EXHIBIT 1.1
XXXX, XXXXXX & ASSOCIATES, INC.
[__________] Shares of Common Stock/*/
FORM OF UNDERWRITING AGREEMENT
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_______________, 2000
XXXXXX X. XXXXX & CO. INCORPORATED
[Name(s) of Other Representatives]
As Representatives of the Several Underwriters
Identified in Schedule II Annexed Hereto
c/o Xxxxxx X. Xxxxx & Co. Incorporated
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. Introductory. Xxxx, Xxxxxx & Associates, Inc., a Delaware
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corporation (the "Company"), and the several shareholders of the Company
identified in Schedule I annexed hereto (the "Selling Shareholders") propose to
sell [_________] shares (the "Firm Shares") of common stock, $.001 par value per
share (the "Common Stock"), to the several underwriters identified in Schedule
II annexed hereto (the "Underwriters"), who are acting severally and not
jointly. In addition, the Company and the Selling Shareholders have agreed to
grant to the Underwriters an option to purchase up to [_______] additional
shares of Common Stock (the "Optional Shares") as provided in Section 6 hereof.
The Firm Shares and, to the extent such option is exercised, the Optional Shares
are hereinafter collectively referred to as the "Shares."
You, as representatives of the Underwriters (the "Representatives"),
have advised the Company and the Selling Shareholders that the Underwriters
propose to make a public offering of their respective portions of the Shares as
soon hereafter as in your judgment is advisable and that the public offering
price of the Shares initially will be [$_____] per share.
The Company and the Selling Shareholders hereby confirm their
respective agreements with the Underwriters and each other as follows:
SECTION 2. Representations and Warranties of the Company. The
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Company represents and warrants to, and agrees with, the several Underwriters,
and shall be deemed to represent and warrant to the several Underwriters on each
Closing Date (as hereinafter defined), that:
(a) Each of the Company and the subsidiaries of the Company that are
listed on Exhibit 21.1 of the Company's most recent Annual Report on Form
10-K incorporated by
_____________
/*/ Plus an option to acquire up to [_________] additional shares of Common
Stock from the Company and the Selling Shareholders to cover over-
allotments.
reference into the Registration Statement (as hereinafter defined)
(individually, a "Subsidiary" and collectively, the "Subsidiaries") has
been duly incorporated and is validly existing as a corporation and in good
standing under the laws of its jurisdiction of incorporation, with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as presently conducted and described in the
Prospectus (as hereinafter defined) and the Registration Statement; each of
the Company and the Subsidiaries is duly registered and qualified to do
business as a foreign corporation under the laws of, and is in good
standing as such in, each jurisdiction in which such registration or
qualification is required, except where the failure to so register or
qualify would not have a material adverse effect on the condition
(financial or other), business, property, net worth, results of operations
or prospects of the Company and the Subsidiaries, taken as a whole
("Material Adverse Effect"); and no proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification. Complete and
correct copies of the certificate of incorporation and by-laws, as amended
or restated ("Certificate of Incorporation" and "By-laws," respectively),
of the Company and each of the Subsidiaries as in effect on the date hereof
have been delivered to the Representatives, and no changes thereto will be
made on or subsequent to the date hereof and prior to each Closing Date.
(b) The shares of Common Stock issued and outstanding immediately
prior to the issuance and sale of the Shares as set forth in the Prospectus
have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus and the Registration Statement. There are no preemptive,
preferential or, except as described in the Prospectus, other rights to
subscribe for or purchase any shares of Common Stock (including the
Shares), and no shares of Common Stock have been issued in violation of
such rights. The Shares to be issued and sold to the Underwriters have been
duly authorized and, when issued, delivered and paid for pursuant to this
Agreement, will be validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus and the
Registration Statement. The delivery of certificates for the Shares to be
issued and sold hereunder and payment therefor pursuant to the terms of
this Agreement will pass valid title to such Shares to the Underwriters,
free and clear of any lien, claim, encumbrance or defect in title. Except
as described in the Prospectus, there are no outstanding options, warrants
or other rights of any description, contractual or otherwise, entitling any
person to be issued any class of security by the Company or any Subsidiary,
and there are no holders of Common Stock or other securities of the Company
or any Subsidiary, or of securities that are convertible or exchangeable
into Common Stock or other securities of the Company or any Subsidiary,
that have rights to the registration of such Common Stock or securities
under the Securities Act of 1933, as amended, and the regulations
thereunder (together, the "Act") or the securities laws or regulations of
any of the states (the "Blue Sky Laws").
(c) Except for the Subsidiaries, and as otherwise set forth in the
Prospectus, the Company has no subsidiaries and does not own any equity
interest of five percent (5%) or more in or control, directly or
indirectly, any other corporation, limited liability company, partnership,
joint venture, association, trust or other business organization. Except
for director qualifying shares in the case of foreign Subsidiaries, the
Company owns directly all of the issued and outstanding capital stock of
each Subsidiary, free and clear of any and all liens, claims, encumbrances
or security interests. The outstanding capital stock of each Subsidiary
has been duly authorized and validly issued and is fully paid and
nonassessable. There are no
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outstanding options, warrants or other rights of any description,
contractual or otherwise, entitling any person to subscribe for or purchase
any shares of capital stock of any Subsidiary.
(d) The Company has full corporate power and authority to enter into
and perform this Agreement, and the execution and delivery by the Company
of this Agreement and the performance by the Company of its obligations
hereunder and the consummation of the transactions described herein, have
been duly authorized with respect to the Company by all necessary corporate
action and will not: (i) violate any provisions of the Certificate of
Incorporation or By-laws of the Company or any Subsidiary; (ii) violate any
provisions of, or result in the breach, modification or termination of, or
constitute a default under, any provision of any agreement, lease,
franchise, license, indenture, permit, mortgage, deed of trust, evidence of
indebtedness or other instrument to which the Company or any Subsidiary is
a party or by which the Company or any Subsidiary, or any property owned or
leased by the Company or any Subsidiary, may be bound or affected; (iii)
violate any statute, ordinance, rule or regulation applicable to the
Company or any Subsidiary, or order or decree of any court, regulatory or
governmental body, arbitrator, administrative agency or instrumentality of
the United States or other country or jurisdiction having jurisdiction over
the Company or any Subsidiary; or (iv) result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary. No consent, approval, authorization or other
order of any court, regulatory or governmental body, arbitrator,
administrative agency or instrumentality of the United States or other
country or jurisdiction is required for the execution and delivery of this
Agreement by the Company, the performance of its obligations hereunder or
the consummation of the transactions contemplated hereby, except for
compliance with the Act, the Securities Exchange Act of 1934, as amended,
and the regulations thereunder (together, the "Exchange Act"), the Blue Sky
Laws applicable to the public offering of the Shares by the several
Underwriters and the clearance of such offering and the underwriting
arrangements evidenced hereby with the National Association of Securities
Dealers, Inc. (the "NASD"). This Agreement has been duly executed and
delivered by and on behalf of the Company and is a valid and binding
agreement of the Company enforceable against the Company in accordance with
its terms.
(e) A registration statement on Form S-3 (Reg. No. 333-______) with
respect to the Shares, including a preliminary form of prospectus (the
"Initial Registration Statement"), has been prepared by the Company in
conformity with the requirements of the Act and has been filed with the
Securities and Exchange Commission (the "Commission"). The conditions for
use of Form S-3, set forth in the General Instructions thereto, have been
satisfied. If an additional registration statement relating to the Shares
(the "Additional Registration Statement") has been or will be filed with
the Commission pursuant to Rule 462(b) under the Act ("Rule 462(b)"), such
Additional Registration Statement became or will become effective upon
filing pursuant to Rule 462(b). The Initial Registration Statement,
together with any Additional Registration Statement, as finally amended and
revised at the time such registration statements, were or are declared
effective by the Commission (including the information contained in the
form of final prospectus, if any, filed with the Commission pursuant to
Rule 424(b) and Rule 430A under the Act and deemed to be part of the
registration statements if the registration statements have been declared
effective pursuant to Rule 430A(b)) and as thereafter amended by post-
effective amendment, if any, is herein referred to as the "Registration
Statement." The related final prospectus in the form first filed with the
Commission pursuant to Rule 424(b) or, if no such filing is required, as
included in the Registration Statement, or any supplement thereto, is
herein referred to as the "Prospectus." The prospectus subject to
completion in the
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form included in the Registration Statement at the time of the initial
filing of the Registration Statement with the Commission, and each such
prospectus as amended from time to time until the date of the Prospectus,
is referred to herein as the "Preliminary Prospectus." Reference made
herein to each Preliminary Prospectus or the Prospectus, as amended or
supplemented, shall include all documents and information incorporated by
reference therein and shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus, as the
case may be, and so incorporated by reference, under the Exchange Act. The
Company has prepared and filed such amendments to the Registration
Statement since its initial filing with the Commission, if any, as may have
been required to the date hereof, and will file such additional amendments
thereto as may hereafter be required. There have been delivered to the
Representatives two signed copies of the Registration Statement and each
amendment thereto, if any, including any document filed under the Exchange
Act and deemed to be incorporated by reference into the Registration
Statement, together with two copies of each exhibit filed therewith or
incorporated by reference therein, and such number of conformed copies for
each of the Underwriters of the Registration Statement and each amendment
thereto, if any (but without exhibits), and of each Preliminary Prospectus
and of the Prospectus as the Representatives have requested.
(f) Neither the Commission nor any state securities commission has
issued any order preventing or suspending the use of any Preliminary
Prospectus, nor, to the knowledge of the Company, have any proceedings for
that purpose been initiated or threatened, and each Preliminary Prospectus
filed with the Commission as part of the Registration Statement as
originally filed or as part of any amendment or supplement thereto complied
when so filed with the requirements of the Act and, as of its date, did not
include any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. As of the effective date of the Registration
Statement, and at all times subsequent thereto up to each Closing Date, the
Registration Statement and the Prospectus contained or will contain all
statements that are required to be stated therein in accordance with the
Act and conformed or will conform in all respects to the requirements of
the Act, and neither the Registration Statement nor the Prospectus included
or will include any untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Neither the Company, nor any
person that controls, is controlled by (including the Subsidiaries) or is
under common control with the Company, has distributed or will distribute
prior to each Closing Date any offering material in connection with the
offering and sale of the Shares other than a Preliminary Prospectus, the
Prospectus, the Registration Statement or other materials permitted by the
Act and provided to the Representatives.
(g) The documents that are incorporated by reference in each
Preliminary Prospectus, the Prospectus or the Registration Statement or
from which information is so incorporated by reference, when they became
effective or were filed with the Commission, as the case may be, complied
with the requirements of the Act or the Exchange Act, as applicable, and
any document so filed and incorporated by reference subsequent to the
effective date of the Registration Statement shall, when it is filed with
the Commission, comply with the requirements of the Act and the Exchange
Act, as applicable, and when read together with the other information
included in such Preliminary Prospectus, the Prospectus or the Registration
Statement, as the case may be, do not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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(h) Deloitte & Touche LLP, which has expressed its opinion with
respect to the financial statements and schedules filed with the Commission
or incorporated by reference and included as a part of each Preliminary
Prospectus, the Prospectus or the Registration Statement are independent
accountants as required by the Act.
(i) The consolidated financial statements and the related notes
thereto included or incorporated by reference in each Preliminary
Prospectus, the Prospectus and the Registration Statement present fairly
the financial position, results of operations and cash flows of the Company
as of their respective dates or for the respective periods covered thereby,
all in conformity with generally accepted accounting principles
consistently applied throughout the periods involved. The financial
statement schedules, if any, included in the Registration Statement present
fairly the information required to be stated therein on a basis consistent
with the consolidated financial statements of the Company contained
therein. The Company had an outstanding capitalization as set forth in the
Registration Statement and the Prospectus as of the date indicated therein,
and there has been no material change thereto since such date except as
disclosed in the Prospectus. The financial and statistical information and
data relating to the Company in each Preliminary Prospectus, the Prospectus
and the Registration Statement are accurately presented and prepared on a
basis consistent with the audited consolidated financial statements and
books and records of the Company. The consolidated financial statements and
schedules and the related notes thereto included or incorporated by
reference in each Preliminary Prospectus, the Prospectus or the
Registration Statement are the only such financial statements and schedules
required under the Act to be set forth therein.
(j) Neither the Company nor any Subsidiary is, nor with the giving of
notice or passage of time or both, would be, in violation or in breach of:
(i) its respective Certificate of Incorporation or By-laws; (ii) any
statute, ordinance, order, rule or regulation applicable to the Company or
such Subsidiary; (iii) any order or decree of any court, regulatory body,
arbitrator, administrative agency or other instrumentality of the United
States or other country or jurisdiction having jurisdiction over the
Company or such Subsidiary; or (iv) any provision of any material
agreement, lease, franchise, license, indenture, permit, mortgage, deed of
trust, evidence of indebtedness or other instrument to which the Company or
such Subsidiary is a party or by which any property owned or leased by the
Company or such Subsidiary is bound or affected. Neither the Company nor
any Subsidiary has received notice of any violation of any applicable
statute, ordinance, order, rule or regulation applicable to the Company or
any Subsidiary which could reasonably be expected to have a Material
Adverse Effect. The Company and each Subsidiary have obtained and hold,
and are in compliance with, all permits, certificates, licenses, approvals,
registrations, franchises, consents and authorizations of governmental or
regulatory authorities required under all laws, rules and regulations in
connection with their businesses (hereinafter "permit" or "permits"), and
all of such permits are in full force and effect; and the Company and each
Subsidiary have fulfilled and performed all of their respective obligations
with respect to each such permit and no event has occurred which would
result in, or after notice or lapse of time would result in, revocation or
termination of any such permit or result in any other impairment of the
rights of the holder of such permit which could reasonably be expected to
have a Material Adverse Effect. Neither the Company nor any Subsidiary is
or has been (by virtue of any action, omission to act, contract to which it
is a party or other occurrence) in violation of any applicable foreign,
federal, state, municipal or local statutes, laws, ordinances, rules,
regulations or orders (including those relating to environmental
protection, occupational safety and health and equal
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employment practices) heretofore or currently in effect which could
reasonably be expected to have a Material Adverse Effect.
(k) There are no legal or governmental proceedings or investigations
pending or, to the knowledge of the Company or the Selling Shareholders,
threatened to which the Company or any Subsidiary is or may be a party or
to which any property owned or leased by the Company or any Subsidiary is
or may be subject, including, without limitation, any such proceedings that
are related to environmental or employment discrimination matters, which
are required to be described in the Registration Statement or the
Prospectus which are not so described, or which question the validity of
this Agreement or any action taken or to be taken pursuant hereto. Except
as described in the Registration Statement or the Prospectus, neither the
Company nor any Subsidiary: (i) is in violation of any statute, ordinance,
rule or regulation, or any decision, order or decree of any court,
regulatory body, arbitrator, administrative agency or other instrumentality
of the United States or other country or jurisdiction having jurisdiction
over the Company or such Subsidiary relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environmental or human exposure to hazardous or toxic
substances (collectively, "environmental laws"); (ii) owns or operates any
real property contaminated with any substance that is subject to any
environmental laws; (iii) is liable for any off-site disposal or
contamination pursuant to any environmental laws; or (iv) is subject to any
claim relating to any environmental laws, which violation, contamination,
liability or claim could have a Material Adverse Effect.
(l) There is no transaction, relationship, obligation, agreement or
other document required to be described in the Registration Statement or
the Prospectus or to be filed or deemed to be filed as an exhibit to the
Registration Statement by the Act, which has not been described or filed as
required. All such contracts or agreements to which the Company or any
Subsidiary is a party have been duly authorized, executed and delivered by
the Company or such Subsidiary, constitute valid and binding agreements of
the Company or such Subsidiary, and are enforceable by and against the
Company or such Subsidiary, in accordance with the respective terms
thereof.
(m) The Company or a Subsidiary has good and valid title to all
property and assets reflected as owned by the Company or such Subsidiary in
the Company's consolidated financial statements included or incorporated by
reference in the Registration Statement (or elsewhere in the Registration
Statement or the Prospectus), free and clear of all liens, claims,
mortgages, security interests or other encumbrance of any kind or nature
whatsoever except those, if any, reflected in such financial statements (or
elsewhere in the Registration Statement or the Prospectus). All property
(real and personal) held or used by the Company or a Subsidiary under
leases, licenses, franchises or other agreements is held by the Company or
such Subsidiary under valid, subsisting, binding and enforceable leases,
franchises, licenses or other agreements.
(n) Neither the Company nor any person that controls, is controlled by
(including the Subsidiaries) or is under common control with the Company
has taken or will take, directly or indirectly, any action designed to
cause or result in, or which constituted, or which could cause or result
in, stabilization or manipulation, under the Exchange Act or otherwise, of
the price of any security of the Company to facilitate the sale or resale
of the Common Stock.
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(o) Except as described in the Registration Statement or the
Prospectus, since the respective dates as of which information is given in
the Registration Statement or the Prospectus and prior to each Closing
Date: (i) neither the Company nor any Subsidiary has or will have incurred
any liability or obligation, direct or contingent, or entered into any
transaction, that is material to the Company, except as in the ordinary
course of business; (ii) the Company has not and will not have paid or
declared any dividend or other distribution with respect to its capital
stock and neither the Company nor any Subsidiary is or will be delinquent
in the payment of principal or interest on any outstanding debt obligation;
and (iii) there has not been and will not have been any change in the
capital stock, any material change in the indebtedness of the Company or
any Subsidiary, or any change or development involving or which could be
expected to involve, a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business.
(p) Neither the Company nor any person that controls, is controlled by
(including the Subsidiaries) or is under common control with the Company
has, directly or indirectly: (i) made any unlawful contribution to any
candidate for political office, or failed to disclose fully any
contribution in violation of law; or (ii) made any payment to any federal,
state or foreign governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments required or
permitted by the laws of the United States or any jurisdiction thereof or
applicable foreign jurisdictions.
(q) The Company or a Subsidiary owns or possesses adequate rights to
use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights and
licenses presently used in or necessary for the conduct of its business or
ownership of its properties, and neither the Company nor any Subsidiary has
violated or infringed upon the rights of others, or received any notice of
conflict with the asserted rights of others, in respect thereof.
(r) The Company or a Subsidiary has in place and effective such
policies of insurance, with limits of liability in such amounts, as are
normal and prudent in the ordinary course of the business of the Company
and its Subsidiaries.
(s) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company and the Selling
Shareholders, is imminent, and neither the Company nor any Subsidiary is a
party to any collective bargaining agreement and, to the knowledge of the
Company and the Selling Shareholders, no union organizational attempts have
occurred or are pending. There has been no change in the relationship of
the Company or any Subsidiary with any of its principal suppliers,
manufacturers, contractors or customers resulting in or that could result
in a Material Adverse Effect.
(t) Neither the Company nor any Subsidiary is an "investment company",
an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company
Act of 1940, as amended.
(u) All federal, state and local tax returns required to be filed by
or on behalf of the Company or any Subsidiary have been filed (or are the
subject of valid extension) with the appropriate federal, state and local
authorities, and all such tax returns, as filed, are accurate in all
material respects; all federal, state and local taxes (including estimated
tax payments) required to be shown on all such tax returns or claimed to be
due from or with respect to the
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business of the Company or such Subsidiary have been paid or reflected as a
liability on the financial statements of the Company or such Subsidiary for
appropriate periods; all deficiencies asserted as a result of any federal,
state or local tax audits have been paid or finally settled, and no issue
has been raised in any such audit which, by application of the same or
similar principles, reasonably could be expected to result in a proposed
deficiency for any other period not so audited; no state of facts exist or
has existed which would constitute grounds for the assessment of any tax
liability with respect to the periods which have not been audited by
appropriate federal, state or local authorities; there are no outstanding
agreements or waivers extending the statutory period of limitation
applicable to any federal, state or local tax return of any period; and
neither the Company nor any Subsidiary has ever been a member of an
affiliated group of corporations filing consolidated federal income tax
returns, other than a group of which the Company is and has been the common
parent.
(v) Except for the employee benefits plans listed on Schedule III
(collectively, the "Plans"), neither the Company nor any Subsidiary is a
participating employer or plan sponsor with respect to any employee pension
benefit plan as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or any employee welfare benefit
plan as defined in Section 3(1) of ERISA, including, without limitation,
any multiemployer welfare or pension plan. With respect to the Plans, the
Company is in substantial compliance with all applicable regulations,
including ERISA and the Code. With respect to each defined benefit
retirement plan, such plan does not have benefit liabilities (as defined in
Section 4001(a)(16) of ERISA) exceeding the assets of the plan. The Company
or the administrator of each of the Plans, as the case may be, has timely
filed the reports required to be filed by ERISA and the Code in connection
with the maintenance of the Plans, and no facts, including, without
limitation, any "reportable event" as defined by ERISA and the regulations
thereunder, exist in connection with the Plans which, under applicable law,
would constitute grounds for the termination of any of the Plans by the
Pension Benefit Guaranty Corporation or for the appointment by the
appropriate United States District Court of a trustee to administer any of
the Plans.
(w) The Company and each Subsidiary maintain a system of internal
accounting controls sufficient to provide reasonable assurances that: (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of consolidated financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorizations; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(x) None of the Company, any Subsidiary, any officer or director of
the Company or any Subsidiary is: (i) an officer, director or partner of
any brokerage firm, broker or dealer that is a member of the NASD ("NASD
Member"); or (ii) directly or indirectly, a "person associated with" an
NASD Member or an "affiliate" of an NASD Member, as such terms are used in
the NASD Rules or By-Laws. In addition, neither the Company nor any
Subsidiary has issued or transferred any Common Stock, warrants, options or
other securities, or any other items of value, to any of the Underwriters
or any "related person" of any Underwriter, as such term is used in the
NASD Rules, except as provided in this Agreement.
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(y) The Common Stock has been registered pursuant to Section 12(g) of
the Exchange Act. The Common Stock has been approved for designation upon
notice of issuance as a Nasdaq National Market security on The Nasdaq Stock
Market ("Nasdaq").
(z) Neither the Company, any Subsidiary nor any affiliate of the
Company or such Subsidiary does business with the government of Cuba or
with any person or affiliate located in Cuba within the meaning of Section
517.075 of the Florida Statutes, and the Company agrees to comply with such
Section if, prior to the completion of the distribution of the Shares, the
Company, any Subsidiary or any affiliate of the Company or such Subsidiary
commences doing such business.
(aa) All offers and sales of the securities of the Company and each
Subsidiary prior to the date hereof were made in compliance with the Act
and all other applicable state and federal laws or regulations.
(bb) The Company has obtained for the benefit of the Underwriters the
agreement, enforceable by Xxxxxx X. Xxxxx & Co. Incorporated ("Baird"), of
each of the officers and directors of the Company, that for a period of 90
days after the date of the Prospectus, such persons will not, without the
prior written consent of Baird, directly or indirectly, offer, sell,
transfer, or pledge, contract to sell, transfer or pledge, or cause or in
any way permit to be sold, transferred, pledged, or otherwise disposed of,
any: (i) shares of Common Stock; (ii) rights to purchase shares of Common
Stock (including, without limitation, shares of Common Stock that may be
deemed to be beneficially owned by any such shareholder in accordance with
the applicable regulations of the Commission and shares of Common Stock
that may be issued upon the exercise of a stock option, warrant or other
convertible security); or (iii) securities that are convertible or
exchangeable into shares of Common Stock.
(cc) A copy of the Durable Power of Attorney and Custody Agreement
executed by each Selling Shareholder and a copy of each Selling
Shareholder's Selling Shareholder's Questionnaire has been furnished to
counsel for the Underwriters prior to the date hereof, along with such
other information as such counsel may reasonably request in connection with
their review thereof.
A certificate signed by any officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company and the Selling Shareholders to the
Underwriters as to the matters covered thereby. A certificate delivered by the
Company to its counsel for purposes of enabling such counsel to render the
opinion referred to in section 10(d) will also be furnished to the
Representatives and counsel for the Underwriters and shall be deemed to be
additional representations and warranties to the Underwriters by the Company as
to the matters covered thereby.
SECTION 3. Representations and Warranties of the Selling
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Shareholders. Each Selling Shareholder, severally and not jointly, represents
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and warrants to and agrees with the several Underwriters and the Company, and
shall be deemed to represent and warrant to the several Underwriters and the
Company on each Closing Date, that:
(a) Such Selling Shareholder has duly executed a durable power of
attorney and custody agreement ("Durable Power of Attorney and Custody
Agreement") naming Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx, or either of them,
as such Selling Shareholder's attorney(s)-in-fact
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("Attorneys-in-Fact") for the purpose of entering into and carrying out
this Agreement and naming U.S. Stock Transfer Corporation as custodian
("Custodian") of the Shares of such Selling Shareholder for the purpose of
selling such Shares to the Underwriters on each Closing Date and receiving
payment therefor.
(b) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Shareholder of this Agreement
and the Durable Power of Attorney and Custody Agreement, and for the sale
and delivery of the Shares to be sold by such Selling Shareholder
hereunder, as set forth on Schedule I annexed hereto, have been obtained.
Such Selling Shareholder either (i) has, and at the time of delivery
thereof hereunder such Selling Shareholder will have, good and valid title
to the Shares proposed to be sold by such Selling Shareholder hereunder,
free and clear of all voting trust arrangements, liens, encumbrances,
security interests, equities, claims and community or marital property
rights (collectively, "Encumbrances"), other than any created by the
Durable Power of Attorney and Custody Agreement or this Agreement for the
benefit of the Underwriters, (ii) has delivered to the Company an
irrevocable conditional notice of exercise (a "Notice of Exercise")
relating to the exercise of one or more options to purchase shares of
Common Stock equal to or greater than the number of Shares proposed to be
sold by such Selling Shareholder hereunder, or (iii) has delivered a Notice
of Exercise relating to such number of shares of Common Stock that,
together with the Shares of Common Stock to which such Selling Shareholder
has good and valid title, free and clear of all Encumbrances, other than
any created by the Durable Power of Attorney and Custody Agreement or this
Agreement for the benefit of the Underwriters, is equal to or greater than
the number of Shares proposed to be sold by such Selling Shareholder
hereunder. Such Selling Shareholder has full right, power and authority to
enter into this Agreement and the Durable Power of Attorney and Custody
Agreement and to sell, assign, transfer and deliver the Shares to be sold
by such Selling Shareholder hereunder, free and clear of all voting trust
arrangements, liens, encumbrances, security interests, equities, claims and
community or marital property rights, other than any created by the Durable
Power of Attorney and Custody Agreement or this Agreement for the benefit
of the Underwriters. Upon delivery of and payment for such Shares
hereunder, the Underwriters will acquire good and valid title thereto, free
and clear of all voting trust arrangements, liens, encumbrances, security
interests, equities, claims and community or marital property rights.
(c) Such Selling Shareholder has not distributed and will not
distribute any Preliminary Prospectus, the Prospectus or any other material
in connection with the offering and sale of the Shares. Such Selling
Shareholder has not taken and will not take, directly or indirectly, any
action designed to or which could cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Common
Stock.
(d) The execution, delivery and performance by such Selling
Shareholder of this Agreement and the Durable Power of Attorney and Custody
Agreement will not, if applicable, result in the violation of any
provisions of the Certificate of Incorporation, By-laws or other governing
documents of such Selling Shareholder, or constitute a breach, or be in
contravention, of any provision of any agreement, franchise, license,
indenture, mortgage, deed of trust or other instrument to which such
Selling Shareholder is a party or by which such Selling Shareholder or such
Selling Shareholder's property may be bound or affected, or any statute,
rule or regulation applicable to such Selling Shareholder, or violate any
order or decree of any court, regulatory body, administrative agency or
other governmental body having
-10-
jurisdiction over such Selling Shareholder or any of such Selling
Shareholder's property. No consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of, and performance under,
this Agreement by such Selling Shareholder or the consummation by such
Selling Shareholder of the transactions contemplated by this Agreement,
except for compliance with the Act, the Exchange Act, the Blue Sky Laws
applicable to the public offering of the Shares by the Underwriters and the
clearance of such offering with the NASD. Such Selling Shareholder hereby
represents and warrants that each Attorney-in-Fact has been duly appointed
as attorney-in-fact by such Selling Shareholder for the purpose of entering
into and carrying out this Agreement, and the Durable Power of Attorney and
Custody Agreement has been duly executed and delivered by or on behalf of
such Selling Shareholder to the Representatives.
(e) This Agreement and the Durable Power of Attorney and Custody
Agreement are each valid and binding agreements of such Selling Shareholder
enforceable in accordance with their respective terms.
(f) Except with respect to any Shares subject to issuance upon the
exercise of options pursuant to a Notice of Exercise, such Selling
Shareholder has deposited in custody, under the Durable Power of Attorney
and Custody Agreement, certificates in negotiable form for the Shares to be
sold hereunder by such Selling Shareholder as set forth opposite such
Selling Shareholder's name on Schedule I annexed hereto (including the
maximum number of Optional Shares set forth on Schedule I) for the purpose
of further delivery pursuant to this Agreement. Such Selling Shareholder
agrees that any Shares of such Selling Shareholder on deposit with the
Custodian are subject to the interests of the Company, the Underwriters and
the other Selling Shareholders, that the arrangements made for such
custody, the election to exercise an option pursuant to any Notice of
Exercise, and the appointment of the Attorneys-in-Fact pursuant to the
Durable Power of Attorney and Custody Agreement, are irrevocable to the
extent provided therein, and that the obligations of such Selling
Shareholder hereunder and under the Durable Power of Attorney and Custody
Agreement shall not be terminated, except as provided in this Agreement and
the Durable Power of Attorney and Custody Agreement, by any act of such
Selling Shareholder, by operation of law, whether in the case of an
individual Selling Shareholder, by the death or incapacity of such Selling
Shareholder or, in the case of a trust or estate, by the death of the
trustee or trustees or the executor or executors or the termination of such
trust or estate, or, in the case of a partnership or corporation, by the
dissolution, winding up or other event affecting the legal life of such
entity, or by the occurrence of any other event. If any individual Selling
Shareholder, trustee or executor should die or become incapacitated, or any
such trust, estate, partnership or corporation should be terminated, or if
any other event should occur before the delivery of the Shares hereunder,
the certificates for Shares then on deposit with the Custodian shall, to
the extent such Shares are purchased by the Underwriters, be delivered by
the Custodian in accordance with the terms and conditions of this Agreement
and the Durable Power of Attorney and Custody Agreement as if such death,
incapacity, termination or other event had not occurred, regardless of
whether or not the Custodian shall have received notice thereof. Such
Selling Shareholder represents that each Attorney-in-Fact has been
authorized by such Selling Shareholder to execute and deliver this
Agreement and the Custodian has been authorized to receive and acknowledge
receipt of the proceeds of sale of the Shares sold by such Selling
Shareholder against delivery thereof and otherwise to act on behalf of such
Selling Shareholder.
-11-
(g) Insofar as it relates to such Selling Shareholder, each
Preliminary Prospectus, as of its date, has conformed in all material
respects with the requirements of the Act and, as of its date, has not
included any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein not misleading; and
on the effective date of the Registration Statement and at all times
subsequent thereto up to each Closing Date, (i) the Registration Statement
and the Prospectus, as they relate to such Selling Shareholder, did or will
conform to the requirements of the Act, and (ii) neither the Registration
Statement nor the Prospectus as it relates to such Selling Shareholder did
or will include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(h) To the knowledge of each Selling Shareholder, the representations
and warranties of the Company set forth in section 2 hereof are true and
correct.
(i) The information contained in such Selling Shareholder's Selling
Shareholders' Questionnaire completed in connection with the Company's
public offering and delivered to the Representatives was, as of the date of
such questionnaire, and is, as of the date of this Agreement, true and
correct.
A certificate signed by or on behalf of any Selling Shareholder as
such and delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and warranty by such Selling Shareholder to the
Underwriters as to the matters covered thereby. A certificate delivered by or
on behalf of any Selling Shareholder to counsel for the Selling Shareholders for
purposes of enabling such counsel to render the opinion referred in Section
10(e) will also be furnished to the Representatives and counsel for the
Underwriters and shall be deemed to be additional representations and warranties
to the Underwriters by such Selling Shareholder as to the matters covered
thereby.
SECTION 4. Representation of Underwriters. The Representatives will
------------------------------
act as the representatives for the several Underwriters in connection with the
public offering of the Shares, and any action under or in respect of this
Agreement taken by the Representatives will be binding upon all of the
Underwriters.
SECTION 5. Information Furnished by the Underwriters. The
-----------------------------------------
information set forth in the penultimate paragraph on the "Table of Contents"
page of the Prospectus concerning the terms of the offering by the Underwriters
and the concession and reallowance amounts appearing under the caption
"Underwriting" in the Prospectus constitute all of the information furnished to
the Company by and on behalf of the Underwriters for use in connection with the
preparation of the Registration Statement and the Prospectus, as such
information is referred to in this Agreement.
SECTION 6. Purchase, Sale and Delivery of Shares.
-------------------------------------
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth,
the Company agrees to sell to the Underwriters identified in Schedule II
annexed hereto _________ Firm Shares, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company the number of Firm
Shares as hereinafter set forth at the price per share of $__________. The
obligation of each Underwriter to the Company shall be to purchase from the
Company that number of full Firm Shares which (as nearly as practicable in
full shares as determined by the
-12-
Representatives) bears the same proportion to the number of Firm Shares to
be sold by the Company as the number of shares set forth opposite the name
of such Underwriter in Schedule II annexed hereto bears to the total number
of Firm Shares to be purchased by all of the Underwriters under this
Agreement.
(b) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth,
each Selling Shareholder agrees, severally and not jointly, to sell to the
Underwriters that number of full Firm Shares set forth opposite the name of
such Selling Shareholder in Schedule I annexed hereto (a total of ________
shares from all of the Selling Shareholders), and each of the Underwriters
agrees, severally and not jointly, to purchase from each Selling
Shareholder the number of Firm Shares as hereinafter set forth at the same
purchase price per share as stated in the preceding paragraph. The
obligation of each Underwriter to each Selling Shareholder shall be to
purchase from that Selling Shareholder that number of full Firm Shares
which (as nearly as practicable in full shares as determined by the
Representatives) bears the same proportion to the number of Firm Shares to
be sold by such Selling Shareholder as the number of shares set forth
opposite the name of such Underwriter in Schedule II annexed hereto bears
to the total number of Firm Shares to be purchased by all of the
Underwriters under this Agreement.
(c) On the First Closing Date (as hereinafter defined), the Company
and the Custodian on behalf of the Selling Shareholders will deliver to the
Representatives, at the offices of Xxxxxx X. Xxxxx & Co. Incorporated, 000
Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or through the
facilities of The Depository Trust Company, for the accounts of the several
Underwriters, certificates representing the Firm Shares to be sold by them
against payment of the purchase price therefor by wire transfer of
immediately available funds to a bank account designated not less than two
days prior to the First Closing Date by the Company with respect to the
Firm Shares being sold by the Company and to a bank account designated not
less than two days prior to the First Closing Date by the Custodian with
respect to the Firm Shares being sold by the Selling Shareholders. As
referred to in this Agreement, the "First Closing Date" shall be on the
third full business day after the date of the Prospectus, at 9:00 a.m.,
Milwaukee, Wisconsin time, or at such other date or time not later than ten
full business days after the date of the Prospectus as the Representatives,
the Company and the Attorneys-in-Fact (or either of them) may agree. The
certificates for the Firm Shares to be so delivered will be in
denominations and registered in such names as the Representatives request
by notice to the Company and the Attorneys-in-Fact, or either of them,
prior to the First Closing Date, and such certificates will be made
available for checking and packaging at 9:00 a.m., Milwaukee, Wisconsin
time on the first full business day preceding the First Closing Date at a
location to be designated by the Representatives.
(d) In addition, on the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein
set forth, the Company and Selling Shareholders hereby agree to sell to the
Underwriters, and the Underwriters, severally and not jointly, shall have
the right at any time within thirty days after the date of the Prospectus
to purchase up to ________ Optional Shares from the Company and up to
__________ Optional Shares from the Selling Shareholders at the purchase
price per share to be paid for the Firm Shares, for use solely in covering
any over-allotments made by the Underwriters in the sale and distribution
of the Firm Shares. The option granted hereunder may be exercised upon
notice by the Representatives to the Company and the Attorneys-in-Fact, or
either of them, within thirty days after the date of the Prospectus setting
-13-
forth the aggregate number of Optional Shares to be purchased by the
Underwriters and sold by the Company and the Selling Shareholders, the
names and denominations in which the certificates for such shares are to be
registered and the date and place at which such certificates will be
delivered. Such date of delivery (the "Second Closing Date") shall be
determined by the Representatives, provided that the Second Closing Date,
which may be the same as the First Closing Date, shall not be earlier than
the First Closing Date and, if after the First Closing Date, shall not be
earlier than three nor later than ten full business days after delivery of
such notice to exercise. The number of Optional Shares to be sold by each
Selling Shareholder pursuant to such notice shall equal that number of full
Optional Shares which (as nearly as practicable in full shares as
determined by the Representatives) bears the same proportion to the number
of Optional Shares to be purchased by the Underwriters as the maximum
number of Optional Shares to be sold by such Selling Shareholder bears to
the maximum number of Optional Shares to be sold by all the Selling
Shareholders, in each case as set forth on Schedule I hereof. Certificates
for the Optional Shares will be made available for checking and packaging
at 9:00 a.m., Milwaukee, Wisconsin time, on the first full business day
preceding the Second Closing Date at a location to be designated by the
Representatives. The manner of payment for and delivery of (including the
denominations of and the names in which certificates are to be registered)
the Optional Shares shall be the same as for the Firm Shares.
(e) The Representatives have advised the Company and the Attorneys-in-
Fact that each Underwriter has authorized the Representatives to accept
delivery of the Shares and to make payment therefor. It is understood that
the Representatives, individually and not as Representatives of the
Underwriters, may (but shall not be obligated to) make payment for any
Shares to be purchased by any Underwriter whose funds shall not have been
received by the Representatives by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter, but
any such payment shall not relieve such Underwriter from any obligation
under this Agreement. As referred to in this Agreement, "Closing Date"
shall mean either the First Closing Date or the Second Closing Date.
SECTION 7. Covenants of the Company. The Company covenants and
------------------------
agrees with the several Underwriters that:
(a) If the effective time of the Registration Statement is not prior
to the execution and delivery of this Agreement, the Company will use its
best efforts to cause the Registration Statement to become effective at the
earliest possible time and, upon notification from the Commission that the
Registration Statement has become effective, will so advise the
Representatives and counsel to the Underwriters promptly. If the effective
time of the Registration Statement is prior to the execution and delivery
of this Agreement and any information shall have been omitted therefrom in
reliance upon Rule 430A, the Company, at the earliest possible time, will
furnish the Representatives with a copy of the Prospectus to be filed by
the Company with the Commission to comply with Rule 424(b) and Rule 430A
under the Act and, if the Representatives do not object to the contents
thereof, will comply with such Rules. Upon compliance with such Rules, the
Company will so advise the Representatives promptly. The Company will
advise the Representatives and counsel to the Underwriters and the
Attorneys-in-Fact promptly of the issuance by the Commission or any state
securities commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose, or of any notification of the suspension of qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceedings for that purpose, and will also advise the Representatives and
counsel to the
-14-
Underwriters and the Attorneys-in-Fact promptly of any request of the
Commission for amendment or supplement of the Registration Statement, of
any Preliminary Prospectus or of the Prospectus, or for additional
information, and the Company will not file any amendment or supplement to
the Registration Statement (either before or after it becomes effective),
to any Preliminary Prospectus or to the Prospectus (including a prospectus
filed pursuant to Rule 424(b)), or file any document under the Exchange Act
before the termination of the public offering of the Shares by the
Underwriters if such document would be deemed to be incorporated by
reference in the Registration Statement, if the Representatives have not
been furnished with a copy prior to such filing (with a reasonable
opportunity to review such amendment or supplement) or if the
Representatives object to such filing.
(b) If, at any time when a prospectus relating to the Shares is
required by law to be delivered in connection with sales by an Underwriter
or dealer, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact, or would omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to supplement the
Prospectus to comply with the Act or to file under the Exchange Act any
document which would be deemed to be incorporated by reference in the
Registration Statement to comply with the Act or the Exchange Act, the
Company promptly will advise the Representatives and counsel to the
Underwriters and the Attorneys-in-Fact thereof and will promptly prepare
and file with the Commission, at its expense, an amendment to the
Registration Statement or such document which will correct such statement
or omission or an amendment which will effect such compliance; and, if any
Underwriter is required to deliver a prospectus after the effective date of
the Registration Statement, the Company, upon request of the
Representatives, will prepare promptly such prospectus or prospectuses as
may be necessary to permit compliance with the requirements of Section
10(a)(3) of the Act. The Company consents to the use, in accordance with
the provisions of the Act and with the Blue Sky Laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by dealers,
of each Preliminary Prospectus.
(c) Neither the Company nor any Subsidiary will, prior to the Second
Closing Date, if any, incur any liability or obligation, direct or
contingent, or enter into any material transaction, other than in the
ordinary course of business, or enter into any transaction with an
"affiliate," as defined in Rule 405 under the Act, which is required to be
described in the Prospectus pursuant to Item 404 of Regulation S-K under
the Act, except as described in the Prospectus.
(d) Neither the Company nor any Subsidiary will, prior to the Second
Closing Date, if any, acquire any of the Common Stock nor will the Company
declare or pay any dividend or make any other distribution upon its Common
Stock payable to shareholders of record on a date prior to such earlier
date, except as described in the Prospectus.
(e) The Company will make generally available to its security holders
and the Representatives an earnings statement as soon as practicable, but
in no event later than sixty days after the end of its fiscal quarter in
which the first anniversary of the effective date of the Registration
Statement occurs, covering a period of twelve consecutive calendar months
beginning after the effective date of the Registration Statement, which
will satisfy the provisions of the last paragraph of Section 11(a) of the
Act and Rule 158 promulgated thereunder.
-15-
(f) During such period as a prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, the Company
will furnish to the Representatives, at the expense of the Company, copies
of the Registration Statement, the Prospectus, any Preliminary Prospectus
and all amendments and supplements to any such documents, including any
document filed under the Exchange Act and deemed to be incorporated by
reference in the Registration Statement, in each case as soon as available
and in such quantities as the Representatives may reasonably request.
(g) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder for the purposes set forth in the
Prospectus, and will timely comply with Rule 463 under the Act with respect
to the disclosure of the use of such net proceeds.
(h) The Company will cooperate with the Representatives and counsel to
the Underwriters in qualifying or registering the Shares for sale under the
Blue Sky Laws of such jurisdictions as the Representatives designate, and
will continue such qualifications or registrations in effect so long as
reasonably requested by the Representatives to effect the distribution of
the Shares. The Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such
jurisdiction where it is not presently qualified. In each jurisdiction
where any of the Shares shall have been qualified as provided above, the
Company will file such reports and statements as may be required to
continue such qualification for a period of not less than one year from the
date of the Prospectus. The Company shall promptly prepare and file with
the Commission, from time to time, such reports as may be required to be
filed by the Act and the Exchange Act, and the Company shall comply in all
respects with the undertakings given by the Company in connection with the
qualification or registration of the Shares for offering and sale under the
Blue Sky Laws.
(i) During the period of three years from the date of the Prospectus,
the Company will furnish to each of the Representatives and to each of the
other Underwriters who may so request, as soon as available, each report,
statement or other document of the Company or its Board of Directors mailed
to its shareholders or filed with the Commission, and such other
information concerning the Company as the Representatives may reasonably
request.
(j) The Company shall deliver the requisite notice of issuance to
Nasdaq and shall take all necessary or appropriate action within its power
to maintain the authorization for trading of the Common Stock as a Nasdaq
National Market security, or take such action to authorize the Common Stock
for listing on the New York Stock Exchange or the American Stock Exchange,
for a period of at least thirty-six months after the date of the
Prospectus.
(k) The Company shall not, for a period of 90 days after the date of
the Prospectus, without the prior written consent of Xxxxx, directly or
indirectly, offer, sell or otherwise dispose of, contract to sell or
otherwise dispose of, or cause or in any way permit to be sold or otherwise
disposed of, any shares of Common Stock, rights to purchase shares of
Common Stock, or securities that are convertible or exchangeable into
shares of Common Stock, except for (i) the issuance and sale by the Company
of Common Stock upon exercise of presently existing outstanding stock
options, (ii) the sale of the Shares to be sold by the Company pursuant to
this Agreement, (iii) the grant of employee stock options pursuant to the
Company's 1997 Stock Option Plan, a copy of which is filed as an exhibit to
the Company's Annual Report on Form 10-K for the fiscal year ended December
26, 1999, provided that none
-16-
of such options shall be exercisable during the 90-day period herein
described, and (iv) issuance of securities in connection with the strategic
acquisitions or alliances so long as the recipients of such securities
enter into written agreement with Xxxxx providing for restrictions on the
disposition of such securities similar to those set forth in this Section
7(k) for the remainder of the 90-day period herein described.
(l) The Company will maintain a transfer agent and, if required by law
or the rules of The Nasdaq Stock Market or any national securities exchange
on which the Common Stock is listed, a registrar (which, if permitted by
applicable laws and rules, may be the same entity as the transfer agent)
for its Common Stock.
(m) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act, any rumor, publication or event
relating to of affecting the Company shall occur as a result of which, in
the opinion of Xxxxx, the market price of the Common Stock has been or is
likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to the Prospectus), the
Company will, after written notice from Xxxxx advising the Company of any
of the matters set forth above, promptly consult with Xxxxx concerning the
advisability and substance of, and, if the Company and Xxxxx determine that
it is appropriate, disseminate, a press release or other public statement
responding to or commenting on, such rumor, publication or event.
(n) If the sale to the Underwriters of the Shares is not consummated
for any reason other than termination of this Agreement pursuant to section
13 hereof, without limiting any other rights the Underwriters may have, the
Company agrees to reimburse the Underwriters upon demand for all out-of-
pocket expenses (including reasonable fees and expenses of counsel for the
Underwriters), that shall have been incurred by the Underwriters in
connection with the proposed purchase and sale of the Shares, and the
provisions of sections 9 and 12 hereof shall at all times be effective and
apply.
(o) The Company will comply or cause to be complied with the
conditions to the obligations of the Underwriters in section 10 hereof.
SECTION 8. Covenants of the Selling Shareholders. Each Selling
-------------------------------------
Shareholder, severally and not jointly, covenants and agrees with the several
Underwriters and the Company as follows:
(a) If the effective time of the Registration Statement is not prior
to the execution and delivery of this Agreement, such Selling Shareholder
will cooperate to the extent necessary to cause the Registration Statement
to become effective at the earliest possible time; and such Selling
Shareholder will do and perform all things to be done and performed by such
Selling Shareholder prior to each Closing Date, pursuant to this Agreement
or the Durable Power of Attorney and Custody Agreement.
(b) Such Selling Shareholder agrees to deliver to the Custodian on or
prior to the First Closing Date a properly completed and executed United
States Treasury Department Form W-9 (or other applicable substitute form or
statement specified by Treasury Department regulations in lieu thereof).
-17-
(c) Such Selling Shareholder will pay all federal and other taxes, if
any, on the transfer or sale of the Shares being sold by such Selling
Shareholder to the Underwriters.
(d) For a period of 90 days after the date of the Prospectus, such
Selling Shareholder will not, without the prior written consent of Xxxxx,
directly or indirectly, offer, sell, transfer, or pledge, contract to sell,
transfer or pledge or cause or in any way permit to be sold, transferred,
pledged or otherwise disposed of any: (i) shares of Common Stock; (ii)
rights to purchase shares of Common Stock (including, without limitation,
shares of Common Stock that may be deemed to be beneficially owned by such
Selling Shareholder in accordance with the rules and regulations of the
Commission and shares of Common Stock that may be issued upon exercise of a
stock option, warrant or other convertible security); or (iii) securities
that are convertible or exchangeable into shares of Common Stock.
(e) Such Selling Shareholder will furnish any documents, instruments
or other information which the Representatives may reasonably request in
connection with the sale and transfer of the Shares to the Underwriters.
SECTION 9. Payment of Expenses. Whether or not the transactions
-------------------
contemplated hereunder are consummated or this Agreement becomes effective, or
if this Agreement is terminated for any reason, the Company will pay the costs,
fees and expenses incurred in connection with the public offering of the Shares.
Such costs, fees and expenses to be paid by the Company include, without
limitation:
(a) All costs, fees and expenses (excluding the expenses incurred by
the Underwriters and the legal fees and disbursements of counsel for the
Underwriters, but including such fees and disbursements described in
subsection (b) of this section 9) incurred in connection with the
performance of the Company's obligations hereunder, including without
limiting the generality of the foregoing: the registration fees related to
the filing of the Registration Statement with the Commission; the fees and
expenses related to the quotation of the Shares on Nasdaq; the fees and
expenses of the Company's counsel, accountants, transfer agent and
registrar and one counsel for the Selling Shareholders; the costs and
expenses incurred in connection with the preparation, printing, shipping
and delivery of the Registration Statement, each Preliminary Prospectus and
the Prospectus (including all exhibits and financial statements) and all
agreements and supplements provided for herein, this Agreement, the
Preliminary and Supplemental Blue Sky Memoranda and the Durable Power of
Attorney and Custody Agreement, including, without limitation, shipping
expenses via overnight delivery and/or courier service to comply with
applicable prospectus delivery requirements; and the costs and expenses
associated with the production of materials related to, and travel expenses
incurred by the management of the Company in connection with, the various
meetings to be held between the Company's management and prospective
investors.
(b) All registration fees and expenses, including legal fees and
disbursements of counsel for the Underwriters incurred in connection with
qualifying or registering all or any part of the Shares for offer and sale
under the Blue Sky Laws and the clearing of the public offering and the
underwriting arrangements evidenced hereby with the NASD.
(c) All fees and expenses related to printing of the certificates for
the Shares, and all transfer taxes, if any, with respect to the sale and
delivery of the Shares.
-18-
Notwithstanding the foregoing, each Selling Shareholder shall be solely
responsible for any transfer or sales tax imposed upon the transfer and sale of
such Selling Shareholder's Shares to the Underwriters. All costs and expenses
incident to the performance of any Selling Shareholder's obligations hereunder
which are not otherwise specifically provided for in this section will be borne
and paid solely by each such Selling Shareholder.
SECTION 10. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the several Underwriters under this Agreement shall be subject to
the accuracy of the representations and warranties on the part of the Company
and the Selling Shareholders herein set forth as of the date hereof and as of
each Closing Date, to the accuracy of the statements of the Company's officers,
the Selling Shareholders and the Attorneys-in-Fact on behalf of the Selling
Shareholders made pursuant to the provisions hereof, to the performance by the
Company and the Selling Shareholders of their respective obligations hereunder,
and to the following additional conditions, unless waived in writing by the
Representatives:
(a) The Registration Statement shall have been declared effective by
the Commission not later than [5:30 p.m.,] Washington, D. C. time, prior to
the date [on the date] of this Agreement, or such later time as shall have
been consented to by the Representatives; all filings required by Rules
424(b) and 430A under the Act shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement shall have been
issued by the Commission or any state securities commission nor, to the
knowledge of the Company or the Selling Shareholders, shall any proceedings
for that purpose have been initiated or threatened; and any request of the
Commission or any state securities commission for inclusion of additional
information in the Registration Statement, or otherwise, shall have been
complied with to the satisfaction of the Representatives.
(b) Since the dates as of which information is given in the
Registration Statement:
(i) there shall not have occurred any change or development
involving, or which could be expected to involve, a Material Adverse
Effect, whether or not arising from transactions in the ordinary
course of business; and
(ii) the Company shall not have sustained any loss or
interference from any labor dispute, strike, fire, flood, windstorm,
accident or other calamity (whether or not insured) or from any court
or governmental action, order or decree,
the effect of which on the Company, in any such case described in clause
(i) or (ii) above, is in the opinion of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the
manner contemplated in the Registration Statement and the Prospectus.
(c) The Representatives shall not have advised the Company that the
Registration Statement or the Prospectus contains an untrue statement of
fact that, in the opinion of the Representatives or counsel for the
Underwriters, is material, or omits to state a fact that, in the opinion of
the Representatives or such counsel, is material and is required to be
stated therein or necessary to make the statements therein not misleading.
(d) The Representatives shall have received an opinion of Xxxxxx, Xxxx
& Xxxxxxxx LLP, counsel for the Company addressed to the Representatives,
as the
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Representatives of the Underwriters, and dated the First Closing Date or
the Second Closing Date, as the case may be, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation and in good standing under the laws of its
jurisdiction of incorporation, with full corporate power and authority
to own, lease and operate its properties and conduct its business as
presently conducted and as described in the Prospectus and the
Registration Statement; the Company is duly registered and qualified
to do business as a foreign corporation under the laws of, and is in
good standing as such in, each jurisdiction in which such registration
or qualification is required, except where the failure to so register
or qualify would not have a Material Adverse Effect;
(ii) The authorized capital stock of the Company consists of
100,000,000 shares of Common Stock, par value $.001 per share, and
10,000,000 shares of Preferred Stock, par value $.001 per share, and
all such stock conforms as to legal matters to the descriptions
thereof in the Prospectus and the Registration Statement;
(iii) The issued and outstanding shares of capital stock of the
Company immediately prior to the issuance and sale of the Shares to be
sold by the Company hereunder have been duly authorized and validly
issued, are fully paid and nonassessable, and there are no preemptive,
preferential or, except as described in the Prospectus, other rights
to subscribe for or purchase any shares of capital stock of the
Company, and to such counsel's knowledge, no shares of capital stock
of the Company have been issued in violation of such rights;
(iv) Except for the Subsidiaries, the Company has no
subsidiaries, and the Company does not own any equity interest of five
percent (5%) or more in or control, directly or indirectly, any other
corporation, limited liability company, partnership, joint venture,
association, trust or other business organization except as described
in the Prospectus and the Registration Statement; each domestic
Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as presently
conducted and as described in the Prospectus and the Registration
Statement; each Subsidiary is duly registered or qualified to do
business as a foreign corporation under the laws of, and is in good
standing as such in, each jurisdiction in which such registration or
qualification is required, except where the failure to so register or
qualify would not have a Material Adverse Effect; the issued and
outstanding shares of the capital stock of each Subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable
and there are no preemptive, preferential or, to such counsel's
knowledge, other rights to subscribe for or purchase any shares of
capital stock of any Subsidiary, and to such counsel's knowledge, no
shares of capital stock of any Subsidiary have been issued in
violation of such rights; the Company owns directly and, to such
counsel's knowledge, beneficially all of the issued and outstanding
capital stock of each Subsidiary, free and clear of any and all liens,
claims, encumbrances and security interests;
(v) The certificates for the Shares to be delivered hereunder
are in due and proper form and conform to the requirements of
applicable law; and when duly
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countersigned by the Company's transfer agent, and delivered to the
Representatives or upon the order of the Representatives against
payment of the agreed consideration therefor in accordance with the
provisions of this Agreement, the Shares to be sold by the Company
represented thereby will be duly authorized and validly issued, fully
paid and nonassessable, and free of any preemptive, preferential or
other rights to subscribe for or purchase shares of Common Stock;
(vi) The Registration Statement has become effective under the
Act, and to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or are threatened
under the Act or any Blue Sky Laws; the Registration Statement and the
Prospectus and any amendment or supplement thereto, including any
document incorporated by reference in the Registration Statement,
(except for the financial statements and other statistical or
financial data included therein as to which such counsel need express
no opinion) comply as to form in all material respects with the
requirements of the Act; the conditions for use of Form S-3, set forth
in the General Instructions thereto, have been satisfied; no facts
have come to the attention of such counsel which lead it to believe
that either the Registration Statement or the Prospectus or any
amendment or supplement thereto, including any document incorporated
by reference in the Registration Statement, contains any untrue
statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the
First Closing Date or the Second Closing Date, as the case may be,
contained any untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances under which they were made (except for the financial
statements and other financial data included therein as to which such
counsel need express no opinion); to such counsel's knowledge, there
are no legal or governmental proceedings pending or threatened,
including, without limitation, any such proceedings that are related
to environmental or employment discrimination matters, required to be
described in the Registration Statement or the Prospectus which are
not so described or which question the validity of this Agreement or
any action taken or to be taken pursuant thereto, nor is there any
transaction, relationship, agreement, contract or other document of a
character required to be described in the Registration Statement or
the Prospectus, or required to be filed under the Exchange Act if upon
such filing they would be incorporated, in whole or in part, by
reference therein, or to be filed as an exhibit to or incorporated by
reference in the Registration Statement by the Act, which is not
described, filed or incorporated by reference as required;
(vii) The Company has full corporate power and authority to
enter into and perform this Agreement; the performance of the
Company's obligations hereunder and the consummation of the
transactions described herein have been duly authorized by the Company
by all necessary corporate action and this Agreement has been duly
executed and delivered by and on behalf of the Company, and is a
legal, valid and binding agreement of the Company enforceable against
the Company in accordance with its terms, except that rights to
indemnity or contribution may be limited by applicable law and except
as enforceability of this Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by equitable principles limiting the
right to specific performance or other
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equitable relief; no consent, approval, authorization or other order
or decree of any court, regulatory or governmental body, arbitrator,
administrative agency or other instrumentality of the United States or
other country or jurisdiction having jurisdiction over the Company is
required for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement
(except for compliance with the Act, the Exchange Act, applicable Blue
Sky Laws and the clearance of the underwriting arrangements by the
NASD);
(viii) The execution, delivery and performance of this Agreement
by the Company will not: (A) violate any provisions of the Certificate
of Incorporation or By-laws of the Company or any Subsidiary; (B)
violate any provisions of, or result in the breach, modification or
termination of, or constitute a default under, any agreement, lease,
franchise, license, indenture, permit, mortgage, deed of trust, other
evidence of indebtedness or other instrument to which the Company or
any Subsidiary is a party or by which the Company or such Subsidiary,
or any of their respective owned or leased property is bound, and
which is filed or incorporated by reference as an exhibit to the
Registration Statement; or (C) violate any statute, ordinance, order,
rule, decree or regulation of any court, regulatory or governmental
body, arbitrator, administrative agency or other instrumentality of
the United States having jurisdiction over the Company or any
Subsidiary (assuming compliance with all applicable federal and state
securities laws);
(ix) To such counsel's knowledge, except as described in the
Prospectus, there are no holders of Common Stock or other securities
of the Company, or securities that are convertible or exchangeable
into Common Stock or other securities of the Company, that have rights
to the registration of such securities under the Act or any Blue Sky
Laws;
(x) The Common Stock is a National Market security on The
Nasdaq Stock Market and is registered under the Exchange Act;
(xi) Neither the Company nor any Subsidiary is, nor with the
giving of notice or passage of time or both would be, in violation of
its respective Certificate of Incorporation or By-laws or, to such
counsel's knowledge, in default in any material respect in the
performance of any agreement, lease, franchise, license, permit,
mortgage, deed of trust, evidence of indebtedness or other instrument,
or any other document that is filed as an exhibit to or incorporated
by reference in the Registration Statement, to which the Company or
any Subsidiary is subject or bound;
(xii) Neither the Company nor any Subsidiary is an "investment
company", an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended, and, upon its
receipt of any proceeds from the sale of the Shares, the Company will
not become or be deemed to be an "investment company" thereunder;
(xiii) The description or incorporation by reference in the
Registration Statement and the Prospectus of statutes, law,
regulations, legal and governmental proceedings, and contracts and
other legal documents described or incorporated by
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reference therein fairly and correctly present, in all material
respects, the information required to be included therein by the Act;
and
(xiv) All offers and sales by the Company of its capital stock
before the date hereof were at all relevant times duly registered
under or exempt from the registration requirements of the Act, and
were duly registered under or the subject of an available exemption
from the registration requirements of any applicable Blue Sky Laws.
In rendering such opinion, counsel for the Company may rely, to the extent
counsel deems such reliance proper, as to matters of fact upon certificates of
officers of the Company and of governmental officials, and with respect to the
matter addressed in Section 10(d)(xiv) only, the opinion of Xxxxxxxxx Xxxxxxx
Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, the Company's general outside
counsel. Copies of all such certificates and opinions shall be furnished to the
Representatives and for the Underwriters on or before each Closing Date.
(e) The Representatives shall have received an opinion from Xxxxxx,
Xxxx & Xxxxxxxx LLP, counsel for the Selling Shareholders, dated the First
Closing Date or the Second Closing Date, as the case may be, to the effect
that:
(i) Each of this Agreement and the Durable Power of Attorney
and Custody Agreement has been duly authorized, executed and delivered
by or on behalf of each Selling Shareholder and such agreement
constitutes the valid and binding agreement of such Selling
Shareholder, enforceable in accordance with its respective terms,
except that rights to indemnity or contribution thereunder may be
limited by applicable law and except as enforceability of such
agreement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws generally affecting the rights of creditors
and by equitable principles limiting the right to specific performance
or other equitable relief;
(ii) The execution and delivery of this Agreement and the
Durable Power of Attorney and Custody Agreement and the consummation
of the transactions herein and therein contemplated will not, if
applicable, result in the violation of any provisions of the
Certificate of Incorporation, By-laws or other governing documents of
such Selling Shareholder, or constitute a breach, or be in
contravention, of any provision of any agreement, franchise, license,
indenture, mortgage, deed of trust or other instrument to which such
Selling Shareholder is a party or by which such Selling Shareholder or
such Selling Shareholder's property may be bound or affected, or any
statute, rule or regulation applicable to such Selling Shareholder, or
violate any order or decree of any court, regulatory or governmental
body, administrative body or instrumentality of the United States or
other jurisdiction having jurisdiction over such Selling Shareholder
or any of such Selling Shareholder's property, which violation would
reasonably be expected to have a material adverse effect on the
ability of such Selling Shareholder to perform his or her obligations
under this Agreement, the Durable Power of Attorney or the Custody
Agreement;
(iii) Such Selling Shareholder has full legal right, power and
authority, and has secured any consent, approval, authorization and
order required to enter into and perform this Agreement and the
Durable Power of Attorney and Custody Agreement and to sell, assign,
transfer and deliver title to the Shares to be sold by such Selling
-23-
Shareholder as provided herein; and upon delivery to the Underwriters
or upon the order of the Representatives against payment of the agreed
consideration therefor in accordance with the provisions of this
Agreement, the Underwriters will acquire good and marketable title to
the Shares to be sold hereunder by such Selling Shareholder, free and
clear of all voting trust arrangements, liens, encumbrances, security
interests, equities, claims and community or marital property rights;
and
(iv) To such counsel's knowledge, the information concerning the
Selling Shareholders contained in the Prospectus under the caption
"Selling Shareholders" complies in all material respects with the Act.
In rendering such opinion, counsel for the Selling Shareholders may rely,
to the extent counsel deems such reliance proper, as to matters of fact upon
certificates of the Selling Shareholders, and copies of all such certificates
shall be furnished to the Representatives and counsel for the Underwriters on or
before each Closing Date.
(f) The Representatives shall have received an opinion of Xxxxx &
Lardner, counsel for the Underwriters, dated the First Closing Date or the
Second Closing Date, as the case may be, with respect to the issuance and
sale of the Shares by the Company, the Registration Statement and other
related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents and shall have exhibited to
them such papers and records as they request for the purpose of enabling
them to pass upon such matters.
(g) The Representatives shall have received on each Closing Date, a
certificate of Xxxxxx X. Xxxxxx, Chief Executive Officer, and Xxxxxx X.
Xxxxxxxxxxx, Vice President, Chief Financial Officer and Secretary, of the
Company, to the effect that:
(i) The representations and warranties of the Company set forth
in section 2 hereof are true and correct as of the date of this
Agreement and as of the date of such certificate, and the Company has
complied with all the agreements and satisfied all the conditions to
be performed or satisfied by it at or prior to the date of such
certificate;
(ii) The Commission has not issued an order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus or
any amendment or supplement thereto; no stop order suspending the
effectiveness of the Registration Statement has been issued; and to
the knowledge of the respective signatories, no proceedings for that
purpose have been initiated or are pending or contemplated under the
Act or under the Blue Sky Laws of any jurisdiction;
(iii) Each of the respective signatories has carefully examined
the Registration Statement and the Prospectus, and any amendment or
supplement thereto, including any documents filed under the Exchange
Act and deemed to be incorporated by reference in the Registration
Statement, and such documents contain all statements required to be
stated therein, and do not include any untrue statement of a material
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and since
the date on which the Registration Statement was initially filed, no
event has occurred that was required to be set forth in an amended or
supplemented prospectus or in an amendment to the Registration
Statement that has not
-24-
been so set forth, and there has been no document required to be filed
under the Exchange Act that upon such filing would be deemed to be
incorporated by reference in the Registration Statement that has not
been so filed; and
(iv) Since the date on which the Registration Statement was
initially filed with the Commission, there shall not have occurred any
change or development involving, or which could be expected to
involve, a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as disclosed
in the Prospectus and the Registration Statement as heretofore amended
or (but only if the Representatives expressly consent thereto in
writing) as disclosed in an amendment or supplement thereto filed with
the Commission and delivered to the Representatives after the
execution of this Agreement; since such date and except as so
disclosed or in the ordinary course of business, the Company has not
incurred any liability or obligation, direct or indirect, or entered
into any transaction which is material to the Company; since such date
and except as so disclosed, there has not been any change in the
outstanding capital stock of the Company except for issuances of
Common Stock in connection with the exercise of stock options
outstanding on such date, or any change that is material to the
Company in the short-term debt or long-term debt of the Company; since
such date and except as so disclosed, the Company has not acquired any
of the Common Stock or other capital stock of the Company nor has the
Company declared or paid any dividend, or made any other distribution,
upon its outstanding Common Stock payable to shareholders of record on
a date prior to such Closing Date; since such date and except as so
disclosed, the Company has not incurred any material contingent
obligations, and no material litigation is pending or threatened
against the Company; and, since such date and except as so disclosed,
the Company has not sustained any material loss or interference from
any strike, fire, flood, windstorm, accident or other calamity
(whether or not insured) or from any court or governmental action,
order or decree.
The delivery of the certificate provided for in this subsection (g)
shall be and constitute a representation and warranty of the Company as to
the facts required in the immediately foregoing clauses (i), (ii), (iii)
and (iv) to be set forth in said certificate.
(h) The Representatives shall have received a certificate from each
Selling Shareholder (which may be signed by such Selling Shareholder's
Attorneys-in-Fact, or either of them), dated the First Closing Date or the
Second Closing Date, as the case may be, to the effect that: (i) the
representations and warranties of such Selling Shareholder in Section 3 of
this Agreement are true and correct as of the date of this Agreement and as
of the date of such certificate, as if again made on and as of such Closing
Date, and such Selling Shareholder has complied with all of the agreements
and satisfied all of the conditions to be performed or satisfied by such
Selling Shareholder at or prior to such Closing Date; and (ii) such Selling
Shareholder has no reason to believe that the Registration Statement or any
amendment thereto, including any documents filed under the Exchange Act and
deemed to be incorporated by reference in the Registration Statement, at
the time it was declared effective by the Commission contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as amended or supplemented, including
any documents filed under the Exchange Act and deemed to be incorporated by
reference in the Registration Statement, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the
-25-
statements therein, in the light of the circumstances under which they were
made, not misleading.
(i) At the time this Agreement is executed and also on each Closing
Date, there shall be delivered to the Representatives a letter addressed to
the Representatives, as the representatives of the Underwriters, from
Deloitte & Touche LLP, the Company's independent accountants, the first
letter to be dated the date of this Agreement, the second letter to be
dated the First Closing Date and the third letter (if applicable) to be
dated the Second Closing Date, which shall be in form and substance
satisfactory to the Representatives and shall contain information as of a
date within five days of the date of such letter. There shall not have been
any change or decrease set forth in any of the letters referred to in this
subsection (i) which makes it impracticable or inadvisable in the judgment
of the Representatives to proceed with the public offering or purchase of
the Shares as contemplated hereby.
(j) The Shares shall have been qualified or registered for sale under
the Blue Sky Laws of such jurisdictions as shall have been specified by the
Representatives, the underwriting terms and arrangements for the offering
shall have been cleared by the NASD, and the Common Stock shall have been
designated for inclusion as a Nasdaq National Market security on the Nasdaq
Stock Market and shall have been registered under the Exchange Act.
(k) Such further certificates and documents as the Representatives
may reasonably request (including certificates of officers of the Company).
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to the
Representatives and to Xxxxx & Xxxxxxx, counsel for the Underwriters. The
Company and the Selling Shareholders shall furnish the Representatives with such
manually signed or conformed copies of such opinions, certificates, letters and
documents as the Representatives may reasonably request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at either Closing Date is not so satisfied, this Agreement
at the election of the Representatives will terminate upon notification to the
Company and the Attorneys-in-Fact, or any one of them, for the Selling
Shareholders without liability on the part of any Underwriter, including the
Representatives, the Company or the Selling Shareholders except for the
provisions of section 7(n) hereof, the expenses to be paid by the Company and
the Selling Shareholders pursuant to section 9 hereof and except to the extent
provided in section 12 hereof.
SECTION 11. Maintain Effectiveness of Registration Statement. The
------------------------------------------------
Company will use its best efforts and the Selling Shareholders will use their
best efforts to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement, and, if such stop order is issued,
to obtain as soon as possible the lifting thereof.
SECTION 12. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act or the Exchange Act, from and against any losses,
claims, damages, expenses, liabilities or actions in respect thereof
("Claims"), joint or several, to which such Underwriter or each such
controlling person may become subject under the Act, the Exchange Act, Blue
Sky Laws or
-26-
other federal or state statutory laws or regulations, at common law or
otherwise (including payments made in settlement of any litigation),
insofar as such Claims arise out of or are based upon any breach of any
representation, warranty or covenant made by the Company in this Agreement,
or any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or in any application
filed under any Blue Sky Law or other document executed by the Company for
that purpose or based upon written information furnished by the Company and
filed in any state or other jurisdiction to qualify any or all of the
Shares under the securities laws thereof (any such document, application or
information being hereinafter called a "Blue Sky Application") or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Company agrees to reimburse each
Underwriter and each such controlling person for any reasonable legal fees
or other expenses incurred by such Underwriter or any such controlling
person in connection with investigating or defending any such Claim;
provided, however, that the Company and the Selling Shareholders will not
be liable in any such case to the extent that any such Claim arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or supplement thereto or in any Blue
Sky Application in reliance upon and in conformity with the written
information furnished to the Company pursuant to section 5 of this
Agreement. The indemnification obligations of the Company as provided above
are in addition to and in no way limit any liabilities the Company may
otherwise have.
(b) Each of the Selling Shareholders, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter and each controlling
person from and against any Claims to which such Underwriter or each such
controlling person may become subject under the Act, the Exchange Act, Blue
Sky Laws or other federal or state statutory laws or regulations, at common
law or otherwise (including payments made in settlement of any litigation),
insofar as such Claims arise out of or are based upon any breach of any
representations, warranty or covenant made by such Selling Shareholder in
this Agreement.
(c) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors and each of its officers
who signs the Registration Statement, and each person, if any, who controls
the Company within the meaning of the Act or the Exchange Act and each
Selling Shareholder against any Claim to which the Company, or any such
director, officer, controlling person or Selling Shareholder may become
subject under the Act, the Exchange Act, Blue Sky Laws or other federal or
state statutory laws or regulations, at common law or otherwise (including
payments made in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter and Baird), insofar
as such Claim arises out of or is based upon any untrue or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto, or in any Blue Sky Application, or arises out of or is based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or in
any Blue Sky Application, in reliance solely upon and in conformity with
the written information furnished by the Representatives to the Company
pursuant to section 5 of
-27-
this Agreement. Each Underwriter will severally reimburse any reasonable
legal fees or other expenses incurred by the Company, or any such director,
officer, controlling person, or Selling Shareholder in connection with
investigating or defending any such Claim, and from any and all Claims
solely resulting from failure of an Underwriter to deliver a Prospectus, if
the person asserting such Claim purchased Shares from such Underwriter and
a copy of the Prospectus (as then amended if the Company shall have
furnished any amendments thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended) would have
cured the defect giving rise to such Claim. The indemnification obligations
of each Underwriter as provided above are in addition to any liabilities
any such Underwriter may otherwise have. Notwithstanding the provisions of
this section, no Underwriter shall be required to indemnify or reimburse
the Company, or any officer, director, controlling person, or Selling
Shareholder in an aggregate amount in excess of the total price at which
the Shares purchased by any such Underwriter hereunder were offered to the
public, less the amount of any damages such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(d) Each Selling Shareholder, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors and each of
its officers who signs the Registration Statement, and each person, if any,
controlling the Company within the meaning of the Act or the Exchange Act
to the same extent as the foregoing indemnity from the Company to each
Underwriter set forth in subsection (a) of this section. In case any Claim
shall be brought or asserted against the Company, its directors, such
officers or any such controlling person, in respect of which indemnity may
be sought against any Selling Shareholder, such Selling Shareholder shall
have the rights and duties given to the Company, and the Company, such
directors or officers and any such controlling person shall have the rights
and duties given to the Underwriters by subsection (a) of this section.
(e) Promptly after receipt by an indemnified party under this section
of notice of the commencement of any action in respect of a Claim, such
indemnified party will, if a Claim in respect thereof is to be made against
an indemnifying party under this section, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve an indemnifying party from any
liability it may have to any indemnified party under this section or
otherwise. In case any such action is brought against any indemnified
party, and such indemnified party notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate in and, to the extent that he, she or it may wish, jointly with
all other indemnifying parties, similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and any indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to the indemnified party and/or other indemnified parties which are
different from or additional to those available to any indemnifying party,
the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties.
(f) Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the
defense of such action and upon approval by
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the indemnified party of counsel selected by the indemnifying party, the
indemnifying party will not be liable to such indemnified party under this
section for any legal fees or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless:
(i) the indemnified party shall have employed separate counsel
in connection with the assumption of legal defenses in accordance with
the proviso to the last sentence of subsection (e) of this section (it
being understood, however, that the indemnifying party shall not be
liable for the reasonable legal fees and expenses of more than one
separate counsel, approved by Baird, if one or more of the
Underwriters or their controlling persons are the indemnified
parties);
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the indemnified
party's notice to the indemnifying party of commencement of the
action; or
(iii) the indemnifying party has authorized the employment of
counsel at the expense of the indemnifying party.
(g) If the indemnification provided for in this section is
unavailable to an indemnified party under subsection (a), (b), (c) or (d)
hereof in respect of any Claim referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall, subject to
the limitations hereinafter set forth, contribute to the amount paid or
payable by such indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, each Selling Shareholder
and the Underwriters from the offering of the Shares; or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above, but also the relative fault of the Company, each Selling
Shareholder and the Underwriters in connection with the statements or
omissions which resulted in such Claim, as well as any other relevant
equitable considerations.
The relative benefits received by each of the Company, each
Selling Shareholder and the Underwriters shall be deemed to be in such
proportion so that the Underwriters are responsible for that portion
represented by the percentage that the amount of the underwriting discounts
and commissions per share appearing on the cover page of the Prospectus
bears to the public offering price per share appearing thereon, and the
Company (including its officers and directors and controlling persons), and
each of the Selling Shareholders, are responsible for the remaining
portion. The relative fault of the Company, each Selling Shareholder and
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company, such Selling Shareholder, or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the Claims
referred to above shall be deemed
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to include, subject to the limitations set forth in subsections (e) and (f)
of this section, any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or
claim.
(h) The Company, the Selling Shareholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
section were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method or allocation which does not take into account the equitable
considerations referred to in subsection (f) of this section.
Notwithstanding the other provisions of this section, no Underwriter shall
be required to contribute any amount that is greater than the amount by
which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this section are
several in proportion to their respective underwriting commitments and not
joint.
(i) The aggregate liability of each Selling Shareholder under this
Agreement, including with respect to the indemnification and contribution
provisions contained in this Section 12, shall be limited to the net
proceeds received by such Selling Shareholder from the Underwriters for the
sale of the Shares sold by such Selling Shareholder hereunder.
SECTION 13. Default of Underwriters. It shall be a condition to the
-----------------------
obligations of each Underwriter to purchase the Shares in the manner as
described herein, that, except as hereinafter provided in this section, each of
the Underwriters shall purchase and pay for all the Shares agreed to be
purchased by such Underwriter hereunder upon tender to the Representatives of
all such Shares in accordance with the terms hereof. If any Underwriter or
Underwriters default in their obligations to purchase Shares hereunder on either
the First Closing Date or the Second Closing Date and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed ten percent (10%) of the total number of Shares which
the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements for the purchase of such Shares by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date the nondefaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Shares which such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of Shares with respect to which such default or defaults occur
is greater than ten percent (10%) of the total number of Shares which the
Underwriters are obligated to purchase on such Closing Date, and arrangements
satisfactory to the Representatives for the purchase of such Shares by other
persons are not made within thirty-six hours after such default, this Agreement
will terminate without liability on the part of any nondefaulting Underwriter,
the Company or any Selling Shareholder except for the expenses to be paid by the
Company and the Selling Shareholders pursuant to section 9 hereof and except to
the extent provided in section 12 hereof.
In the event that Shares to which a default relates are to be
purchased by the nondefaulting Underwriters or by another party or parties, the
Representatives shall have the right to postpone the First Closing Date or the
Second Closing Date, as the case may be, for not more than
-30-
seven business days in order that the necessary changes in the Registration
Statement, Prospectus and any other documents, as well as any other
arrangements, may be effected. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
SECTION 14. Effective Date. This Agreement shall become effective
--------------
upon the execution and delivery of this Agreement by the parties hereto. Such
execution and delivery shall include an executed copy of this Agreement sent by
telecopier, facsimile transmission or other means of transmitting written
documents.
SECTION 15. Termination. Without limiting the right to terminate
-----------
this Agreement pursuant to any other provision hereof, this Agreement may be
terminated by the Representatives prior to or on the First Closing Date and the
over-allotment option from the Company and the Selling Shareholders referred to
in section 6 hereof, if exercised, may be cancelled by the Representatives at
any time prior to or on the Second Closing Date, if in the judgment of the
Representatives, payment for and delivery of the Shares is rendered
impracticable or inadvisable because:
(a) additional governmental restrictions, not in force and effect on
the date hereof, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or the American Stock Exchange,
or trading in securities generally shall have been suspended or materially
limited on either such exchange or on The Nasdaq Stock Market or a general
banking moratorium shall have been established by either federal or state
authorities in New York, California or Wisconsin;
(b) any event shall have occurred or shall exist which makes untrue
or incorrect in any material respect any statement or information contained
in the Registration Statement or which is not reflected in the Registration
Statement but should be reflected therein to make the statements or
information contained therein not misleading in any material respect; or
(c) an outbreak or escalation of hostilities or other national or
international calamity or any substantial change in political, financial or
economic conditions shall have occurred or shall have accelerated to such
extent, in the judgment of the Representatives, as to have a material
adverse effect on the financial markets of the United States, or to make it
impracticable or inadvisable to proceed with completion of the sale of and
payment for the Shares as provided in this Agreement.
Any termination pursuant to this Section shall be without liability on
the part of any Underwriter to the Company or any Selling Shareholder, or on the
part of the Company or any Selling Shareholder to any Underwriter, except for
expenses to be paid by the Company and the Selling Shareholders pursuant to
section 9 hereof or reimbursed by the Company pursuant to section 7(n) hereof
and except as to indemnification to the extent provided in section 12 hereof.
SECTION 16. Representations and Indemnities to Survive Delivery.
---------------------------------------------------
The respective indemnities, agreements, representations, warranties, covenants
and other statements of the Company, of its officers or directors, of the
Selling Shareholders, and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, Selling Shareholder
or the Company or any of
-31-
its or their partners, officers, directors or any controlling person, as the
case may be, and will survive delivery of and payment for the Shares sold
hereunder.
SECTION 17. Notices. All communications hereunder will be in
-------
writing and, if sent to the Representatives, will be mailed, delivered,
telecopied (with receipt confirmed) or telegraphed and confirmed to Xxxxxx X.
Xxxxx & Co. Incorporated at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000, Attention: Xxxxx X. Xxxx, Managing Director, with a copy to Xxxxxx X.
Xxxxxxx, Esq., Xxxxx & Xxxxxxx, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000, and if sent to the Company, will be mailed, delivered, telecopied (with
receipt confirmed) or telegraphed and confirmed to the Company at 000 Xxxxx
Xxxxxx, Xxxxx Basin Landing, Suite 6440, Xxx Xxxxxxxxx, XX 00000, with a copy to
Xxxxxxxx Xxxxx, Esq., Xxxxxx, Xxxx & Xxxxxxxx LLP, 0000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, XX 00000-0000, and, if sent to the Selling Shareholders, will be mailed,
delivered, telecopied (with receipt confirmed) or telegraphed and confirmed to
the Attorneys-in-Fact, or either of them, in care of the Company, with copies to
Xxxxxxxx Xxxxx, Esq., Xxxxxx, Xxxx & Xxxxxxxx LLP, 0000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, XX 00000-0000.
SECTION 18. Successors. This Agreement will inure to the benefit of
----------
and be binding upon the parties hereto and their respective successors, personal
representatives and assigns, and to the benefit of the officers and directors
and controlling persons referred to in section 12 hereof and no other person
will have any right or obligation hereunder. The term "successors" shall not
include any purchaser of the Shares as such from any of the Underwriters merely
by reason of such purchase.
SECTION 19. Partial Unenforceability. If any section, paragraph,
------------------------
clause or provision of this Agreement is for any reason determined to be
invalid or unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph clause or provision hereof.
SECTION 20. Applicable Law; Counterparts. This Agreement shall be
----------------------------
governed by and construed in accordance with the internal laws of the State of
Wisconsin without reference to conflict of law principles thereunder. This
Agreement may be signed in various counterparts which together shall constitute
one and the same instrument, and shall be effective when at least one
counterpart hereof shall have been executed by or on behalf of each party
hereto.
-32-
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, each of the
Selling Shareholders and the several Underwriters, including the
Representatives, all in accordance with its terms.
Very truly yours,
XXXX, XXXXXX & ASSOCIATES, INC.
By: ___________________________________________________
Xxxxxx X. Xxxxxx, Chief Executive Officer
THE SELLING SHAREHOLDERS:
By: ___________________________________________________
Attorney-in-Fact
By: ___________________________________________________
Attorney-in-Fact
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
XXXXXX X. XXXXX & CO. INCORPORATED
[___________________________]
By: XXXXXX X. XXXXX & CO. INCORPORATED
Acting as Representatives of the several
Underwriters (including themselves) identified
in Schedule II annexed hereto.
By:_________________________________________________
Authorized Representative
-00-
XXXX, XXXXXX & ASSOCIATES, INC.
Schedule I
Number of Firm Number of Optional
Shares Shares
------ ------
The Company
_________ _________
The Selling Shareholders:.
XXXX, XXXXXX & ASSOCIATES, INC.
Schedule II
Name of Underwriter Number of Firm
--------------------
Shares to
be Purchased
------------
Xxxxxx X. Xxxxx & Co. Incorporated........................
XXXX, XXXXXX & ASSOCIATES, INC.
Schedule III
Xxxx Xxxxxx (for internal employees)
------------------------------------
Xxxx Xxxxxx & Associates, Inc Dental Plan I
Xxxx Xxxxxx Flexible Benefit Plan 501
Xxxx Xxxxxx & Associates, Inc 401(k) Profit Sharing Plan
Hall Xxxxxx'x Employees Benefit Plan 504, Cigna Medical Plan
Hall Xxxxxx'x Employees Benefit Plan 503, Lifeguard Medical Plan
Hall Xxxxxx'x Employees Benefit Plan 502, UNUM Life and AD&D Plan I
Xxxx Xxxxxx (for contractors)
-----------------------------
Xxxx Xxxxxx & Associates, Inc 401(k) Profit Sharing Plan
Xxxx Xxxxxx & Associates Contractor Benefit Plan, CEBA Medical Plan
Xxxx Xxxxxx & Associates Contractor Benefit Plan, CEBA Dental Plan
Xxxx Xxxxxx & Associates Contractor Benefit Plan, CEBA Life Plan
IPEX
----
Xxxx Xxxxxx & Associates, Inc Dental Plan II
Xxxx Xxxxxx Flexible Benefit Plan 501
Xxxx Xxxxxx & Associates, Inc 401(k) Profit Sharing Plan
Hall Xxxxxx'x Employees Benefit Plan 502, UNUM Life and AD&D Plan II
Xxxx Xxxxxx - IPEX Benefit Plan 35336-000, Xxxxxx Medical Plan
Group IPEX, Inc. Benefit Plan C53Bx7, Blue Cross Medical and Dental Plan
HG/ITC
------
Interactive Acquisition Corp. Employees Benefit Plan, Oxford Health Plans
Interactive Acquisition Corp. Employees Benefit Plan, Fortis Benefits Insurance
Co
Interactive Acquisition Corp. Employees Benefit Plan, Metropolitan Life
Insurance Co.
Interactive Acquisition Corp, Dental Plan
Huntington Acquisition Corp. Employee Benefit Plan, ConnectiCare Inc.
Huntington Acquisition Corp. Employee Benefit Plan, Metlife
Huntington Acquisition Corp. Employee Benefit Plan, Provident
Huntington Acquisition Corp. Employee Benefit Plan, Fort Dearborn
Xxxx Xxxxxx & Associates, Inc 401(k) Profit Sharing Plan
TKI Consulting
--------------
TKI Acquisition Corp. d.b.a. TKI Consulting Employees Benefit Plan,
Medica Health Plans
TKI Acquisition Corp. d.b.a. TKI Consulting Employees Benefit Plan,
Dental Plan
TKI Consulting Long Term Disability Insurance Plan, Phoenix Insurance
Company
