Representatives by notifying the
Company and the Selling Stockholders at any time
(a) in the absolute discretion of the Representatives at or
before any Closing Date: (i) if on or prior to such date, any domestic
or international event or act or occurrence has materially disrupted, or
in the opinion of the Representatives will in the future materially
disrupt, the securities markets; (ii) if there has occurred any new
outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Representatives,
inadvisable to proceed with the offering; (iii) if there shall be such a
material adverse change in general financial, political or economic
conditions or the effect of international conditions on the financial
markets in the United States is such as to make it, in the judgment of
the Representatives, inadvisable or impracticable to market the Shares;
(iv) if trading in the Shares has been suspended by the Commission or
trading generally on the New York Stock Exchange, Inc., on the American
Stock Exchange, Inc. or the Nasdaq National Market has been suspended or
limited, or minimum or maximum ranges for prices for securities shall
have been fixed, or maximum ranges for prices for securities have been
required, by said exchanges or by order of the Commission, the National
Association of Securities Dealers, Inc., or any other governmental or
regulatory authority; or (v) if a banking moratorium has been declared
by any state or Federal authority; or (vi) if, in the judgment of the
Representatives, there has occurred a Material Adverse Effect, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 6 shall not have been fulfilled when and as
required by this Agreement.
If this Agreement is terminated pursuant to any of its provisions,
neither the Company nor the Selling Stockholders shall be under any liability to
any Underwriter, and no Underwriter shall be under any liability to the Company
or Selling Stockholders, except that (y) if this Agreement is terminated by the
Representatives or the Underwriters because of any failure, refusal or inability
on the part of the Company or the Selling Stockholders to comply with the terms
or to fulfill any of the conditions of this Agreement, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) incurred by them in
connection with the proposed purchase and sale of the Shares or in contemplation
of performing their obligations hereunder and (z) no Underwriter who shall have
failed or refused to purchase
- 29 -
30
the Shares agreed to be purchased by it under this Agreement, without some
reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company,
the Selling Stockholders or to the other Underwriters for damages occasioned by
its failure or refusal.
11. Substitution of Underwriters. If one or more of the Underwriters
shall fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 10) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representatives
may deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares
that all the Underwriters are obligated to purchase on such Closing
Date, then each of the nondefaulting Underwriters shall be obligated to
purchase such Shares on the terms herein set forth in proportion to
their respective obligations hereunder; provided, that in no event shall
the maximum number of Shares that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 11 by more
than one-ninth of such number of Shares without the written consent of
such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date,
then the Company shall be entitled to one additional business day within
which it may, but is not obligated to, find one or more substitute
underwriters reasonably satisfactory to the Representatives to purchase
such Shares upon the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company or the Selling
Stockholders and without liability on the part of the Company, except in both
cases as provided in Sections 7(b), 8, 9 and 10. The provisions of this Section
shall not in any way affect the liability of any defaulting Underwriter to the
Company or the nondefaulting Underwriters arising out of such
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31
default. A substitute underwriter hereunder shall become an Underwriter for all
purposes of this Agreement.
12. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers, of
the Selling Stockholders and of the Underwriters set forth in or made pursuant
to this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or the
Selling Stockholders or any of the officers, directors or controlling persons
referred to in Sections 8 and 9 hereof, and shall survive delivery of and
payment for the Shares. The provisions of Sections 7(b), 8, 9 and 10 shall
survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the Underwriters,
the Company and the Selling Stockholders and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of persons
controlling any of the Underwriters, or the Company, and directors and officers
of the Company, and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser of Shares from any
Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed
or delivered or by telephone or telegraph if subsequently confirmed in writing,
(a) if to the Representatives, c/o CIBC Xxxxxxxxxxx Corp., CIBC Xxxxxxxxxxx
Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: __________,
with a copy to __________ and (b) if to the Company, to its agent for service as
such agent's address appears on the cover page of the Registration Statement
with a copy to __________ and (c) if to the Selling Stockholders to __________
with a copy to __________.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflict of laws.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
ISSUER
By _____________________________________
Title: _________________________________
- 00 -
00
XXXXXXX XXXXXXXXXXXX
Xx _____________________________________
Title: _________________________________
Confirmed:
CIBC XXXXXXXXXXX CORP.
XXXXXX BROTHERS INC.
PAINEWEBBER INCORPORATED
XXXXX XXXXX XXXXXX & COMPANY LLC
Acting severally on behalf of itself and as representative of the several
Underwriters named in Schedule I annexed hereto.
By CIBC XXXXXXXXXXX CORP.
By __________________________________
Title: ______________________________
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33
SCHEDULE I
Number of Firm Shares
Name to be Purchased
---- ---------------
CIBC Openheimer Corp.
Xxxxxx Brothers Inc.
PaineWebber Incorporated
Xxxxx Xxxxx Xxxxxx & Company LLC
------------------------
Total
========================
