EXHIBIT 1.2
5,750,000 Shares
QAD Inc.
Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
June ___, 1997
XXXXX XXXXXX INC.
XXXXX & COMPANY
XXXXXXXXX, XXXXXXXX & COMPANY LLC
As Lead Managers for the Several Managers
c/o XXXXX XXXXXX INC.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
QAD Inc., a Delaware corporation (the "Company"), proposes to issue
and sell an aggregate 1,150,000 shares of its common stock, par value $0.001 per
share (the "Firm Shares") to the several Underwriters named in Schedule I hereto
(the "Managers") for whom Xxxxx Xxxxxx Inc., Xxxxx & Company and Xxxxxxxxx,
Xxxxxxxx & Company LLC are acting as representatives (the "Lead Managers"). In
addition, solely for the purpose of covering over-allotments, the Company
proposes to sell to the Managers, upon the terms and conditions set forth in
Section 2 hereof, up to an additional 172,500 shares (the "Additional Shares")
of the Company's common stock. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares." The Company's common
stock, par value $0.001 per share, including the Shares and the U.S. Shares (as
defined herein), is hereinafter referred to as the "Common Stock."
It is understood that the Company is concurrently entering into a U.S.
Underwriting Agreement, dated the date hereof (the "U.S. Underwriting
Agreement"), providing for the sale by the Company of 4,600,000 shares of the
Common Stock (the "Firm U.S. Shares") (plus an option granted by the Company to
purchase up to an additional 690,000 shares of Common Stock (the "Additional
U.S.
Shares") solely for the purpose of covering over-allotments) through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters"), for whom Xxxxx Xxxxxx Inc., Xxxxx & Company and Xxxxxxxxx
Xxxxxxxx & Company LLC are acting as representatives (the "Representatives").
All shares of Common Stock proposed to be offered to U.S. Underwriters pursuant
to the U.S. Underwriting Agreement, including the Firm U.S. Shares and the
Additional U.S. Shares, are herein called the "U.S. Shares"; the U.S. Shares and
the Shares, collectively, are herein called the "Underwritten Shares."
The Company also understands that the Lead Managers and the
Representatives have entered into an agreement (the "Agreement Between U.S.
Underwriters and Managers") contemplating the coordination of certain
transactions between the Managers and the U.S. Underwriters and that, pursuant
thereto and subject to the conditions set forth therein, the Managers may
purchase from U.S. Underwriters a portion of the U.S. Shares or sell to the
Managers a portion of the Shares. The Company understands that any such
purchases and sales between the Managers and the U.S. Underwriters shall be
governed by the Agreement Between U.S. Underwriters and Managers and shall not
be governed by the terms of this Agreement or the U.S. Underwriting Agreement.
The Company wishes to confirm as follows its agreement with you and
the other several Managers on whose behalf you are acting, in connection with
the several purchases of the Shares by the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1, including prospectuses subject to
completion, relating to the Underwritten Shares. The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective, and as thereafter amended by post-effective amendment. The term
"Prospectuses" as used in this Agreement means the prospectuses in the forms
included in the Registration Statement, or, if the prospectuses included in the
Registration Statement omit information in reliance on Rule 430A under the Act
and such information is included in prospectuses filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectuses" as used in this
Agreement means the prospectuses in the forms included in the Registration
Statement as supplemented by the addition of the Rule 430A information contained
in the prospectuses filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectuses" as used in this Agreement means the prospectuses
subject to completion in the forms included in the Registration Statement at the
time of the initial filing of the Registration Statement with the Commission,
and as such prospectuses shall have been amended from time to time prior to the
date of the Prospectuses.
It is understood that two forms of Prepricing Prospectus and two forms
of Prospectus are to be used in connection with the offering and sale of the
Underwritten Shares: a Prepricing Prospectus and a Prospectus relating to the
U.S. Shares that are to be offered and sold in the United States (as defined
herein) or Canada (as defined herein) or to U.S. or Canadian Persons (the "U.S.
Prepricing Prospectus" and the "U.S. Prospectus," respectively), and a
Prepricing Prospectus and a Prospectus relating to the Shares which are to be
offered and sold outside the United States or Canada to persons other than U.S.
or Canadian
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Persons (the "International Prepricing Prospectus" and the "International
Prospectus," respectively). The U.S. Prospectus and the International
Prospectus are herein collectively called the "Prospectuses," and the U.S.
Prepricing Prospectus and the International Prepricing Prospectus are herein
called the "Prepricing Prospectuses." For purposes of this Agreement: "Rules
and Regulations" means the rules and regulations adopted by the Commission under
either the Act or the Securities Exchange Act of 1934, as amended (the "Exchange
Act") as applicable; "U.S. or Canadian Person" means any resident or national of
the United States or Canada, any corporation, partnership or other entity
created or organized in or under the laws of the United States or Canada or any
estate or trust the income of which is subject to United States or Canadian
income taxation regardless of the source of its income (other than the foreign
branch of any U.S. or Canadian Person), and includes any United States or
Canadian branch of a person other than a U.S. or Canadian Person; "United
States" means the United States of America (including the states thereof and the
District of Columbia) and its territories, its possessions and other areas
subject to its jurisdiction; and "Canada" means Canada and its territories, its
possessions and other areas subject to its jurisdiction.
2. AGREEMENTS TO SELL AND PURCHASE. Upon the basis of the
representations, warranties and agreements of the Company contained herein,
and to such adjustments as you may determine to avoid fractional shares, the
Company hereby agrees to issue and sell to each Manager and, each Manager
agrees, severally and not jointly, to purchase from the Company, at a
purchase price of $_____ per share (the "purchase price per share"), the
number of Firm Shares that bears the same proportion to the aggregate number
of Firm Shares to be issued and sold by the Company as the number of Firm
Shares set forth opposite the name of such Manager in Schedule I hereto (or
such number of Firm Shares increased as set forth in Section 10 hereof) bears
to the aggregate number of Firm Shares to be sold by the Company.
The Company also agrees, subject to all the terms and conditions set
forth herein, to sell to the Managers, and, upon the basis of the
representations, warranties and agreements of the Company herein contained
and subject to all the terms and conditions set forth herein, the Managers
shall have the right to purchase from the Company at the purchase price per
share, pursuant to an option (the "over-allotment option") which may be
exercised at any time and from time to time prior to 5:00 p.m., New York City
time, on the 30th day after the date of the International Prospectus (or, if
such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for
trading), up to an aggregate of 172,500 Additional Shares from the Company.
Additional shares may be purchased only for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. Upon
any exercise of the over-allotment option, each Manager, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments as you may determine in order to avoid
fractional shares) that bears the same proportion to the number of Additional
Shares to be sold by the Company set forth opposite the name of such Manager
in Schedule I hereto (or such number of Firm Shares increased as set forth in
Section 10 hereof) bears to the aggregate number of Firm Shares to be sold by
the Company.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by you that
the Managers propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the International Prospectus.
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4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Delivery to the Managers
of and payment for the Firm Shares shall be made at the office of Xxxxx Xxxxxx
Inc., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. 00000, at 10:00 A.M., New York City
time, on ________, 1997 (the "Closing Date"). The place of closing for the Firm
Shares and the Closing Date may be varied by agreement among you and the
Company.
Delivery to the Managers of and payment for any Additional Shares to be
purchased by the Managers shall be made at the aforementioned office of Xxxxx
Xxxxxx Inc. at such time on such date (the "Option Closing Date"), which may be
the same as the Closing Date but shall in no event be earlier than the Closing
Date nor earlier than two nor later than ten business days after the giving of
the notice hereinafter referred to, as shall be specified in a written notice
from you on behalf of the Managers to the Company of the Managers' determination
to purchase a number, specified in such notice, of Additional Shares. The place
of closing for any Additional Shares and the Option Closing Date for such Shares
may be varied by agreement among you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such
denominations as you shall request by written notice, it being understood
that a facsimile transmission shall be deemed written notice, prior to 9:30
A.M., New York City time, on the second business day preceding the Closing
Date or any Option Closing Date, as the case may be. Such certificates shall
be made available to you in New York City for inspection and packaging not
later than 9:30 A.M., New York City time, on the business day next preceding
the Closing Date or the Option Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, against payment of the purchase
price therefor by certified or official bank check or checks payable in New
York Clearing House (next day) funds to the order of the Company.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Managers as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectuses or the Prospectuses or for additional information; (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction or the initiation of any
proceeding for such purpose; and (iii) within the period of time referred to
in paragraph (f) below, of any change in the Company's condition (financial
or other), business, prospects, properties, net worth or results of
operations, or of the happening of any event, including the filing of any
information, documents or reports pursuant to the Exchange Act, that makes any
statement of a material fact made in the Registration Statement or the
Prospectuses (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectuses (as then amended or supplemented) in order to state a material
fact required by the Act or the regulations thereunder
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to be stated therein or necessary in order to make the statements therein not
misleading, or of the necessity to amend or supplement the Prospectuses (as then
amended or supplemented) to comply with the Act or any other law. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge four signed
copies of the Registration Statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits to
the Registration Statement and will also furnish to you, without charge, such
number of conformed copies of the Registration Statement as originally filed and
of each amendment thereto, but without exhibits, as you may reasonably request.
(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectuses of which
you shall not previously have been advised or to which you shall reasonably
object in writing after being so advised or (ii) so long as, in the written
opinion of counsel for the Managers (a copy of which shall be delivered to
the Company) a prospectus is required to be delivered in connection with
sales by any Manager or dealer, file any information, documents or reports
pursuant to the Exchange Act, without delivering a copy of such information,
documents or reports to you, as Lead Managers for the Managers, prior to or
concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to you, without charge, in such
quantities as you have reasonably requested or may hereafter reasonably
request, copies of each form of the International Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act and
with the securities laws of the jurisdictions in which the Shares are offered
by the several Managers and by dealers, prior to the date of the
International Prospectus, of each International Prepricing Prospectus so
furnished by the Company.
(f) As soon after the execution and delivery of this Agreement
possible and thereafter from time to time for such period as in the written
opinion of counsel for the Managers an International Prospectus is required
by the Act to be delivered in connection with sales by any Manager or dealer,
the Company will expeditiously deliver to each Manager and each dealer,
without charge, as many copies of the International Prospectus (and of any
amendment or supplement thereto) as you may reasonably request. The Company
consents to the use of the International Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act and with the
securities laws of the jurisdictions in which the Shares are offered by the
several Managers and by all dealers to whom Shares may be sold, both in
connection with the offering and sale of the Shares and for such period of
time thereafter as the International Prospectus is required by the Act to be
delivered in connection with sales by any Manager or dealer. If during such
period of time any event shall occur that in the judgment of the Company or
in the written opinion of counsel for the Managers is required to be set
forth in the International Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if
it is necessary to supplement or amend the International Prospectus in order
to comply with the Act or any other law, the Company will forthwith prepare
and, subject to the provisions of paragraph (d) above, file with the
Commission an appropriate supplement or amendment thereto, and will
expeditiously furnish to the Managers and dealers a reasonable number of
copies thereof.
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(g) The Company will cooperate with you and with counsel for the
Managers in connection with the registration or qualification of the Shares
for offering and sale by the several Managers and by dealers under the
securities laws of such jurisdictions as you may reasonably designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided
that in no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out
of the offering or sale of the Shares, in any jurisdiction where it is not
now so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as
soon as reasonably practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section ll(a)
of the Act.
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission or NASDAQ, and (ii) from
time to time such other information concerning the Company as you may
reasonably request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 or Section 11 hereof) or if this
Agreement shall be terminated by the Managers because of any failure or
refusal on the part of the Company to comply, in any material respect, with
the terms or fulfill, in any material respect, any of the conditions of this
Agreement, the Company agrees to reimburse the Lead Managers for all
reasonable out-of-pocket expenses (including reasonable fees and expenses of
counsel for the Managers) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder substantially in accordance with the
description set forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will timely file
the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing.
(m) For a period of 180 days after the date hereof (the "Lock-up
Period"), the Company will not, without the prior written consent of Xxxxx
Xxxxxx Inc., offer, sell, contract to sell or otherwise dispose of any Common
Stock (or any securities convertible into or exercisable or exchangeable for
Common Stock) or grant any options or warrants to purchase Common Stock, except
for sales to the Managers pursuant to this Agreement and the U.S. Underwriters
pursuant to the U.S. Underwriting Agreement, and for options or awards of the
Company's Common Stock granted in accordance with the
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QAD Inc. 1997 Stock Incentive Program.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in the form and substance satisfactory to you, signed by caused each
of its current executive officers and directors and each of its stockholders
previously designated by you.
(o) Except as stated in this Agreement and in the U.S. Underwriting
Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has
not taken, nor will it take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Shares.
(p) The Company will use its best efforts to have the Common Stock
listed, subject to notice of issuance, on the Nasdaq National Market
concurrently with the effectiveness of the registration statement.
(q) The Company will use its best efforts to satisfy on or before the
Closing Date or any Option Closing Date, as the case may be, all conditions to
the Managers' obligations to purchase the Shares.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each Manager that:
(a) Each International Prepricing Prospectus included as part of
the registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied
when so filed in all material respects with the provisions of the Act; except
that this representation and warranty does not apply to statements in or
omissions from such International Prepricing Prospectus (or any amendment or
supplement thereto) made in reliance upon and in conformity with information
relating to any Manager or U.S. Underwriter furnished to the Company in
writing by a Manager through the Lead Managers or by a Manager through the
Lead Managers expressly for use therein. The Commission has not issued any
order preventing or suspending the use of any Prepricing Prospectus.
(b) The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the Prospectuses and any
supplement or amendment thereto when filed with the Commission under Rule
424(b) under the Act, complied or will comply in all material respects with
the provisions of the Act and will not at any such times 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 not misleading;
except that this representation and warranty does not apply to statements in
or omissions from the Registration Statement or the Prospectuses made in
reliance upon and in conformity with information relating to any Manager or
U.S. Underwriter furnished to the Company in writing by or on behalf of a
Manager through the Lead Managers or by a U.S. Underwriter through the
Representatives expressly for use therein.
(c) All the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights; the Shares to be issued and sold
by the Company have been duly authorized and, when issued and delivered to the
Managers against payment therefor in accordance with the terms hereof, will be
validly
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issued, fully paid and nonassessable and free of any preemptive or similar
rights; and the capital stock of the Company conforms to the description thereof
in the Registration Statement and the Prospectuses.
(d) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectuses, and is
duly registered and qualified to conduct its business and is in good standing in
each jurisdiction where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect on the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Company and the Subsidiaries (as hereinafter
defined) taken as a whole (a "Material Adverse Effect").
(e) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed in an exhibit to the Registration Statement. Each
Subsidiary is a corporation duly organized, validly existing and in good
standing in the jurisdiction of its incorporation, with full corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectuses, and
is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or the
conduct of its business requires such registration or qualification, except
where the failure so to register or qualify does not have a Material Adverse
Effect; all the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable, and, except as otherwise disclosed in the Prospectuses, are,
except for Integral Informationstechnik GmbH owned by the Company directly,
or indirectly through one of the other Subsidiaries, free and clear of any
lien, adverse claim, security interest, equity or other encumbrance.
(f) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, against the Company or any of the
Subsidiaries which are materially adverse to the Company and its
Subsidiaries, taken as a whole, or to which the Company or any of the
Subsidiaries, or to which any of their respective properties is subject which
are material to the Company and its Subsidiaries, taken as a whole, that are
required to be described in the Registration Statement or the Prospectuses
but are not described as required, and there are no agreements, contracts,
indentures, leases or other instruments relating to the Company that are
required to be described in the Registration Statement or the Prospectuses or
to be filed as an exhibit to the Registration Statement that are not
described or filed as required by the Act or the Exchange Act. The
descriptions of the terms of any such contracts or documents contained in the
Registration Statement or the Prospectuses are correct in all material
respects.
(g) Neither the Company nor any of the Subsidiaries is in (i)
violation of its certificate or articles of incorporation or by-laws, or
other organizational documents, (ii) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company
or any of the Subsidiaries or of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries (except where any such violation or violations in the aggregate
would not have a Material Adverse Effect), or (iii) in default in any
material respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness
or in any material agreement, indenture, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or
any of their respective properties may be bound, and no condition or state of
facts exists, which with the passage of time or the giving of notice or both,
would constitute such a default (except where any such violation or
violations in the aggregate would not have a Material Adverse Effect).
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(h) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement or the U.S. Underwriting Agreement
by the Company nor the consummation by the Company of the transactions
contemplated hereby and thereby (i) requires any consent, approval,
authorization or other order of or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required for the registration of the Shares
under the Act and compliance with the securities laws of various
jurisdictions, all of which have been or will be effected in accordance with
this Agreement) or conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws, or other organizational documents, of the Company or
any of the Subsidiaries or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any
agreement, indenture, lease or other instrument to which the Company or any
of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or violates or will violate any statute,
law, regulation or filing or judgment, injunction, order or decree applicable
to the Company or any of the Subsidiaries or any of their respective
properties, or will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which
any of them is a party or by which any of them may be bound or to which any
of the property or assets of any of them is subject.
(i) The accountants, KPMG Peat Marwick LLP, who have certified or
shall certify the financial statements filed or to be filed as part of the
Registration Statement or the Prospectuses (or any amendment or supplement
thereto) are independent public accountants as required by the Act.
(j) The financial statements, together with related schedules and
notes forming part of the Registration Statement and the Prospectuses (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations, cash flows and changes in stockholders' equity
of the Company and the Subsidiaries on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth in the Registration
Statement and the Prospectuses (and any amendment or supplement thereto) are
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and its Subsidiaries.
(k) The execution and delivery of, and the performance by the
Company of its obligations under, each of this Agreement and the U.S.
Underwriting Agreement have been duly and validly authorized by the Company,
and each of this Agreement and the U.S. Underwriting Agreement has been duly
executed and delivered by the Company and constitutes the valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except (i) the enforceability hereof or thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, (ii) the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which the proceedings may be brought and (iii)
rights to indemnity and contribution hereunder or thereunder may be limited
by federal or state securities laws or the public policy underlying such laws.
(l) Except as disclosed in the Registration Statement and the
Prospectuses (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectuses (or any amendment or supplement thereto), neither
the
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Company nor any of the Subsidiaries has incurred any liability or obligation,
direct or contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Company and the Subsidiaries,
taken as a whole, and there has not been any change in the capital stock of
the Company, or material increase in the short-term debt or long-term debt,
of the Company or any of the Subsidiaries, or any development having or which
may reasonably be expected to have, a Material Adverse Effect.
(m) Each of the Company and the Subsidiaries has good and marketable
title to all property (real and personal) described in the Prospectuses as being
owned by it, free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Registration Statement and the
Prospectuses or in a document filed as an exhibit to the Registration Statement
and all the property described in the Prospectuses as being held under lease by
each of the Company and the Subsidiaries is held by it under valid, subsisting
and enforceable leases with only such exceptions as in the aggregate are not
materially burdensome and do not interfere in any material respect with the
conduct of the business of the Company and the Subsidiaries, taken as a whole.
(n) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date or the Option Closing Date, if any, and (ii) completion
of the distribution of the Shares, will not distribute any offering material in
connection with the offering and sale of the Shares other than the Registration
Statement, the Prepricing Prospectuses, the Prospectuses or other materials, if
any, permitted by the Act.
(o) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("Permits") as are necessary to own its respective properties and
to conduct its business in the manner described in the Prospectuses, except
where the failure to have any such Permit would not have a Material Adverse
Effect and subject to such qualifications as may be set forth in the
Prospectuses; the Company and each of the Subsidiaries has fulfilled and
performed all its material obligations with respect to such Permits and no
event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment
of the rights of the holder of any such Permit, subject in each case to such
qualification as may be set forth in the Prospectuses; and, except as
described in the Prospectuses, none of such permits contains any restriction
that is materially burdensome to the Company or any of the Subsidiaries.
(p) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of 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 authorization; 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.
(q) To the Company's knowledge, neither the Company nor any of its
Subsidiaries nor any employee or agent of the Company or any Subsidiary has made
any payment of funds of the Company or any Subsidiary or received or retained
any funds in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Prospectuses.
10
(r) The Company and each of the Subsidiaries have filed all
material tax returns required to be filed, which returns are true and correct
in all material respects, and neither the Company nor any Subsidiary is in
default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto.
(s) Except as described in the Prospectuses, no holder of any
security of the Company has any right to require registration of shares of
Common Stock or any other security of the Company because of the filing of the
registration statement or consummation of the transactions contemplated by this
Agreement or the U.S. Underwriting Agreement, or otherwise. No such rights were
exercised nor will be exercised in connection with the sale of the Shares and
for a period of 180 days after the date hereof. Except as described in or
contemplated by the Prospectuses, there are no outstanding options, warrants or
other rights calling for the issuance of, and there are no commitments, plans or
arrangements to issue, any shares of Common Stock of the Company or any security
convertible into or exchangeable or exercisable for Common Stock of the Company.
(t) The Company and the Subsidiaries own or possess all patents,
trademarks, trademark registration, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets
and rights described in the Prospectuses as being owned by them or any of
them or necessary for the conduct of their respective businesses except where
the lack of such ownership or possession would not have a Material Adverse
Effect, and the Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and the
Subsidiaries with respect to the foregoing.
(u) The Company is not and, upon sale of the Shares to be issued
and sold in accordance herewith and upon application of the net proceeds to
the Company from such sale as described in the Prospectuses under the caption
"Use of Proceeds," will not be an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(v) The Company has complied with all provisions of Florida Statutes,
Section 517.075, relating to issuers doing business with Cuba.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless you and each other Manager and each person, if any, who
controls any Manager within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any International Prepricing Prospectus or in the
Registration Statement or the International Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Manager furnished in writing to the
Company by or on behalf of any Manager through you expressly for use in
connection therewith; provided, however, that the indemnification contained in
this paragraph (a) with respect to any International Prepricing Prospectus shall
not inure to the benefit of any Manager (or to the benefit of any person
controlling such Manager) on account of any such loss, claim, damage, liability
or expense arising
11
from the sale of the Shares by such Manager to any person if a copy of the
International Prospectus shall not have been delivered or sent to such person
within the time required by the Act and the regulations thereunder, and the
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact contained in such International Prepricing Prospectus was
corrected in the International Prospectus, provided that the Company has
delivered the International Prospectus to the several Managers in requisite
quantity on a timely basis to permit such delivery or sending.
(b) If any action, suit or proceeding shall be brought against any
Manager or any person controlling any Manager in respect of which indemnity
may be sought against the Company, such Manager or such controlling person
shall promptly notify the parties against whom indemnification is being
sought (the "indemnifying parties"), and such indemnifying parties shall
assume the defense thereof, including the employment of counsel and payment
of all fees and expenses. Such Manager or any such controlling person shall
have the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Manager or such
controlling person unless (i) the indemnifying parties have agreed in writing
to pay such fees and expenses, (ii) the indemnifying parties have failed to
assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both
such Manager or such controlling person and the indemnifying parties and such
Manager or such controlling person shall have been advised by its counsel
that representation of such indemnified party and any indemnifying party by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel
has been proposed) due to actual or potential differing interests between
them (in which case the indemnifying party shall not have the right to assume
the defense of such action, suit or proceeding on behalf of such Manager or
such controlling person). It is understood, however, that the indemnifying
parties shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings
in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Managers and controlling persons not having actual or potential
differing interests with you or among themselves, which firm shall be
designated in writing by Xxxxx Xxxxxx Inc., and that all such fees and
expenses shall be reimbursed as they are incurred. The indemnifying parties
shall not be liable for any settlement of any such action, suit or proceeding
effected without their written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the indemnifying parties agree to indemnify and
hold harmless any Manager, to the extent provided in the preceding paragraph,
and any such controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
(c) Each Manager agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Manager, but only with respect to
information relating to such Manager furnished in writing by or on behalf of
such Manager through you expressly for use in the Registration Statement, the
International Prospectus or any International Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, or any such
controlling person based on the Xxxxxxxxxxxx
00
Xxxxxxxxx, the International Prospectus or any International Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Manager pursuant to this paragraph (c), such
Manager shall have the rights and duties given to the Company by paragraph (b)
above (except that if the Company shall have assumed the defense thereof such
Manager shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof, but the fees and expenses of such
counsel shall be at such Manager's expense), and the Company, its directors, any
such officer, and any such controlling person shall have the rights and duties
given to the Managers by paragraph (b) above.
(d) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Managers on the other hand 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 on the one hand and the Managers on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Managers
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Managers, in each case as set forth in the table on the cover page of the
International Prospectus; provided that, in the event that the Managers shall
have purchased any Additional Shares hereunder, any determination of the
relative benefits received by the Company or the Managers from the offering of
the Shares shall include the net proceeds (before deducting expenses) received
by the Company, and the underwriting discounts and commissions received by the
Managers, from the sale of such Additional Shares, in each case computed on the
basis of the respective amounts set forth in the notes to the table on the cover
page of the International Prospectus. The relative fault of the Company on the
one hand and the Managers on the other hand 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 on the one hand or by the Managers on the
other hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Company and the Managers agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a pro
rata allocation (even if the Managers were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Managers shall be required to contribute any
amount in excess of the amount by which the total price of the Shares
underwritten by it and distributed
13
to the public exceeds the amount of any damages which such Managers 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 Managers' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule I hereto (or such numbers of Firm Shares
increased as set forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Managers or any person controlling any
Manager, the Company, its directors or officers or any person controlling the
Company, (ii) acceptance of any Shares and payment therefor hereunder, and (iii)
any termination of this Agreement. A successor to any Manager or any person
controlling any Manager, or to the Company, its directors or officers, or any
person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this
Section 7.
8. CONDITIONS OF MANAGERS' OBLIGATIONS. The several obligations of the
Managers to purchase the Firm Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 P.M. New York City time, on the date hereof, or at
such later date and time as shall be consented to by you, and all filings, if
any, required by Rules 424 and 430A under the Act shall have been timely made;
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been instituted
or, to the knowledge of the Company or any Manager, threatened by the
Commission, and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectuses or otherwise) shall
have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, that would have a Material Adverse Effect on the Company and the
Subsidiaries, taken as a whole, not contemplated by the Prospectuses, which
in your opinion, as Lead Managers of the several Managers,
14
would materially, adversely affect the market for the Shares, or (ii) any event
or development relating to or involving the Company or any officer or director
of the Company which makes any statement made in the Prospectuses untrue or
which, in the opinion of the Company and its counsel or the Managers and their
counsel, requires the making of any addition to or change in the Prospectuses in
order to state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectuses to reflect such event or development
would, in your opinion, as Lead Managers for the several Managers, materially
adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of
Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Company, dated the Closing Date
and addressed to you, as Lead Managers for the several Managers, in the form set
forth on Schedule II hereof.
(d) You shall have received on the Closing Date an opinion of Nida
& Xxxxxxx, counsel for the Company, dated the Closing Date and addressed to
you, as Lead Managers of the several Managers, in the form set forth on
Schedule III hereof.
(e) You shall have received on the Closing Date opinions of foreign
counsel, dated the Closing Date, concerning the Company's material foreign
Subsidiaries in forms reasonably satisfactory to the Lead Managers of the
several Managers and addressed to you as Lead Managers of the several Managers.
(f) You shall have received on the Closing Date an opinion of Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, counsel for the Managers, dated the Closing Date, in
the form set forth on Schedule IV hereof.
(g) You shall have received letters addressed to you, as Lead
Managers for the several Managers, and dated the date hereof and the Closing
Date from KPMG Peat Marwick LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(h) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there
shall not have been any material change in the capital stock of the Company
nor any material increase in the short-term or long-term debt of the Company
(other than in the ordinary course of business) from that set forth or
contemplated in the Registration Statement or the Prospectuses (or any
amendment or supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses (or any amendment or supplement thereto),
except as may otherwise be stated in the Registration Statement and
Prospectuses (or any amendment or supplement thereto), any material adverse
change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole; and (iv) all the representations and
warranties of the Company contained in this Agreement shall be true and
correct on and as of the date hereof and on and as of the Closing Date as if
made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive
15
officer and the chief financial officer of the Company (or such other officers
as are acceptable to you), to the effect set forth in this Section 8(h) and in
Section 8(i) hereof.
(i) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(j) The Shares shall have been listed or approved for listing, subject
to notice of issuance, on the Nasdaq National Market.
(k) The closing under the U.S. Underwriting Agreement shall have
occurred on the Closing Date concurrently with the closing hereunder.
(l) The Company shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any executive officer of the Company
and delivered to you, as Lead Managers for the several Managers, or to counsel
for the Managers, shall be deemed a representation and warranty by the Company
to each Manager as to the statements made therein.
The several obligations of the Managers to purchase Additional Shares
hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 8, except that, if any
Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in this Section 8 shall be dated the Option
Closing Date in question and the opinions or letters called for by paragraphs
(c), (d), (e), (f) and (g) shall be revised to reflect the sale of Additional
Shares.
9. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by the
Company of its obligations hereunder: (i) the preparation, printing or
reproduction, and filing with the Commission of the registration statement
(including financial statements and exhibits thereto), each of the Prepricing
Prospectuses, the Prospectuses, and each amendment or supplement to any of
them; (ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the registration statement, each International Prepricing Prospectus, the
International Prospectus and all amendments or supplements to any of them, as
may be reasonably requested for use in connection with the offering and sale
of the Shares; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Shares, including any stamp taxes in
connection with the original issuance and sale of the Shares; (iv) the
printing (or reproduction) and delivery of this Agreement, the U.S.
Underwriting Agreement, the Master Agreement Among Underwriters, the
Supplemental Agreement Among U.S. Underwriters, the Agreement Among Managers,
the Agreement Between U.S. Underwriters and Managers, the International
Selling Agreement, the Managers' Questionnaire, the preliminary and
supplemental Blue Sky Memoranda and all other agreements or documents printed
and delivered in connection with the offering of
16
the Underwritten Shares; (v) the registration of the Common Stock under the
Exchange Act and the listing of the Shares on the Nasdaq National Market;
(vi) the registration or qualification of the Shares for offer and sale under
the securities laws of the several jurisdictions as provided in Section 5(g)
hereof (including the reasonable fees, expenses and disbursements of counsel
for the Managers relating thereto, in an amount not exceed $5,000 in the
aggregate); (vii) the filing fees in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.; (viii) the
transportation and other expenses incurred by or on behalf of representatives
of the Company in connection with presentations to prospective purchasers of
the Shares; (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company; and (x) the performance by the Company of its other obligations
under the International Underwriting Agreement and the U.S. Underwriting
Agreement.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the registration statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Company, by notifying you, or
by you, as Lead Managers for the several Managers, by notifying the Company.
If any one or more of the Managers shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Shares which such defaulting Manager or Managers are
obligated but fail or refuse to purchase is not more than one-tenth of the
aggregate number of Shares which the Managers are obligated to purchase on the
Closing Date, each non-defaulting Manager shall be obligated, severally, in the
proportion which the number of Firm Shares set forth opposite its name in
Schedule I hereto bears to the aggregate number of Firm Shares set forth
opposite the names of all non-defaulting Managers or in such other proportion as
you may specify in accordance with Section 20 of the Master Agreement Among
Underwriters of Xxxxx Xxxxxx Inc., to purchase the Shares which such defaulting
Manager or Managers are obligated, but fail or refuse, to purchase. If any one
or more of the Managers shall fail or refuse to purchase Shares which it or they
are obligated to purchase on the Closing Date and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares which the Managers are obligated to purchase on the
Closing Date and arrangements satisfactory to you and the Company for the
purchase of such Shares by one or more non-defaulting Managers or other party or
parties approved by you and the Company are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Manager or the Company. In any such case which does not result
in termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Manager from
liability in respect of any such default of any such Manager under this
Agreement. The term "Manager" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule I hereto who, with
your approval and the approval of the Company, purchases Shares which a
defaulting Manager is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
17
11. TERMINATION OF AGREEMENT. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Manager to the Company, by notice to the Company, if prior to the Closing Date
or any Option Closing Date (if different from the Closing Date and then only as
to the Additional Shares), as the case may be, (i) trading in securities
generally on the New York Stock Exchange, American Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York or shall have been
declared by either federal or state authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in your judgment, impracticable or inadvisable to commence
or continue the offering of the Shares at the offering price to the public set
forth on the cover page of the International Prospectus or to enforce contracts
for the resale of the Shares by the Managers.
Notice of such termination may be given by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
12. INFORMATION FURNISHED BY THE MANAGERS. The statements set forth in
the last paragraph on the cover page, the stabilization legend on the inside
front cover page, and the statements in the first through thirteen paragraphs
under the caption "Underwriting" in any International Prepricing Prospectus and
in the International Prospectus, constitute the only information furnished by or
on behalf of the Managers through you as such information is referred to in
Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to the Company, at the office of the
Company at 0000 Xxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx X.
Xxxxxx, Chief Executive Officer (with copies to Xxxx X. Xxxxxx, Esq.,
Milbank, Tweed, Xxxxxx & XxXxxx, 000 X. Xxxxxxxx Xx., 00xx Xxxxx, Xxx
Xxxxxxx, XX 00000, and Xxxxxx X. Xxxx, Esq., Nida & Xxxxxxx Professional
Corporation, 000 Xxxxxx Xx., Xxxxx 000, Xxxxx Xxxxxxx, XX 93101), or (ii) if
to you, as Lead Managers for the several Managers, care of Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Manager, Investment
Banking Division (with a copy to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx
Xxxx Xx., Xxxx Xxxx, XX 00000-0000, Attention: Xxxx X. Xxxxxxxx, Esq.).
This Agreement has been and is made solely for the benefit of the several
Managers, the Company, its directors and officers, and the other controlling
persons referred to in Section 7 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Manager of any of the Shares in his or her
status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
18
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
19
Please confirm that the foregoing correctly sets forth the agreement among
the Company and the several Managers.
Very truly yours,
QAD INC.
By
------------------------------------------
Chief Executive Officer
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Managers named in Schedule I
hereto.
XXXXX XXXXXX INC.
XXXXX & COMPANY
XXXXXXXXX, XXXXXXXX & COMPANY LLC
As Lead Managers for the Several Managers
By: XXXXX XXXXXX INC.
By
-------------------------------
Managing Director
20
SCHEDULE I
QAD INC.
Number of Number of
Underwriter Firm Shares Underwriter Firm Shares
----------- ----------- ----------- -----------
Xxxxx Xxxxxx, Inc.
Xxxxx & Company
Xxxxxxxxx, Xxxxxxxx & Company
LLC
Total
SCHEDULE II
QAD INC.
FORM OF MILBANK, TWEED, XXXXXX & XXXXXX OPINION
[TO COME]
SCHEDULE III
QAD INC.
FORM OF NIDA & XXXXXXX OPINION
[TO COME]
SCHEDULE IV
QAD INC.
FORM OF XXXXXX XXXXXXX XXXXXXXX & XXXXXX OPINION
[TO COME]
