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Exhibit 1.1
4,000,000 Shares
STAFF LEASING, INC.
Common Stock
UNDERWRITING AGREEMENT
June __, 1997
XXXXXX BROTHERS INC.
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
XXXXXXXXXX SECURITIES
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Staff Leasing Inc., a Florida corporation (the "Company"), and a
stockholder of the Company named in Schedule 2 hereto (the "Firm Selling
Stockholder") propose to sell an aggregate of 4,000,000 shares (the "Firm
Stock") of the Company's common stock, par value $.01 per share (the "Common
Stock"). Of the 4,000,000 shares of Firm Stock, 3,500,000 are being sold by the
Company and 500,000 by the Firm Selling Stockholder. In addition, the Company
and certain stockholders of the Company named in Schedule 2 hereto (the "Option
Selling Stockholders" and, together with the Firm Selling Stockholder,
collectively referred to as the "Selling Stockholders") propose to grant to the
Underwriters named in Schedule 1 hereto (the "Underwriters") an option to
purchase up to an additional 600,000 shares of the Common Stock on the terms and
for the purposes set forth in Section 3 (the "Option Stock"). The Firm Stock and
the Option Stock, if purchased, are hereinafter collectively called the "Stock."
This is to confirm the agreement concerning the purchase of the Stock from the
Company and the Selling Stockholders by the Underwriters named in Schedule 1
hereto (the "Underwriters").
1. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-1, and an
amendment thereto, with respect to the Stock has (i) been prepared
by the Company in conformity with the requirements of the United
States Securities Act of 1933 (the "Securities Act") and the rules
and regulations (the "Rule and Regulations") of the United
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States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities
Act and (iii) become effective under the Securities Act. Copies of
such registration statement and the amendment or amendments thereto
have been delivered by the Company to you as the representatives
(the "Representatives") of the Underwriters. As used in this
Agreement, "Effective Time" means the date and the time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration
statement, or amendments thereof, before it became effective under
the Securities Act and any prospectus filed with the Commission by
the Company with the consent of the Representatives pursuant to Rule
424(a) of the Rules and Regulations; "Registration Statement" means
such registration statement, as amended at the Effective Time,
including all information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 6(a) hereof and deemed to be
a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations;
and "Prospectus" means such final prospectus, as first filed with
the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of
the Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become
effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will
not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing
date (as to the Prospectus and any amendment or supplement thereto)
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; provided that no representation
or warranty is made as to information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically
for inclusion therein.
(c) Each of the Company, Staff Acquisition, Inc.
("Staff Acquisition") and each of the partnerships identified in
Section 17 (collectively, the "Subsidiaries") has been duly
incorporated or organized, as the case may be, and is validly
existing as a corporation or limited partnership, as the case may
be, in good standing under the laws of its jurisdiction of
incorporation or organization, as the case may be, is duly qualified
to do business and is in good standing as a foreign corporation or
limited partnership, as the case may be, in each jurisdiction in
which its ownership or lease of property or the conduct of its
businesses
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requires such qualification, except where the failure to be so
qualified would not result in a material adverse effect on the
consolidated financial position, stockholders' or partners' equity,
results of operations, business or prospects of the Company, Staff
Acquisition or the Subsidiaries, and has all power and authority
necessary to own or hold its properties and to conduct the
businesses in which it is engaged. Other than the Subsidiaries, the
Company has no "subsidiary," as that term is defined in Rule 405 of
the Rules and Regulations.
(d) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus; all of the issued
equity interests of each Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable and,
other than a one percent general partner interest in each Subsidiary
owned by Staff Acquisition, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims; and all of the issued shares of capital stock of Staff
Acquisition have been duly and validly authorized and issued and are
fully paid and non-assessable and are owned by Xxxxxxx X. Xxxxx,
free and clear of all liens, encumbrances, equities or claims,
except the Option to Purchase Agreement between Xxxxxxx X. Xxxxx and
the Company, dated _________, 1997, (the "Option Agreement") and the
Voting Trust Agreement between Xxxxxxx X. Xxxxx and the Company,
dated ___________, 1997 (the "Voting Trust Agreement").
(e) The unissued shares of the Stock to be
issued and sold by the Company to the Underwriters hereunder have
been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable and will conform to
the description thereof contained in the Prospectus.
(f) This Agreement has been duly authorized,
executed and delivered by the Company.
(g) The execution, delivery and performance of
this Agreement, the Option Agreement and the Voting Trust Agreement
and the consummation of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, Staff Acquisition or
any of the Subsidiaries is a party or by which the Company, Staff
Acquisition or any of the Subsidiaries is bound or to which any of
the property or assets of the Company, Staff Acquisition or any of
the Subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter, by-laws or governing
instruments of the Company, Staff Acquisition or any of the
Subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having
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jurisdiction over the Company, Staff Acquisition or any of the
Subsidiaries or any of their properties or assets; and except for
the registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution of
the Stock by the Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement, the Option Agreement and the
Voting Trust Agreement and the consummation of the transactions
contemplated hereby and thereby.
(h) There are no contracts, agreements or
understandings between the Company or any Subsidiary and any person
granting such person the right (other than rights which have been
waived or satisfied or which will not be exercisable prior to the
Second Delivery Date (as defined below) to require the Company to
file a registration statement under the Securities Act with respect
to any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(i) Except as described in the Registration
Statement, the Company has not sold or issued any shares of Common
Stock during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act, other than shares issued
pursuant to employee benefit plans, qualified stock options plans or
other employee compensation plans or pursuant to outstanding
options, rights or warrants.
(j) Neither the Company, Staff Acquisition nor
any of the Subsidiaries has sustained, since the date of the latest
audited financial statements included in the Prospectus, any
material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company, Staff
Acquisition or any of the Subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' or partners' equity or results of operations
of the Company, Staff Acquisition or any of the Subsidiaries,
otherwise than as set forth or contemplated in the Prospectus.
(k) The financial statements (including the
related notes and supporting schedules) filed as part of the
Registration Statement or included in the Prospectus present fairly
the financial condition and results of operations of the entities
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purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved.
(l) Deloitte & Touche, LLP, who have certified
certain financial statements of the Company and the Subsidiaries,
whose reports appear in the Prospectus and who have delivered the
initial letter referred to in Section 9(g) hereof, are independent
public accountants as required by the Securities Act and the Rules
and Regulations.
(m) Each of the Company, Staff Acquisition and
the Subsidiaries has good and marketable title to all personal
property owned by it, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and
proposed to be made of such property by the Company, Staff
Acquisition and the Subsidiaries; and all material real property and
buildings held under lease by the Company, Staff Acquisition or any
of the Subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company, Staff Acquisition and the
Subsidiaries. Neither the Company, Staff Acquisition nor any of the
Subsidiaries own any real property.
(n) The Company, Staff Acquisition and each of
the Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of their
respective businesses and the value of their respective properties.
(o) Each of the Company, Staff Acquisition and
each of the Subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service xxxx registrations,
copyrights and licenses necessary for the conduct of its businesses
and have no reason to believe that the conduct of its businesses
will conflict with, and have not received any notice of any claim of
conflict with, any such rights of others.
(p) There are no legal or governmental
proceedings pending to which the Company, Staff Acquisition or any
of the Subsidiaries is a party or of which any property or assets of
the Company, Staff Acquisition or any of the Subsidiaries is the
subject which, if determined adversely to the Company, Staff
Acquisition or any of the Subsidiaries, could reasonably be expected
to have a material adverse effect on the consolidated financial
position, stockholders' or partners' equity, results of operations,
business or prospects of the Company, Staff Acquisition or the
Subsidiaries; and to the best of the Company's
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knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(q) There are no contracts or other documents
which are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(r) No relationship, direct or indirect, exists
between or among the Company on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company on the
other hand, which is required to be described in the Prospectus
which is not so described.
(s) No labor disturbance by the employees of the
Company or any of the Subsidiaries exists or, to the knowledge of
the Company, is imminent which might be expected to have a material
adverse effect on the consolidated financial position, stockholders'
or partners' equity, results of operations, business or prospects of
the Company, Staff Acquisition or the Subsidiaries.
(t) Each of the Company, Staff Acquisition and
the Subsidiaries is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable
event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company, Staff
Acquisition or any of the Subsidiaries would have any liability;
neither the Company, Staff Acquisition nor any of the Subsidiaries
has incurred and does not expect to incur liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for
which the Company, Staff Acquisition or any of the Subsidiaries
would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
(u) Each of the Company, Staff Acquisition and
the Subsidiaries has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof
and has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company, Staff Acquisition or any of the
Subsidiaries which has had (nor does the Company have any knowledge
of any tax deficiency which, if determined adversely to the Company,
Staff Acquisition or any of the Subsidiaries, might have) a material
adverse
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effect on the consolidated financial position, stockholders' or
partners' equity, results of operations, business or prospects of
the Company and the Subsidiaries.
(v) Since the date as of which information is
given in the Prospectus through the date hereof, and except as may
otherwise be disclosed in or contemplated by the Prospectus, neither
the Company nor any of the Subsidiaries has not (i) issued or
granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital stock.
(w) Each of the Company, Staff Acquisition and
each of the Subsidiaries (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access
to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(x) Neither the Company, Staff Acquisition nor
any of the Subsidiaries (i) is in violation of its charter, by-laws
or governing instruments, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is
subject or (iii) is in violation in any material respect of any law,
ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business, where such violation
or failure would have a material adverse effect on the consolidated
financial position, stockholders' or partners' equity, results of
operations, business or prospects of the Company, Staff Acquisition
or the Subsidiaries.
(y) Neither the Company, Staff Acquisition nor
any of the Subsidiaries, nor any director, officer, agent, employee
or other person associated with or acting on behalf of the Company,
Staff Acquisition or any of the Subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in
violation of any provision of the Foreign
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Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(z) There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, medical wastes, hazardous wastes or
hazardous substances by the Company, Staff Acquisition or any of the
Subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now
or previously owned or leased by the Company, Staff Acquisition or
the Subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions, a material adverse effect on
the general affairs, management, financial position, stockholders'
or partners' equity or results of operations of the Company, Staff
Acquisition or the Subsidiaries; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of
any kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes,
hazardous wastes or hazardous substances due to or caused by the
Company, Staff Acquisition or any of the Subsidiaries or with
respect to which the Company, Staff Acquisition or any of the
Subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would
not have or would not be reasonably likely to have, singularly or in
the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a material adverse
effect on the general affairs, management, financial position,
stockholders' or partners' equity or results of operations of the
Company, Staff Acquisition or the Subsidiaries; and the terms
"hazardous wastes", "toxic wastes", "hazardous substances" and
"medical wastes" shall have the meanings specified in any applicable
local, state, federal and foreign laws or regulations with respect
to environmental protection.
(aa) Neither the Company, Staff Acquisition nor
any Subsidiary is an "investment company" within the meaning of such
term under the Investment Company Act of 1940 and the rules and
regulations of the Commission thereunder.
(bb) At the First Delivery Date (as defined in
Section 5 hereof), pursuant to the terms of an Agreement and Plan of
Merger by and among SLI Transitory, L.P., the Company, Staff
Acquisition and Staff Capital, L.P. (the "Merger Agreement"), all of
the equity interests in Staff Capital L.P. will have been duly and
validly exchanged for Common Stock of the Company, cash and/or
warrants to purchase Common Stock of the Company, and all of the
equity interest in Staff Capital L.P., other than a one percent
general partner interest
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held by Staff Acquisition, will be owned directly by the Company,
free and clear of all liens, encumbrances, equities and claims; and,
at the First Delivery Date, all of the shares of Common Stock to be
issued in exchange for the equity interests in Staff Capital L.P.
will have been duly authorized and will be fully paid and
non-assessable.
(cc) Each of the Option Agreement and Voting
Trust Agreement has been, and prior to the First delivery Date, the
Merger Agreement will be, duly authorized, executed and delivered by
each of the parties thereto and constitute valid and binding
agreements of each of the parties thereto, enforceable in accordance
with their respective terms.
2. Representations, Warranties and Agreements of the
Selling Stockholders. Each Selling Stockholder severally represents, warrants
and agrees that, as to himself or itself only:
(a) The Selling Stockholder has, and immediately
prior to the First Delivery Date (as defined in Section 5 hereof) in
the case of the Firm Selling Stockholder, and the Second Delivery
Date (as defined in Section 5 hereof) in the case of the Option
Selling Stockholders, the Selling Stockholder will have, good and
valid title to the shares of Stock to be sold by the Selling
Stockholder hereunder on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such shares
and payment therefor pursuant hereto, good and valid title to such
shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the several Underwriters.
(b) The Selling Stockholder has placed in
custody under a custody agreement (the "Custody Agreement" and,
together with all other similar agreements executed by the other
Selling Stockholders, the "Custody Agreements") with
_________________, as custodian (the "Custodian"), for delivery
under this Agreement, certificates in negotiable form (with
signature guaranteed by a commercial bank or trust company having an
office or correspondent in the United States or a member firm of the
New York or American Stock Exchanges) representing the shares of
Stock to be sold by the Selling Stockholder hereunder.
(c) The Selling Stockholder has duly and
irrevocably executed and delivered a power of attorney (the "Power
of Attorney" and, together with all other similar agreements
executed by the other Selling Stockholders, the "Powers of
Attorney") appointing _____________ and one or more other persons,
as attorneys-in-fact, with full power of substitution, and with full
authority (exercisable by any one or more of them) to execute and
deliver this Agreement and to take such other action as may be
necessary or desirable to carry out the provisions hereof on behalf
of the Selling Stockholder.
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(d) The Selling Stockholder has full right,
power and authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement; the execution, delivery and
performance of this Agreement, the Power of Attorney and the Custody
Agreement by the Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Stockholder is a party
or by which the Selling Stockholder is bound or to which any of the
property or assets of the Selling Stockholder is subject, nor will
such actions result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Selling Stockholder or the property or
assets of the Selling Stockholder; and, except for the registration
of the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement, the Power of Attorney or the Custody Agreement by
the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby.
(e) The Selling Stockholder has no reason to
believe that the representations and warranties of the Company
contained in Section 1 hereof are not materially true and correct,
is familiar with the Registration Statement and the Prospectus (as
amended or supplemented) and has no knowledge of any material fact,
condition or information not disclosed in the Registration
Statement, as of the effective date, or the Prospectus (or any
amendment or supplement thereto), as of the applicable filing date,
which has adversely affected or may adversely affect the business of
the Company and is not prompted to sell shares of Common Stock by
any information concerning the Company which is not set forth in the
Registration Statement and the Prospectus.
(f) The Selling Stockholder has not taken and
will not take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to
cause or result in the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
shares of the Stock.
3. Purchase of the Stock by the Underwriters. On the basis
of the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 3,500,000 shares of
the Firm Stock and the Firm Selling Stockholder agrees to sell 500,000 shares of
the Firm Stock, severally and not jointly, to the several Underwriters and each
of the Underwriters, severally and not jointly,
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agrees to purchase the number of shares of the Firm Stock set opposite that
Underwriter's name in Schedule 1 hereto. Each Underwriter shall be obligated to
purchase from the Company and the Firm Selling Stockholder that number of shares
of the Firm Stock which represents the same proportion of the number of shares
of the Firm Stock to be sold by the Company and by the Firm Selling Stockholder
as the number of shares of Firm Stock set forth opposite the name of such
Underwriter in Schedule 1 represents of the total number of shares of the Firm
Stock to be purchased by all Underwriters pursuant to this Agreement. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine.
In addition, the Company and the Option Selling Stockholders grant
to the Underwriters an option to purchase up to [ ] shares of Option Stock. Such
option is granted solely for the purpose of covering over-allotments in the sale
of Firm Stock and is exercisable as provided in Section 5 hereof. [Shares of
Option Stock shall be purchased first from the Option Selling Stockholders, pro
rata, and then from the Company and the Firm Selling Stockholder, pro rata.]
Shares of Option Stock shall be purchased severally for the account of the
Underwriters in proportion to the number of shares of Firm Stock set opposite
the name of such Underwriters in Schedule 1 hereto. The respective purchase
obligations of each Underwriter with respect to the Option Stock shall be
adjusted by the Representatives so that no Underwriter shall be obligated to
purchase Option Stock other than in 100 share amounts. The price of both the
Firm Stock and any Option Stock shall be $_____ per share.
The Company and the Selling Stockholders shall not be obligated to
deliver any of the Stock to be delivered on the First Delivery Date or the
Second Delivery Date, as the case may be, except upon payment for all the Stock
to be purchased on such Delivery Date as provided herein.
4. Offering of Stock by the Underwriters.
Upon authorization by the Representatives of the release of the Firm
Stock, the several Underwriters propose to offer the Firm Stock for sale upon
the terms and conditions set forth in the Prospectus.
5. Delivery of and Payment for the Stock. Delivery of and
payment for the Firm Stock shall be made at the office of ____________________,
________________________, ________, ________ _____, at 10:00 A.M., New York City
time, on the [third] [fourth] full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Company. This date and time are sometimes
referred to as the First Delivery Date." On the First Delivery Date, the Company
and the Firm Selling Stockholder shall deliver or cause to be delivered
certificates representing the Firm Stock to the Representatives for the account
of each Underwriter against payment to or upon the order of the Company and the
Firm Selling Stockholder of the purchase price by certified or official bank
check or checks payable in Clearing House (next-day) funds. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Firm
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Stock shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Stock, the Company and the Firm
Selling Stockholder shall make the certificates representing the Firm Stock
available for inspection by the Representatives in New York, New York, not later
than 2:00 P.M., New York City time, on the business day prior to the First
Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 3 may be exercised by written notice
being given to the Company and the Option Selling Stockholders by the
Representatives. Such notice shall set forth the aggregate number of shares of
Option Stock as to which the option is being exercised, the names in which the
shares of Option Stock are to be registered, the denominations in which the
shares of Option Stock are to be issued and the date and time, as determined by
the Representatives, when the shares of Option Stock are to be delivered;
provided, however, that this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after the date on which
the option shall have been exercised nor later than the fifth business day after
the date on which the option shall have been exercised. The date and time the
shares of Option Stock are delivered are sometimes referred to as the "Second
Delivery Date" and the First Delivery Date and the Second Delivery Date are
sometimes each referred to as a "Delivery Date").
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the
Representatives, the Company and the Option Selling Stockholders) at 10:00 A.M.,
New York City time, on the Second Delivery Date. On the Second Delivery Date,
the Company shall deliver or cause to be delivered the certificates representing
the Option Stock to the Representatives for the account of each Underwriter
against payment to or upon the order of the Company of the purchase price by
certified or official bank check or checks or wire transfer payable in same-day
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. Upon delivery, the Option Stock shall be registered
in such names and in such denominations as the Representatives shall request in
the aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Stock, the Company shall make the
certificates representing the Option Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Second Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than Commission's close of
business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act; to make
no further amendment or any supplement to the Registration Statement
or to the Prospectus except as permitted herein; to advise
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the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus,
of the suspension of the qualification of the Stock for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus
or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish promptly to each of the
Representatives and to counsel for the Underwriters a signed copy of
the Registration Statement as originally filed with the Commission,
and each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives
such number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits other than this Agreement
and the computation of per share earnings) and (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented
Prospectus and, if the delivery of a prospectus is required at any
time after the Effective Time in connection with the offering or
sale of the Stock or any other securities relating thereto and if at
such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Securities Act, to notify the Representatives and, upon
their request, to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an
amended or supplemented Prospectus which will correct such statement
or omission or effect such compliance.
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the judgment of the
Company or the Representatives, be required by the Securities Act or
requested by the Commission;
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(e) Prior to filing with the Commission any
amendment to the Registration Statement or supplement to the
Prospectus or any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Representatives and
counsel for the Underwriters and obtain the consent of the
Representatives to the filing;
(f) As soon as practicable after the Effective
Date to make generally available to the Company's security holders
and to deliver to the Representatives an earnings statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the
Effective Date, to furnish to the Representatives copies of all
materials furnished by the Company to its stockholders and all
public reports and all reports and financial statements furnished by
the Company to the principal national securities exchange upon which
the Common Stock may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such
action as the Representatives may reasonably request to qualify the
Stock for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Stock; provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction;
(i) For a period of 180 days from the date of
the Prospectus, not to, directly or indirectly, offer for sale, sell
or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any shares
of Common Stock (other than (i) the Stock and shares issued pursuant
to employee benefit plans, qualified stock option plans or other
employee compensation plans existing on the date hereof or pursuant
to currently outstanding options, warrants or rights, (ii) issuance
of shares of Common Stock and warrants to purchase Common Stock
pursuant to the Merger Agreement and (iii) issuance of shares of
Common Stock in acquisition transactions not involving a public
offering), or sell or grant options, rights or warrants with respect
to any shares of Common Stock (other than the grant of options
pursuant to option plans existing on the date hereof), without the
prior written consent of Xxxxxx Brothers Inc.; and to cause each
officer, director and shareholder of the Company (other than the
Selling Stockholders) to furnish to the Representatives, prior to
the First Delivery Date, a letter or letters, in form and substance
satisfactory to counsel for the
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Underwriters, pursuant to which each such person shall agree not to,
directly or indirectly, offer for sale, sell or otherwise dispose of
(or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock for a period of
180 days from the date of the Prospectus, without the prior written
consent of Xxxxxx Brothers Inc.;
(j) Prior to the Effective Date, to apply for
the inclusion of the Stock on the National Market System and to use
its best efforts to complete that listing, subject only to official
notice of issuance, prior to the First Delivery Date;
(k) To apply the net proceeds from the sale of
the Stock being sold by the Company as set forth in the Prospectus;
(l) Prior to filing with the Commission any
reports on Form SR pursuant to Rule 463 of the Rules and
Regulations, to furnish a copy thereof to the counsel for the
Underwriters and receive and consider its comments thereon, and to
deliver promptly to the Representatives a signed copy of each report
on Form SR filed by it with the Commission; and
(m) To take such steps as shall be necessary to
ensure that neither the Company, Staff Acquisition nor any
Subsidiary shall become an "investment company" within the meaning
of such term under the Investment Company Act of 1940 and the rules
and regulations of the Commission thereunder.
7. Further Agreements of the Selling Stockholders. Each
Selling Stockholder severally agrees:
(a) For a period of 180 days from the date of
the Prospectus, not to, directly or indirectly, offer for sale, sell
or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any shares
of Common Stock (other than the Stock), without the prior written
consent of Xxxxxx Brothers Inc.
(b) That the Stock to be sold by the Selling
Stockholder hereunder, which is represented by the certificates held
in custody for the Selling Stockholder, is subject to the interest
of the Underwriters and the other Selling Stockholders thereunder,
that the arrangements made by the Selling Stockholder for such
custody are to that extent irrevocable, and that the obligations of
the Selling Stockholder hereunder shall not be terminated by any act
of the Selling Stockholder, by operation of law, by the death or
incapacity of any individual Selling Stockholder or, in the case of
a trust, by the death or incapacity of any executor or trustee or
the termination of such trust, or the occurrence of any other event.
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(c) To deliver to the Representatives prior to
the First Delivery Date, in the case of the Firm Selling
Stockholder, or the Second Delivery Date, in the case of the Option
Selling Stockholders, a properly completed and executed United
States Treasury Department Form W-8 (if the Selling Stockholder is a
non-United States person) or Form W-9 (if the Selling Stockholder is
a United States person.)
8. Expenses. The Company agrees to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Stock and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement and any other related documents in connection with
the offering, purchase, sale and delivery of the Stock; (e) the costs of
delivering and distributing the Custody Agreements and the Powers of Attorney;
(f) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. ("NASD") of the terms of sale of the
Stock; (g) any applicable listing or other fees; (h) the fees and expenses of
qualifying the Stock under the securities laws of the several jurisdictions as
provided in Section 6; (h) the costs of preparing, printing and distributing a
Blue Sky Memorandum (including related fees and expenses of counsel to the
Underwriters); and (i) all other costs and expenses incident to the performance
of the obligations of the Company [and the Selling Stockholders under this
Agreement;] provided that, except as provided in this Section 8 and in Section
14 the Underwriters shall pay their own costs and expenses, including the costs
and expenses of their counsel, any transfer taxes on the Stock which they may
sell and the expenses of advertising any offering of the Stock made by the
Underwriters, and each Selling Stockholder shall pay the fees and expenses of
his or its counsel, the Custodian (and any other attorney-in-fact), and any
transfer taxes payable in connection with his or its respective sales of Stock
to the Underwriters and reimburse the Company for his or its pro rata share of
the filing fee paid by the Company to the Commission and to the NASD referred to
in clause (f) of this Section 8 in connection with the offering of the Stock.
9. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Stockholders contained herein, to the performance by the Company
and the Selling Stockholders of their respective obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed
with the Commission in accordance with Section 6(a); no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and any request of the Commission for inclusion of additional
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information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and
disclosed to the Company on or prior to such Delivery Date that the
Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which, in
the opinion of O'Melveny & Xxxxx LLP, counsel for the Underwriters,
is material or omits to state a fact which, in the opinion of such
counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal
matters incident to the authorization, form and validity of this
Agreement, the Option Agreement, the Voting Trust Agreement, the
Merger Agreement, the Custody Agreements, the Powers of Attorney,
the Stock, the Registration Statement and the Prospectus, and all
other legal matters relating to this Agreement and the transactions
contemplated hereby, shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company,
Staff Acquisition and the Selling Stockholders shall have furnished
to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Powell, Goldstein, Xxxxxx & Xxxxxx LLP shall
have furnished to the Representatives its written opinion, as
counsel to the Company, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company, Staff Acquisition
and each of the Subsidiaries have been duly incorporated
or organized, as the case may be, and are validly
existing as corporations or limited partnerships, as the
case may be, in good standing under the laws of their
respective jurisdictions of incorporation or
organization, are duly qualified to do business and are
in good standing as foreign corporations or limited
partnerships, as the case may be, in each jurisdiction
in which their respective ownership or lease of property
or the conduct of their respective businesses requires
such qualification and have all power and authority
necessary to own or hold their respective properties and
conduct the businesses in which they are engaged;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and all
of the issued shares of capital stock of the Company
(including the shares of Stock being delivered on such
Delivery Date) have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to
the description thereof contained in the Prospectus; all
of the issued equity interests of each Subsidiary have
been duly and validly authorized and issued and are
fully paid, non-assessable
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and, other than a one percent general partner interest
in each Subsidiary owned by Staff Acquisition, are owned
directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims; and all of
the issued shares of capital stock of Staff Acquisition
have been duly and validly authorized and issued and are
fully paid, non-assessable and owned by Xxxxxxx X.
Xxxxx, free and clear of all liens, encumbrances,
equities and claims, except the Option Agreement and the
Voting Trust Agreement;
(iii) There are no preemptive or other
rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares
of the Stock pursuant to the Company's charter or
by-laws or any agreement or other instrument known to
such counsel;
(iv) To the best of such counsel's
knowledge and other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending
to which the Company, Staff Acquisition or any of the
Subsidiaries is a party or of which any property or
assets of the Company, Staff Acquisition or any of the
Subsidiaries is the subject which, if determined
adversely to the Company, Staff Acquisition or any of
the Subsidiaries, might have a material adverse effect
on the consolidated financial position, stockholders' or
partners' equity, results of operations, business or
prospects of the Company, Staff Acquisition or the
Subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened
by others;
(v) The Registration Statement was
declared effective under the Securities Act as of the
date and time specified in such opinion, the Prospectus
was filed with the Commission pursuant to the
subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein
and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the
knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission;
(vi) The Registration Statement and
the Prospectus and any further amendments or supplements
thereto made by the Company prior to such Delivery Date
(other than the financial statements and related
schedules therein, as to which such counsel need express
no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the
Rules and Regulations;
(vii) To the best of such counsel's
knowledge, there are no contracts or other documents
which are required to be described in the
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Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and
Regulations which have not been described or filed as
exhibits to the Registration Statement or incorporated
therein by reference as permitted by the Rules and
Regulations;
(viii) This Agreement has been duly
authorized, executed and delivered by the Company;
(ix) The issue and sale of the shares
of Stock being delivered on such Delivery Date by the
Company and the compliance by the Company with all of
the provisions of this Agreement will not conflict with
or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to
which the Company, Staff Acquisition or any of the
Subsidiaries is a party or by which the Company, Staff
Acquisition or any of the Subsidiaries is bound or to
which any of the property or assets of the Company,
Staff Acquisition or any of the Subsidiaries is subject,
nor will such actions result in any violation of the
provisions of the charter, by-laws or governing
instruments of the Company, Staff Acquisition or any of
the Subsidiaries or any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company, Staff Acquisition or any of the Subsidiaries or
any of their properties or assets; and, except for the
registration of the Stock under the Securities Act and
such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange
Act and applicable state securities laws in connection
with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court
or governmental agency or body is required for the
execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated
hereby;
(x) To the best of such counsel's
knowledge, there are no contracts, agreements or
understandings between the Company or any Subsidiary and
any person granting such person the right (other than
rights which have been waived or satisfied or which will
not be exercisable prior to the Second Delivery Date) to
require the Company to file a registration statement
under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to
require the Company to include such securities in the
securities registered pursuant to the Registration
Statement or in any securities being registered pursuant
to any other registration statement filed by the Company
under the Securities Act;
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(xi) The merger of SLI Transitory,
L.P. and Staff Capital, L.P. has been duly and validly
consummated in accordance with the terms of the Merger
Agreement and all of the equity interests in Staff
Capital L.P. have been duly and validly exchanged for
Common Stock of the Company, cash and/or warrants to
purchase Common Stock of the Company in accordance with
the terms of the Merger Agreement, and all of the equity
interests in Staff Capital L.P., other than a one
percent general partner interest held by Staff
Acquisition, are owned directly by the Company, free and
clear of all liens, encumbrances, equities and claims;
and all of the shares of Common Stock issued in exchange
for the equity interests in Staff Capital L.P. have been
duly authorized and are fully paid and non-assessable;
and
(xii) Each of the Option Agreement and
the Voting Trust Agreement has been duly authorized,
executed and delivered by each of Staff Acquisition and
the Company and constitutes a valid and binding
agreement of each of Staff Acquisition and the Company,
enforceable in accordance with their respective terms.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United
States of America and the laws of the State of New York and Florida.
Such counsel shall also have furnished to the Representatives a
written statement, addressed to the Underwriters and dated such
Delivery Date, in form and substance satisfactory to the
Representatives to the effect that such counsel has acted as counsel
to the Company in connection with the preparation of the
Registration Statement, and based on the foregoing, no facts have
come to the attention of such counsel which cause it to believe that
the Registration Statement, as of the Effective Date, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus contains
any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The foregoing opinion and statement may
be qualified by a statement to the effect that such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus except for the statements made in the Prospectus under
the captions "The Reorganization," "Industry Regulation,"
"Description of Capital Stock" and "Shares Eligible for Future
Sale," insofar as such statements relate to the Stock and concern
legal matters.
(e) At the First Delivery Date, in the case of
the Firm Selling Stockholder, and at the Second Delivery Date if it
occurs, in the case of the Option Selling Stockholders, the
respective counsel for each of the Selling
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Stockholders shall each have furnished to the Representatives their
written opinion, as counsel to each of the Selling Stockholders for
whom they are acting as counsel, addressed to the Underwriters and
dated the Second Delivery Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) Such Selling Stockholder has
full right, power and authority to enter into this
Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of
this Agreement, the Power of Attorney and the Custody
Agreement by such Selling Stockholder and the
consummation by such Selling Stockholder of the
transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default
under, any statute, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument
known to such counsel to which such Selling Stockholder
is a party or by which such Selling Stockholder is bound
or to which any of the property or assets of such
Selling Stockholder is subject, nor will such actions
result in any violation of any statute or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
such Selling Stockholder or the property or assets of
such Selling Stockholder; and, except for the
registration of the Stock under the Securities Act and
such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange
Act and applicable state securities laws in connection
with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court
or governmental agency or body is required for the
execution, delivery and performance of this Agreement,
the Power of Attorney or the Custody Agreement by such
Selling Stockholder and the consummation by such Selling
Stockholder of the transactions contemplated hereby and
thereby;
(ii) This Agreement has been duly
executed and delivered by or on behalf of such Selling
Stockholder;
(iii) A Power-of-Attorney and a
Custody Agreement have been duly executed and delivered
by such Selling Stockholder and constitute valid and
binding agreements of such Selling Stockholder,
enforceable in accordance with their respective terms;
(iv) Immediately prior to the
Delivery Date, such Selling Stockholder had good and
valid title to the shares of Stock to be sold by such
Selling Stockholder under this Agreement, free and clear
of all liens, encumbrances, equities or claims, and full
right, power and authority to
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sell, assign, transfer and deliver such shares to be
sold by such Selling Stockholder hereunder; and
(v) Upon payment for and delivery of
the Stock to be sold by such Selling Stockholder in
accordance with the terms of this Agreement, assuming
the Underwriters are acquiring such Stock in good faith
without notice of any adverse claim, the Underwriters
will acquire such stock free and clear of any adverse
claim.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United
States of America, the laws of ______________________. Such counsel
shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated the Delivery
Date, in form and substance satisfactory to the Representatives, to
the effect that (x) such counsel has acted as counsel to such
Selling Stockholder in connection with the preparation of the
Registration Statement, and (y) based on the foregoing, no facts
have come to the attention of such counsel which lead it to believe
that the Registration Statement, as of the Effective Date, contained
any untrue statement of a material fact relating to such Selling
Stockholder or omitted to state such a material fact required to be
stated therein with respect to such Selling Stockholder or necessary
in order to make the statements therein with respect to such Selling
Stockholder not misleading, or that the Prospectus contains any
untrue statement of a material fact relating to such Selling
Stockholder or omits to state such a material fact required to be
stated therein with respect to such Selling Stockholder or necessary
in order to make the statements therein with respect to such Selling
Stockholder, in light of the circumstances under which they were
made, not misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus.
(f) The Representatives shall have received from
O'Melveny & Xxxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated such Delivery Date, with respect to the issuance and
sale of the Stock, the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably require,
and the Company and the Selling Stockholders shall have furnished to
such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement,
the Representatives shall have received from Deloitte & Touche LLP a
letter, in form and substance satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof (i)
confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants
under Rule 2-01 of
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Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters"
to underwriters in connection with registered public offerings.
(h) With respect to the letter of Deloitte &
Touche LLP referred to in the preceding paragraph and delivered to
the Representatives concurrently with the execution of this
Agreement (the "initial letter"), the Company shall have furnished
to the Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated such Delivery
Date (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission,
(ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior
to the date of the bring-down letter), the conclusions and findings
of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the
initial letter.
(i) The Company shall have furnished to the
Representatives a certificate, dated such Delivery Date, of its
Chairman of the Board, its President or a Vice President and its
chief financial officer stating that:
(i) The representations, warranties
and agreements of the Company in Section 1 are true and
correct in all material respects as of such Delivery
Date; the Company has complied in all material respects
with all its agreements contained herein; and the
conditions set forth in Sections 9(a) and 9(m) have been
fulfilled; and
(ii) They have carefully examined the
Registration Statement and the Prospectus and, in their
opinion (A) as of the Effective Date, the Registration
Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading, and (B)
since the Effective Date no event has occurred which
should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus.
(j) At the First Delivery Date, in the case of
the Firm Selling Stockholder, and at the Second Delivery Date if it
occurs, in the case of the
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Option Selling Stockholders, each Selling Stockholder (or the
Custodian or one or more attorneys-in-fact on behalf of the Selling
Stockholders) shall have furnished to the Representatives on such
Delivery Date a certificate, dated such Delivery Date, signed by, or
on behalf of, such Selling Stockholder (or the Custodian or one or
more attorneys-in-fact) stating that the representations, warranties
and agreements of such Selling Stockholder contained herein are true
and correct in all material respects as of the Second Delivery Date
and that such Selling Stockholder has complied in all material
respects with all agreements contained herein to be performed by the
Selling Stockholder at or prior to the Second Delivery Date.
(k) (i) Neither the Company, Staff Acquisition
nor any of the Subsidiaries shall have sustained since the date of
the latest audited financial statements included in the Prospectus
any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus or (ii) since such date there shall not have been any
change in the capital stock or long-term debt of the Company or any
of the Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' or partners' equity or results of
operations of the Company, Staff Acquisition or the Subsidiaries,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii),
is, in the judgment 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 Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(l) Subsequent to the execution and delivery of
this Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange
or the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices
shall have been established on any such exchange or such market by
the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities,
(iii) the United States shall have become engaged in hostilities,
there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of a majority in interest of
the several Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the
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Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(m) The National Market System shall have
approved the Stock for inclusion, subject only to official notice of
issuance.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company and each Subsidiary, jointly and severally,
shall indemnify and hold harmless each Underwriter, its officers and employees
and each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Stock), to which that Underwriter, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (B) in any blue sky application or other
document prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of qualifying
any or all of the Stock under the securities laws of any state or other
jurisdiction (any such application, document or information being hereinafter
called a "Blue Sky Application"), (ii) the omission or alleged omission to state
in any Preliminary Prospectus, the Registration Statement or the Prospectus, or
in any amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in any manner
to, the Stock or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action arising out of
or based upon matters covered by clause (i) or (ii) above (provided that the
Company and the Subsidiary shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful misconduct), and
shall reimburse each Underwriter and each such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company and the Subsidiaries shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any such amendment or supplement, or in any
Blue Sky
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Application, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein, and
further, provided, however, that the Company and the Subsidiaries shall not be
liable to an Underwriter in respect of any Preliminary Prospectus, or any
amendment or supplement thereto, to the extent that both (i) all of the untrue
statements or alleged untrue statements or omissions or alleged omissions of a
material fact contained in any Preliminary Prospectus or any amendment or
supplement thereto were fully corrected in the Prospectus or in an amendment or
supplement thereto and (ii) the Prospectus, together with such amendment or
supplement, if any, was provided to such Underwriter by the Company prior to the
time the written confirmation of the sale of Stock to such person was sent and
was not sent or given to the purchaser of the stock in question by such
Underwriter at or prior to the written confirmation of the sale of Stock to such
person. The foregoing indemnity agreement is in addition to any liability which
the Company or the Subsidiaries may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) The Selling Stockholders, severally and not jointly,
shall indemnify and hold harmless each Underwriter, its officers and employees,
and each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Stock), to which that Underwriter, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, Registration Statement or the Prospectus,
or in any amendment or supplement thereto, any 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 any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto in reliance upon and in conformity with written
information concerning such Selling Stockholder furnished by such Selling
Stockholder to the Company specifically for inclusion therein, and shall
reimburse each Underwriter, its officers and employees and each such controlling
person for any legal or other expenses reasonably incurred by that Underwriter,
its officers and employees or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Selling Stockholders shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or in any such amendment or supplement in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, and further, provided, however, that the
Selling Stockholders shall not be liable to an Underwriter in respect of any
Preliminary
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Prospectus, or any amendment or supplement thereto, to the extent that both (i)
all of the untrue statements or alleged untrue statements or omissions or
alleged omissions of a material fact contained in any Preliminary Prospectus or
any amendment or supplement thereto were fully corrected in the Prospectus or in
an amendment or supplement thereto and (ii) the Prospectus, together with such
amendment or supplement, if any, was provided to such Underwriter by the Company
prior to the time the written confirmation of the sale of Stock to such person
was sent and was not sent or given to the purchaser of the stock in question by
such Underwriter at or prior to the written confirmation of the sale of Stock to
such person. The foregoing indemnity agreement is in addition to any liability
which the Selling Stockholders may otherwise have to any Underwriter or any
officer, employee or controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors, each person, if any, who controls the Company within the meaning of
the Securities Act, and each Selling Stockholder from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer, controlling person or
Selling Stockholder may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer, controlling person or Selling Stockholder for any legal or
other expenses reasonably incurred by the Company or any such director, officer,
controlling person or Selling Stockholder in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer, employee, controlling person or Selling
Stockholder.
(d) Promptly after receipt by an indemnified party under
this Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 10.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate
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therein and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriters
against the Company or the Subsidiaries or any Selling Stockholder under this
Section 10 if, in the reasonable judgment of the Representatives, it is
advisable for the Representatives and those Underwriters, officers, employees
and controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
Company or the Subsidiaries or such Selling Stockholder, it being understood
that the Company, the Subsidiaries and the Selling Stockholders shall not be
liable for the expenses of more than one separate counsel (together with local
counsel) in any one jurisdiction. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(e) If the indemnification provided for in this Section 10
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company, the Subsidiaries and the Selling Stockholders
on the one hand and the Underwriters on the other from the offering of the Stock
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, the Subsidiaries, and the Selling Stockholders on the one hand and
the Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company, the Subsidiaries and the Selling Stockholders on the
one hand and the Underwriters
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29
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock purchased
under this Agreement (before deducting expenses) received by the Company, the
Subsidiaries and the Selling Stockholders, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with respect
to the shares of the Stock purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of the shares of the Stock
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company, the Subsidiaries, the Selling Stockholders or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. For purposes of
the preceding two sentences, the net proceeds deemed to be received by the
Company shall be deemed to be also for the benefit of the Subsidiaries and
information supplied by the Company shall also be deemed to have been supplied
by the Subsidiaries. The Company, the Subsidiaries, the Selling Stockholders and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 10(e), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 10(e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Stock underwritten by it and distributed
to the public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission and no
Selling Stockholder shall be liable for any amount in excess of the proceeds to
such Selling Stockholder from the sale of Stock by such Selling Stockholder. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 10(e) are several in
proportion to their respective underwriting obligations and not joint.
(f) The Underwriters severally confirm and the Company and
the Selling Stockholders acknowledge that the statements with respect to the
public offering of the Stock by the Underwriters set forth on the cover page of,
the legend concerning over-allotments on the inside front cover page of and the
concession and reallowance figures appearing under the caption "Underwriting"
in, the Prospectus are correct and constitute the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
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11. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Stock which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of shares of the Firm Stock set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of shares of the Firm Stock set opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Stock on such Delivery Date if the total number
of shares of the Stock which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the total number of shares
of the Stock to be purchased on such Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of shares of the Stock which it agreed to purchase on such Delivery
Date pursuant to the terms of Section 3. If the foregoing maximums are exceeded,
the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representatives who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Stock to be purchased on such Delivery Date. If the
remaining Underwriters or other underwriters satisfactory to the Representatives
do not elect to purchase the shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such Delivery Date, this Agreement
(or, with respect to the Second Delivery Date, the obligation of the
Underwriters to purchase, and of the Company and the Option Selling Stockholders
to sell, the Option Stock) shall terminate without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholders, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 8 and 13. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 11, purchases Firm Stock which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company and the Selling Stockholders for
damages caused by its default. If other underwriters are obligated or agree to
purchase the Stock of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
12. Termination. The obligations of the Underwriters
hereunder may be terminated by the Representatives by notice given to and
received by the Company and the Selling Stockholders prior to delivery of and
payment for the Firm Stock if, prior to that time, any of the events described
in Sections 9(k) or 9(l), shall have occurred or if the Underwriters shall
decline to purchase the Stock for any reason permitted under this Agreement.
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13. Reimbursement of Underwriters' Expenses. If (a) the
Company or any Selling Stockholder shall fail to tender the Stock for delivery
to the Underwriters by reason of any failure, refusal or inability on the part
of the Company or such Selling Stockholder to perform any agreement on its or
his part to be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company or Selling
Stockholder is not fulfilled, the Company and the defaulting Selling Stockholder
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters in
connection with this Agreement and the proposed purchase of the Stock, and upon
demand the Company and the defaulting Selling Stockholder shall pay the full
amount thereof to the Representatives. If this Agreement is terminated pursuant
to Section 11 by reason of the default of one or more Underwriters, neither the
Company nor any Selling Stockholder shall be obligated to reimburse any
defaulting Underwriter on account of those expenses.
14. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered
or sent by mail, telex or facsimile transmission to Xxxxxx Brothers
Inc., Three World Financial Center, New York, New York 10285,
Attention: Syndicate Department (Fax: 212-526- 6588), with a copy,
in the case of any notice pursuant to Section 11(d), to the Director
of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc.,
0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company or to the Subsidiaries,
shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration
Statement, Attention: President (Fax: (000) 000-0000);
(c) if to any Selling Stockholder, shall be
delivered or sent by mail, telex or facsimile transmission to such
Selling Stockholder at the address set forth on Schedule 2 hereto;
provided, however, that any notice to an Underwriter pursuant to Section 10(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and the
Selling Stockholders shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Xxxxxx Brothers Inc. on behalf of the Representatives and the Company and the
Underwriters shall be entitled to act and rely upon any request, consent, notice
or agreement given or made on behalf of the Selling Stockholders by the
Custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
the Selling Stockholders and
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their respective personal representatives and successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company and the Selling Stockholders contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Securities Act and (B)
the indemnity agreement of the Underwriters contained in Section 10(c) of this
Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 15, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Subsidiaries, the Selling
Stockholders and the Underwriters contained in this Agreement or made by or on
behalf on them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Stock and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means any day on which the
New York Stock Exchange, Inc. is open for trading and (b) "Subsidiary" shall
mean [IDENTIFY SUBSIDIARIES BY NAME].
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
19. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the
Company, the Subsidiaries, the Selling Stockholders and the Underwriters, please
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
STAFF LEASING, INC.
By
-----------------------------------------
[Insert title of person executing
agreement]
[THE SUBSIDIARIES]
By
-----------------------------------------
[Insert title of person executing
agreement]]
The Selling Stockholders named in Schedule
2 to this Agreement
By
-----------------------------------------
Attorney-in-Fact
Accepted:
XXXXXX BROTHERS INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXXXXX SECURITIES
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By
---------------------------------
Authorized Representative
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SCHEDULE 1
Number of
Underwriters Shares
------------ ------
Xxxxxx Brothers Inc. ..........................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation............
Xxxxxxxxxx Securities..........................................
---------
Total 4,000,000
=========
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SCHEDULE 2
Number of Shares
of Stock
-----------------
Firm Selling Stockholder
[To Come]
Option Selling Stockholders
[To Come]
35
