Exhibit 1.1
CIRCOR INTERNATIONAL, INC.
1,350,000 Shares of Common Stock*
UNDERWRITING AGREEMENT
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_______________, 2001
XXXXXX X. XXXXX & CO. INCORPORATED
ING BARINGS, LLC
As Representatives of the Several Underwriters
Identified in Schedule I Annexed Hereto
c/o Xxxxxx X. Xxxxx & Co. Incorporated
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. CIRCOR International, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell 1,350,000 shares (the
"Firm Shares") of its authorized but unissued common stock, $.01 par value per
share (the "Common Stock"), to the several underwriters identified in Schedule I
annexed hereto (the "Underwriters"), who are acting severally and not jointly.
In addition, the Company has agreed to grant to the Underwriters an option to
purchase up to 202,500 additional shares of Common Stock (the "Optional Shares")
as provided in section 5 hereof. The Firm Shares and, to the extent such option
is exercised, the Optional Shares are hereinafter collectively referred to as
the "Shares."
You, as representatives of the Underwriters (the "Representatives"), have
advised the Company that the Underwriters propose to make a public offering of
their respective portions of the Shares as soon hereafter as in your judgment is
advisable and that the public offering price of the Shares initially will be
[$_____] per share.
The Company hereby confirms its agreements with the Underwriters as
follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters, and shall
be deemed to represent and warrant to the several Underwriters on each Closing
Date (as hereinafter defined), that:
(a) Each of the Company and the subsidiaries of the Company that are
listed on Exhibit 21 of the Company's Annual Report on Form 10-K for the fiscal
year
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* Plus an option to acquire up to 202,500 additional shares of Common Stock
from the Company to cover over-allotments.
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ended December 31, 2000, incorporated by 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 corporate authority
to own, lease and operate its properties and to conduct its business as
presently conducted and as 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 or articles 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 made
available 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 to be sold by the Company hereunder as set
forth in the Prospectus have been duly authorized and validly issued, are fully
paid and nonassessable. The authorized and issued and outstanding capital stock
of the Company conforms 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
by the Company 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 by the Company 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
in or control, directly or indirectly, any other corporation, limited liability
company, partnership, joint venture,
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association, trust or other business organization. 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, except for
pledges pursuant to the Credit Agreement between the Company and ING (U.S.)
Capital LLC, as described in the Prospectus, and all such capital stock has been
duly authorized and validly issued and is fully paid and nonassessable. There
are no 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 corporate 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 further approval or authority of the
shareholders or Board of Directors of the Company will be required for the
issuance and sale of the Shares contemplated herein. 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. 333-54428) with respect
to the Shares, including the related preliminary form of prospectus, has been
carefully prepared by the Company in conformity with the requirements of the Act
and has been filed with the Securities and Exchange Commission (the
"Commission"). The conditions for use of Form S-3, set forth in the General
Instructions thereto, have been satisfied. Such registration statement, as
finally amended and revised at the time such registration statement was or is
declared effective by the Commission (including the information contained in the
form of final
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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 statement if the
registration statement has 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 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.
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(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 or 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.
(h) KPMG LLP, which has expressed its opinion with respect to the
consolidated 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 (except as otherwise noted therein) and all adjustments necessary for a
fair presentation of results for such periods have been made. The Company had an
outstanding capitalization as set forth in the Registration Statement under the
heading "Capitalization" in the Prospectus as of the date indicated therein, and
there has been no material change thereto since such date except as disclosed in
the Prospectus. 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
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jurisdiction having jurisdiction over the Company or such Subsidiary; or (iv)
any provision of any agreement, lease, franchise, license, indenture, permit,
mortgage, deed of trust, evidence of indebtedness or other instrument to which
the Company 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. 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. 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 employment practices) heretofore or currently in effect, except
in the cases of clauses (ii), (iii) or (iv) above, as otherwise set forth in the
Prospectus.
(k) There are no legal or governmental proceedings or investigations
pending or, to the knowledge of the Company, 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, wastes or contaminants or relating to the protection or restoration
of the environment, the protection of human health and safety or human exposure
to hazardous or toxic substances, wastes or contaminants (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.
(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 or as an exhibit to any document incorporated
by reference into the Registration Statement, which has not been described or
filed as required. All such contracts or agreements to which the Company or any
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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, and neither
the Company or any Subsidiary nor, to the Company's knowledge, any other party
is in material breach or default under any such contract or agreement.
(m) The Company or a Subsidiary has good and marketable title in fee
simple to all real property and good and marketable title to all other 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.
(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.
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(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) Except as described in the Registration Statement or the Prospectus,
no labor dispute with the employees of the Company or any Subsidiary exists or,
to the knowledge of the Company, is imminent, and neither the Company nor any
Subsidiary is a party to any collective bargaining agreement and, to the
knowledge of the Company, no union organizational attempts have occurred or are
pending. There has been no change in the relationship of the Company or any
Subsidiary with any of its principal suppliers, manufacturers, contractors or
customers resulting in or that could result in a Material Adverse Effect. The
Company is not aware of any existing, threatened or imminent labor dispute by
the employees of any of its principal suppliers, manufacturers, contractors or
customers resulting in or that could result in a Material Adverse Effect. Except
as described in the Prospectus, no employee of the Company has been granted the
right to continued employment by the Company or to any other material
compensation following termination of employment with the Company.
(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
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.
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(v) Except for the Company's [name each group health, life, disability or
other welfare plan] and its [name any contributory or noncontributory defined
contribution retirement plan and defined benefit retirement plans]
(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, or any person who owns, of record or beneficially,
any outstanding securities issued by the Company is: (i) an officer, director or
partner of any brokerage firm, broker or dealer that is a member of the NASD
("NASD Member"); or (ii) directly or indirectly, a "person associated with" an
NASD member or an "affiliate" of an NASD member, as such terms are used in the
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.
(y) The Common Stock has been registered pursuant to section 12(b) of the
Exchange Act. The Company has prepared and filed with the Commission a
registration statement for the Common Stock pursuant to section 12(b) of the
Exchange Act. Such registration statement either has been declared effective by
the Commission under the Exchange Act. The Common Stock is authorized for
listing on the New York Stock Exchange, and the Shares will be authorized for
listing on the New York Stock Exchange, subject only to official notice of
issuance.
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(z) 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.
(aa) The Company has obtained for the benefit of the Underwriters the
agreement, enforceable by Xxxxxx X. Xxxxx & Co. Incorporated ("Baird"), of each
of the officers and directors of the Company, and each of the shareholders of
the Company who owns more than 1% of the outstanding shares of Common Stock,
that for a period of 180 days after the date of the Prospectus, such persons
will not, without the prior written consent of Baird, directly or indirectly,
offer, sell, transfer the economic risk of ownership in, make any short sale,
pledge or otherwise dispose of, any: (i) shares of Common Stock; (ii) rights to
purchase shares of Common Stock; or (iii) securities that are convertible into
or exchangeable or exercisable for shares of Common Stock.
A certificate signed by any officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby. A certificate delivered by the Company to its counsel for
purposes of enabling such counsel to render the opinion referred to in section
8(d) will also be furnished to the Representatives and counsel for the
Underwriters and shall be deemed to be additional representations and warranties
to the Underwriters by the Company as to the matters covered thereby.
SECTION 3. REPRESENTATION OF UNDERWRITERS. The Representatives will act as
the representatives for the several Underwriters in connection with the public
offering of the Shares, and any action under or in respect of this Agreement
taken by the Representatives will be binding upon all of the Underwriters.
SECTION 4. INFORMATION FURNISHED BY THE UNDERWRITERS. The information set
forth in the table of Underwriters and in paragraphs five, eleven and twelve
under the caption "Underwriting" in the Prospectus constitute all of the
information furnished to the Company by and on behalf of the Underwriters for
use in connection with the preparation of the Registration Statement and the
Prospectus, as such information is referred to in this Agreement.
SECTION 5. PURCHASE, SALE AND DELIVERY OF SHARES.
(a) On the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Underwriters identified in Schedule I annexed
hereto 1,350,000 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
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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 the Company as the number of shares set forth opposite
the name of such Underwriter in Schedule I annexed hereto bears to the total
number of Firm Shares to be purchased by all of the Underwriters under this
Agreement.
(b) On the First Closing Date (as hereinafter defined), the Company will
deliver to the Representatives, at the offices of Xxxxxx X. Xxxxx & Co.
Incorporated, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or through
the facilities of The Depository Trust Company, for the accounts of the several
Underwriters, certificates representing the Firm Shares to be sold by them
against payment in Milwaukee, Wisconsin of the purchase price therefor by
certified or official bank check or checks in New York Clearing House (next day)
funds payable to the order of the Company with respect to the Firm Shares being
sold by the Company. As referred to in this Agreement, the "First Closing Date"
shall be on the third full business day after the date of the Prospectus, at
9:00 a.m., Milwaukee, Wisconsin time, or at such other date or time not later
than ten full business days after the date of the Prospectus as the
Representatives and the Company may agree. The certificates for the Firm Shares
to be so delivered will be in denominations and registered in such names as the
Representatives request by written notice to the Company prior to the First
Closing Date, and such certificates will be made available for checking and
packaging at 9:00 a.m., Milwaukee, Wisconsin time on the first full business day
preceding the First Closing Date at a location to be designated by the
Representatives.
(c) In addition, on the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions herein set
forth, the Company hereby agrees to issue and 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 202,500 Optional
Shares from the Company 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 in whole or in part at any time (but not more than once) upon
written notice by the Representatives to the Company within thirty days after
the date of the Prospectus setting forth the aggregate number of Optional Shares
to be purchased by the Underwriters and sold by the Company, the names and
denominations in which the certificates for such shares are to be registered and
the date and place at which such certificates will be delivered. Such date of
delivery (the "Second Closing Date") shall be determined by the Representatives,
provided that the Second Closing Date, which may be the same as the First
Closing Date, shall not be earlier than the First Closing Date and, if after the
First Closing Date, shall not be earlier than three nor later than ten full
business days after delivery of such notice to exercise. The number of Optional
Shares to be sold by the Company 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 number of Firm Shares
to be sold by the Company under this Agreement bears to the total number of Firm
Shares. Certificates for the Optional Shares will be made available for checking
and packaging at 9:00 a.m.,
11
Milwaukee, Wisconsin time, on the first full business day preceding the Second
Closing Date at a location to be designated by the Representatives. The manner
of payment for and delivery of (including the denominations of and the names in
which certificates are to be registered) the Optional Shares shall be the same
as for the Firm Shares.
(d) The Representatives have advised the Company that each Underwriter has
authorized the Representatives to accept delivery of the Shares and to make
payment therefor. It is understood that the Representatives, individually and
not as representatives of the Underwriters, may (but shall not be obligated to)
make payment for any Shares to be purchased by any Underwriter whose funds shall
not have been received by the Representatives by the First Closing Date or the
Second Closing Date, as the case may be, for the account of such Underwriter,
but any such payment shall not relieve such Underwriter from any obligation
under this Agreement. As referred to in this Agreement, "Closing Date" shall
mean either the First Closing Date or the Second Closing Date.
SECTION 6. FURTHER AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters that:
(a) If the effective time of the Registration Statement is not prior to
the execution and delivery of this Agreement, the Company will use its best
efforts to cause the Registration Statement to become effective at the earliest
possible time and, upon notification from the Commission that the Registration
Statement has become effective, will so advise the Representatives and counsel
to the Underwriters promptly. If the effective time of the Registration
Statement is prior to the execution and delivery of this Agreement and any
information shall have been omitted therefrom in reliance upon Rule 430A, the
Company, at the earliest possible time, will furnish the Representatives with a
copy of the Prospectus to be filed by the Company with the Commission to comply
with Rule 424(b) and Rule 430A under the Act and, if the Representatives do not
object to the contents thereof, will comply with such Rules. Upon compliance
with such Rules, the Company will so advise the Representatives promptly. The
Company will advise the Representatives and counsel to the Underwriters promptly
of the issuance by the Commission or any state securities commission of any stop
order suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, or of any notification of the
suspension of qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceedings for that purpose, and will also
advise the Representatives and counsel to the Underwriters promptly of any
request of the Commission for amendment or supplement of the Registration
Statement, of any Preliminary Prospectus or of the Prospectus, or for additional
information, and the Company will not file any amendment or supplement to the
Registration Statement (either before or after it becomes effective), to any
Preliminary Prospectus or to the Prospectus (including a prospectus filed
pursuant to Rule 424(b)) 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 objects to such filing.
12
(b) The Company will not file any amendment to the Registration Statement
or supplement to the Prospectus of which the Representatives shall not
previously have been advised and furnished with a copy (with a reasonable
opportunity to review such amendment or supplement) or to which the
Representatives shall have objected to in writing.
(c) 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 thereof and will promptly prepare and file with the
Commission, at its expense, an amendment to the Registration Statement or file
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.
(d) 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.
(e) 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.
(f) 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.
(g) 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
13
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.
(h) 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.
(i) 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 designates, 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.
(j) 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.
(k) The Company shall take all necessary or appropriate action within its
power to maintain the authorization for trading of the Common Stock on the New
York Stock Exchange, or take such action to authorize the Common Stock for
listing on the Nasdaq National Market or the American Stock Exchange, for a
period of at least thirty-six months after the date of the Prospectus.
(l) The Company shall not, for a period of 180 days after the date of the
Prospectus, without the prior written consent of Baird, directly or indirectly,
offer, sell or otherwise dispose of, contract to sell or otherwise dispose of,
or cause or in any way permit to be sold or otherwise disposed of, any (i)
shares of Common Stock; (ii) rights to purchase shares
14
of Common Stock; or (iii) securities that are convertible into or exchangeable
or exercisable for shares of Common Stock, except that the Company may (A) grant
options or other rights to purchase shares of Common Stock pursuant to the
Company's 1999 Stock Option and Incentive Plan, a copy of which is filed or
incorporated by reference as an exhibit to Amendment No. 2 to the Company's
Registration Statement on Form 10 filed with the Commission on October 6,
1999, provided that none of such options or rights shall be exercisable during
such 180-day period, (B) issue shares of Common Stock pursuant to outstanding
options or other rights to purchase shares of Common Stock outstanding as of the
date of this Agreement, or (C) issue and sell the Shares to be sold by the
Company pursuant to this Agreement.
(m) The Company will maintain a transfer agent and, if required by law or
the rules of the New York Stock Exchange 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.
(n) If at any time when a prospectus relating to the Shares is required to
be delivered under the Act, any rumor, publication or event relating to of
affecting the Company shall occur as a result of which, in the opinion of Baird,
the market price of the Common Stock has been or is likely to be materially
affected (regardless of whether such rumor, publication or event necessitates a
supplement to the Prospectus), the Company will, after written notice from Baird
advising the Company of any of the matters set forth above, promptly consult
with Baird concerning the advisability and substance of, and, if the Company and
Baird determine that it is appropriate, disseminate, a press release or other
public statement responding to or commenting on, such rumor, publication or
event.
(o) If the sale to the Underwriters of the Shares is not consummated for
any reason other than termination of this Agreement pursuant to section 11
hereof, without limiting any other rights the Underwriters may have, the Company
agrees to reimburse the Underwriters upon demand for all out-of- pocket expenses
(including, without limitation, 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 up to a maximum of $150,000,
and the provisions of sections 7 and 10 hereof shall at all times be effective
and apply.
(p) The Company will comply or cause to be complied with the conditions to
the obligations of the Underwriters in section 8 hereof.
SECTION 7. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective, or
if this Agreement is terminated for any reason, the Company will pay the costs,
fees and expenses incurred in connection with the public offering of the Shares.
Such costs, fees and expenses to be paid by the Company include, without
limitation:
(a) All costs, fees and expenses (excluding the expenses incurred by the
Underwriters and the legal fees and disbursements of counsel for the
Underwriters, but including such fees and disbursements described in subsection
(b) of this section 7) incurred in connection
15
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 listing of the Shares on the New York Stock Exchange; the fees
and expenses of the Company's counsel, accountants, transfer agent and
registrar; the costs and expenses incurred in connection with the preparation,
printing, shipping and delivery of the Registration Statement, each Preliminary
Prospectus and the Prospectus (including all exhibits and financial statements)
and all agreements and supplements provided for herein, this Agreement and the
Preliminary and Supplemental Blue Sky Memoranda, including, without limitation,
shipping expenses via overnight delivery and/or courier service to comply with
applicable prospectus delivery requirements; and the costs and expenses
associated with the production of materials related to, and travel expenses
incurred by the management of the Company in connection with, the various
meetings to be held between the Company's management and prospective investors.
(b) All registration fees and expenses, including 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.
SECTION 8. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters under this Agreement shall be subject to
the accuracy of the representations and warranties on the part of the Company
herein set forth as of the date hereof and as of each Closing Date, to the
accuracy of the statements of the Company's officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following additional conditions, unless waived in writing
by the Representatives:
(a) The Registration Statement shall have been declared effective by the
Commission prior to the date of this Agreement, or such later time as shall have
been consented to by the Representatives, which consent shall be deemed to have
been given if the Registration Statement shall have been declared effective on
or before the date and time requested in the acceleration request submitted on
behalf of the Representatives pursuant to Rule 461 under the Act; all filings
required by Rules 424(b) and 430A under the Act shall have been timely made; no
stop order suspending the effectiveness of the Registration Statement shall have
been issued by the Commission or any state securities commission nor, to the
knowledge of the Company, shall any proceedings for that purpose have been
initiated or threatened; and any request of the Commission or any state
securities commission for inclusion of additional information in the
Registration Statement, or otherwise, shall have been complied with to the
satisfaction of the Representatives.
(b) Since the dates as of which information is given in the Registration
Statement:
16
(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 Xxxxxxx Procter
LLP, counsel for the Company, addressed to the Representatives, as the
representatives of the Underwriters, and dated the First Closing Date or the
Second Closing Date, as the case may be, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation and in good standing under the laws of its jurisdiction of
incorporation, with full corporate power and corporate 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
29,000,000 shares of Common Stock, par value $.01 per share, and 1,000,000
shares of Preferred Stock, par value $.01 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;
17
(iv) Except for the Subsidiaries, the Company has no subsidiaries,
and the Company does not own any equity interest in or control, directly or
indirectly, any other corporation, limited liability company, partnership, joint
venture, association, trust or other business organization except as described
in the Prospectus and the Registration Statement; each 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
corporate 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 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
preemeptive, 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 omits 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 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
18
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 corporate authority
to enter into and perform this Agreement; the performance of the Company's
obligations hereunder and the consummation of the transactions described herein
have been duly authorized by the Company by all necessary corporate action and
this Agreement has been duly executed and delivered by and on behalf of the
Company, and is a legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except that rights to
indemnity or contribution may be limited by applicable law and except as
enforceability of this Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by equitable principles limiting the right to specific
performance or other equitable relief; no consent, approval, authorization or
other order or decree of any court, regulatory or governmental body, arbitrator,
administrative agency or other instrumentality of the United States or other
country or jurisdiction having jurisdiction over the Company is required for the
execution and delivery of this Agreement or the consummation of the transactions
contemplated by this Agreement (except for compliance with the Act, the Exchange
Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements
by the NASD);
(viii) The execution, delivery and performance of this Agreement by
the Company will not: (A) violate any provisions of the 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 as an exhibit to any document that is incorporated by
reference into the Registration Statement; or (C) violate any statute,
ordinance, order, rule, decree or regulation of any court, regulatory or
governmental body, arbitrator, administrative agency or other instrumentality of
the United States or other country or jurisdiction having jurisdiction over the
Company 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;
19
(x) The Common Stock is authorized for trading on the New York Stock
Exchange 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 or as an exhibit to any
document that is incorporated by reference into 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 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 copies of all such
certificates shall be furnished to the Representatives and for the Underwriters
on or before each Closing Date.
(e) The Representatives shall have received an opinion of Reinhart,
Boerner, Van Deuren, Xxxxxx & Xxxxxxxxxx, s.c., 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.
20
(f) The Representatives shall have received on each Closing Date, a
certificate of the Chairman, President and Chief Executive Officer, and the Vice
President, Treasurer and Chief Financial Officer, of the Company, to the effect
that:
(i) The representations and warranties of the Company set forth in
section 2 hereof are true and correct as of the date of this Agreement and as of
the date of such certificate, and the Company has complied with all the
agreements and satisfied all the conditions to be performed or satisfied by it
at or prior to the date of such certificate;
(ii) The Commission has not issued an order preventing or suspending
the use of the Prospectus or any Preliminary Prospectus or any amendment or
supplement thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and to the knowledge of the respective
signatories, no proceedings for that purpose have been initiated or are pending
or contemplated under the Act or under the Blue Sky Laws of any jurisdiction;
(iii) Each of the respective signatories has carefully examined the
Registration Statement and the Prospectus, and any amendment or supplement
thereto, 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 omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and since the date on which the Registration Statement was initially filed, no
event has occurred that was required to be set forth in an amended or
supplemented prospectus or in an amendment to the Registration Statement that
has not been so set forth, 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, 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.
21
The delivery of the certificate provided for in this subsection (f) shall
be and constitute a representation and warranty of the Company as to the facts
required in the immediately foregoing clauses (i), (ii), (iii) and (iv) to be
set forth in said certificate.
(g) At the time this Agreement is executed and also on each Closing Date,
there shall be delivered to the Representatives a letter addressed to the
Representatives, as the representatives of the Underwriters, from KPMG LLP, the
Company's independent accountants, the first letter to be dated the date of this
Agreement, the second letter to be dated the First Closing Date and the third
letter (if applicable) to be dated the Second Closing Date, which shall be in
form and substance satisfactory to the Representatives and shall contain
information as of a date within five days of the date of such letter. There
shall not have been any change or decrease set forth in any of the letters
referred to in this subsection (g) which makes it impracticable or inadvisable
in the judgment of the Representatives to proceed with the public offering or
purchase of the Shares as contemplated hereby.
(h) The Shares shall have been qualified or registered for sale under the
Blue Sky Laws of such jurisdictions as shall have been specified by the
Representatives, the underwriting terms and arrangements for the offering shall
have been cleared by the NASD, the Shares shall have been authorized for listing
on the New York Stock Exchange and the Common Stock shall remain registered
under the Exchange Act.
(i) Such further certificates and documents as the Representatives may
reasonably request (including certificates of officers of the Company).
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory
to the Representatives and to Reinhart, Boerner, Van Deuren, Xxxxxx &
Rieselbach, s.c., counsel for the Underwriters. The Company shall furnish the
Representatives with such manually signed or conformed copies of such opinions,
certificates, letters and documents as the Representatives may reasonably
request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at either Closing Date is not so satisfied, this Agreement
at the election of the Representatives will terminate upon notification to the
Company without liability on the part of any Underwriter, including the
Representatives, the Company except for the provisions of section 6(o) hereof,
the expenses to be paid by the Company pursuant to section 7 hereof and except
to the extent provided in section 10 hereof.
SECTION 9. MAINTAIN EFFECTIVENESS OF REGISTRATION STATEMENT. The Company
will use its best efforts to prevent the issuance of any stop order suspending
the effectiveness of the Registration Statement, and, if such stop order is
issued, to obtain as soon as possible the lifting thereof.
22
SECTION 10. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person (including each director, member, partner or officer thereof) who
controls any Underwriter within the meaning of the Act or the Exchange Act, from
and against any losses, claims, damages, expenses, liabilities or actions in
respect thereof ("Claims"), joint or several, to which such Underwriter or each
such controlling person may become subject under the Act, the Exchange Act, Blue
Sky Laws or other federal or state statutory laws or regulations, at common law
or otherwise (including payments made in settlement of any litigation), insofar
as such Claims arise out of or are based upon any breach of any representation,
warranty or covenant made by the Company in this Agreement, or any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or in any application filed under any Blue Sky
Law or other document executed by the Company for that purpose or based upon
written information furnished by the Company and filed in any state or other
jurisdiction to qualify any or all of the Shares under the securities laws
thereof (any such document, application or information being hereinafter called
a "Blue Sky Application") or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Company agrees
to reimburse each Underwriter and each such controlling person for any legal
fees or other expenses incurred by such Underwriter or any such controlling
person in connection with investigating or defending any such Claim; provided,
however, that the Company will not be liable in any such case to the extent that
any such Claim arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or supplement thereto or
in any Blue Sky Application in reliance upon and in conformity with the written
information furnished to the Company pursuant to section 4 of this Agreement.
The indemnification obligations of the Company as provided above are in addition
to and in no way limit any liabilities the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, 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 who controls the Company
within the meaning of the Act or the Exchange Act, from and against any Claim to
which the Company, or any such director, officer, controlling person may become
subject under the Act, the Exchange Act, Blue Sky Laws or other federal or state
statutory laws or regulations, at common law or otherwise (including payments
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,
23
or in any Blue Sky Application, in reliance solely upon and in conformity with
the written information furnished by the Representatives to the Company pursuant
to section 4 of this Agreement. Each Underwriter will severally reimburse any
legal fees or other expenses incurred by the Company, or any such director,
officer or controlling person in connection with investigating or defending any
such Claim, and from any and all Claims solely resulting from failure of an
Underwriter to deliver a Prospectus, if the person asserting such Claim
purchased Shares from such Underwriter and a copy of the Prospectus (as then
amended if the Company shall have furnished any amendments thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended) would have
cured the defect giving rise to such Claim. The indemnification obligations of
each Underwriter as provided above are in addition to any liabilities any such
Underwriter may otherwise have. Notwithstanding the provisions of this section,
no Underwriter shall be required to indemnify or reimburse the Company, or any
officer, director or controlling person in an aggregate amount in excess of the
total price at which the Shares purchased by any such Underwriter hereunder were
offered to the public, less the amount of any damages such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this section 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.
(d) Upon receipt of notice from the indemnifying party to such indemnified
party of the indemnifying party's election to assume the defense of such action
and upon approval by the indemnified party of counsel selected by the
indemnifying party, the indemnifying party will not be liable to such
indemnified party under this section for any legal fees or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless:
24
(i) the indemnified party shall have employed separate counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the last sentence of subsection (c) of this section;
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after the indemnified party's notice to the
indemnifying party of commencement of the action; or
(iii) the indemnifying party has authorized the employment of
counsel at the expense of the indemnifying party.
(e) If the indemnification provided for in this section is unavailable to
an indemnified party under subsection (a) or (b) hereof in respect of any Claim
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall, subject to the limitations hereinafter set forth,
contribute to the amount paid or payable by such indemnified party as a result
of such Claim:
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of the
Shares; or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also the relative fault
of the Company and the Underwriters in connection with the statements or
omissions which resulted in such Claim, as well as any other relevant equitable
considerations.
The relative benefits received by each of the Company and the Underwriters
shall be deemed to be in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the amount of
the underwriting discounts and commissions per share appearing on the cover page
of the Prospectus bears to the public offering price per share appearing
thereon, and the Company (including its officers and directors and controlling
persons), is responsible for the remaining portion. The relative fault of the
Company and the Underwriters shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
Claims referred to above shall be deemed to include, subject to the limitations
set forth in subsections (c) and (d) of this section, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
(f) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this section were determined by pro rata
or per capita allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method or allocation which does not take into
account the equitable considerations referred to in subsection (c) of this
section. Notwithstanding the other provisions of this section, no
25
Underwriter shall be required to contribute any amount that is greater than the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this section are several in proportion to their
respective underwriting commitments and not joint.
SECTION 11. DEFAULT OF UNDERWRITERS. It shall be a condition to the
obligations of each Underwriter to purchase the Shares in the manner as
described herein, that, except as hereinafter provided in this section, each of
the Underwriters shall purchase and pay for all the Shares agreed to be
purchased by such Underwriter hereunder upon tender to the Representatives of
all such Shares in accordance with the terms hereof. If any Underwriter or
Underwriters default in their obligations to purchase Shares hereunder on either
the First Closing Date or the Second Closing Date and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed ten percent (10%) of the total number of Shares which
the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements for the purchase of such Shares by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date the nondefaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Shares which such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of Shares with respect to which such default or defaults occur
is greater than ten percent (10%) of the total number of Shares which the
Underwriters are obligated to purchase on such Closing Date, and arrangements
satisfactory to the Representatives for the purchase of such Shares by other
persons are not made within thirty-six hours after such default, this Agreement
will terminate without liability on the part of any nondefaulting Underwriter or
the Company except for the expenses to be paid by the Company pursuant to
section 7 hereof and except to the extent provided in section 10 hereof.
In the event that Shares to which a default relates are to be purchased by
the nondefaulting Underwriters or by another party or parties, the
Representatives shall have the right to postpone the First Closing Date or the
Second Closing Date, as the case may be, for not more than seven business days
in order that the necessary changes in the Registration Statement, Prospectus
and any other documents, as well as any other arrangements, may be effected. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
SECTION 12. EFFECTIVE DATE. This Agreement shall become effective upon the
execution and delivery of this Agreement by the parties hereto. Such execution
and delivery shall include an executed copy of this Agreement sent by
telecopier, facsimile transmission or other means of transmitting written
documents.
26
SECTION 13. TERMINATION. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof, this Agreement may be
terminated by the Representatives prior to or on the First Closing Date and the
over-allotment option from the Company referred to in section 5 hereof, if
exercised, may be cancelled by the Representatives at any time prior to or on
the Second Closing Date, if in the judgment of the Representatives, payment for
and delivery of the Shares is rendered impracticable or inadvisable because:
(a) additional governmental restrictions, not in force and effect on the
date hereof, shall have been imposed upon trading in securities generally or
minimum or maximum prices shall have been generally established on the New York
Stock Exchange or the American Stock Exchange, or trading in securities
generally shall have been suspended or materially limited on either such
exchange or on The Nasdaq Stock Market, or a material adverse decline in value
of securities generally 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, Massachusetts 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;
(c) an outbreak or escalation of hostilities or other national or
international calamity or any substantial change in political, financial or
economic conditions shall have occurred or shall have accelerated to such
extent, in the judgment of the Representatives, as to have a material adverse
effect on the financial markets of the United States, or to make it
impracticable or inadvisable to proceed with completion of the sale of and
payment for the Shares as provided in this Agreement.
Any termination pursuant to this section shall be without liability on the
part of any Underwriter to the Company, or on the part of the Company to any
Underwriter, except for expenses to be paid by the Company pursuant to section 7
hereof or reimbursed by the Company pursuant to section 6(o) hereof and except
as to indemnification to the extent provided in section 10 hereof.
SECTION 14. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties, covenants and
other statements of the Company, of its officers or directors, and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of its or their partners, officers,
directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Shares sold hereunder.
SECTION 15. NOTICES. All communications hereunder will be in writing and,
if sent to the Representatives, will be mailed, delivered, telecopied (with
receipt confirmed) or telegraphed and confirmed to Xxxxxx X. Xxxxx & Co.
Incorporated at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: [NAME/TITLE], with a copy to
27
Xxxxx X. Xxxxxx, Esq., Reinhart, Boerner, Van Deuren, Xxxxxx & Rieselbach, s.c.,
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, 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 CIRCOR International, Inc., 00
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxx, Xx., Chairman, President and Chief Executive Officer, with a copy to
Xxxxx X. Xxxxx, P.C., Xxxxxxx Procter LLP, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
SECTION 16. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors, personal
representatives and assigns, and to the benefit of the officers and directors
and controlling persons referred to in section 10 hereof and no other person
will have any right or obligation hereunder. The term "successors" shall not
include any purchaser of the Shares as such from any of the Underwriters merely
by reason of such purchase.
SECTION 17. PARTIAL UNENFORCEABILITY. If any section, paragraph, clause or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph clause or provision hereof.
SECTION 18. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Wisconsin
without reference to conflict of law principles thereunder. This Agreement may
be signed in various counterparts which together shall constitute one and the
same instrument, and shall be effective when at least one counterpart hereof
shall have been executed by or on behalf of each party hereto. If the foregoing
is in accordance with your understanding of our agreement, kindly sign and
return to us the enclosed duplicates hereof, whereupon it will become a binding
agreement among the Company and the several Underwriters, including the
Representatives, all in accordance with its terms.
Very truly yours,
CIRCOR INTERNATIONAL, INC.
By:
-----------------------------------
Xxxxx X. Xxxxx, Xx., Chairman,
President and Chief Executive Officer
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
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XXXXXX X. XXXXX & CO. INCORPORATED
ING BARINGS LLC
By: XXXXXX X. XXXXX & CO. INCORPORATED
Acting as Representative of the several
Underwriters (including itself) identified
in Schedule I annexed hereto.
By:
-------------------------------
Authorized Representative
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CIRCOR INTERNATIONAL, INC.
SCHEDULE I
NAME OF UNDERWRITER Number of Firm
------------------- Shares to
be Purchased
--------------
Xxxxxx X. Xxxxx & Co. Incorporated.................
ING Barings LLC....................................
30
