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EXHIBIT 1.1
XXXXXXX CORPORATION
COMMON STOCK
(No Par Value)
UNDERWRITING AGREEMENT
July 22, 1997
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UNDERWRITING AGREEMENT
JULY 22, 1997
Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The Xxxxxxxx-Xxxxxxxx Company, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
00xx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
as Managing Underwriters
Dear Sirs:
Xxxxxxx Corporation, a Georgia corporation (the "Company"), proposes to
issue and sell and the persons named in Schedule B (the "Selling Shareholders")
propose to sell to the underwriters named in Schedule A (the "Underwriters") an
aggregate of 2,850,000 shares (the "Firm Shares") of Common Stock, no par value
(the "Common Stock"), of the Company, of which 2,500,000 shares are to be issued
and sold by the Company and an aggregate of 350,000 shares are to be sold by the
Selling Shareholders in the respective amounts set forth opposite their names in
Schedule B. In addition, solely for the purpose of covering overallotments, the
Company proposes to issue and sell, at the Underwriters' option, up to 427,500
additional shares of the Common Stock (the "Additional Shares"). The Additional
Shares and the Firm Shares are collectively referred to as the "Shares." The
Shares are described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus,
relating to the Shares, which incorporates by reference
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documents that the Company has filed or will file in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the "Exchange Act"). The Company has
furnished to you, for use by the Underwriters and by dealers, copies of one or
more preliminary prospectuses and all documents incorporated by reference
therein (each thereof, including the documents incorporated by reference, a
"Preliminary Prospectus") relating to the Shares. Except where the context
otherwise requires, the registration statement as in effect at the time of
execution of this Agreement or, if the registration statement is not yet
effective, as amended when it becomes effective, including all documents filed
as a part thereof or incorporated by reference therein, and including any
registration statement filed pursuant to Rule 462(b) under the Act increasing
the size of the offering registered under the Act and any information contained
in a prospectus subsequently filed with the Commission pursuant to Rule 424(b)
under the Act and deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is herein called the
"Registration Statement," and the prospectus, including all documents
incorporated therein by reference, in the form filed by the Company with the
Commission pursuant to Rule 424(b) under the Act or, if no such filing is
required, in the form of final prospectus included in the Registration Statement
at the time it became effective, is herein called the "Prospectus."
The Company, the Selling Shareholders and the Underwriters agree as
follows:
1. Sale and Purchase. On the basis of the representations and
warranties and the other terms and conditions herein set forth, each of the
Company and each of the Selling Shareholders, severally and not jointly, agrees
to sell to the respective Underwriters and each of the Underwriters, severally
and not jointly, agrees to purchase from the Company and each Selling
Shareholder the respective number of Firm Shares (subject to such adjustment as
you may determine to avoid fractional shares) which bears the same proportion to
the number of Firm Shares to be sold by the Company or by such Selling
Shareholders, as the case may be, as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A bears to the total number of
Firm Shares to be sold by the Company and the Selling Shareholders, in each case
at a purchase price of $30.64 per Share. You may release the Firm Shares for
public sale promptly after this Agreement becomes effective. You may from time
to time increase or decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, on the basis of the representations and
warranties and the other terms and conditions herein set forth, the Company
hereby grants to the several Underwriters an option to purchase, and the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company all or a portion of the Additional Shares as may be necessary to
cover overallotments made in connection with the offering of the Firm Shares, at
the same purchase price per share to be paid by the several Underwriters to the
Company for the Firm Shares. This option may be exercised in whole or in part
from time to time on or before the thirtieth day following the date hereof, by
written notice to the Company. Any such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised, and the
date and time
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when the Additional Shares are to be delivered (any such date and time being
herein referred to as an "additional time of purchase"); provided, however, that
no additional time of purchase shall occur earlier than the time of purchase (as
defined below) nor earlier than the second business day* after the date on which
the option shall have been exercised nor later than the eighth business day
after the date on which the option shall have been exercised. The number of
Additional Shares to be sold to each Underwriter at an additional time of
purchase shall be the number which bears the same proportion to the aggregate
number of Additional Shares being purchased at such additional time of purchase
as the number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A bears to the total number of Firm Shares (subject, in each case, to
such adjustment as you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Company and to the Attorney-in-Fact referred to
in Section 4(c) on behalf of the Selling Shareholders by wire transfer or
certified or official bank checks, in immediately available funds, at the office
of Xxxxxx, Read & Co. Inc. in New York City, against delivery of the
certificates for the Firm Shares to you for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 9:30 A.M., New York
City time, on July 28, 1997 (unless another time shall be agreed to by you, the
Company and the Selling Shareholders or unless postponed in accordance with the
provisions of Section 9). The time at which such payment and delivery are
actually made is called the "time of purchase." Certificates for the Firm Shares
shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the time
of purchase.
Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the
additional time of purchase.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) Each Preliminary Prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act; when the
Registration Statement becomes or became effective and at all times
subsequent thereto up to the time of purchase and the additional time
of purchase, the Registration Statement and the Prospectus, and any
supplements or amendments thereto, complied and will comply in all
material respects with the provisions of the Act; and the Registration
Statement at all such times did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the
------------------------------
* As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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statements therein not misleading, and the Prospectus at all such times
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representation or warranty with respect to any
statement contained in the Registration Statement or the Prospectus in
reliance upon and in conformity with information concerning (i) the
Underwriters and furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use in the
Registration Statement or the Prospectus and set forth in the section
of the Registration Statement and the Prospectus entitled
"Underwriting" or (ii) the Selling Shareholders and furnished in
writing by or on behalf of any Selling Shareholder to the Company
expressly for use in the Registration Statement or the Prospectus and
set forth in the section of the Registration Statement and the
Prospectus entitled "Principal and Selling Shareholders;" the documents
incorporated by reference in the Prospectus, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Exchange Act; no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued, and no proceeding for that purpose has been instituted or
threatened in writing, by the Commission or by the state securities or
blue sky authority of any jurisdiction.
(b) As of the date of this Agreement, the
Company has an authorized capitalization as set forth in the section of
the Registration Statement and the Prospectus entitled
"Capitalization;" all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable and there are no statutory preemptive
rights or contractual preemptive rights as a result of any contract to
which the Company is a party.
(c) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of
the State of Georgia with full power and authority to (i) own its
properties and conduct its business as described in the Registration
Statement and the Prospectus and (ii) execute and deliver this
Agreement and to issue, sell and deliver the Shares to be sold by it as
herein contemplated.
(d) Except as shown on Schedule C or described
in the Prospectus, all of the shares of capital stock of the
subsidiaries listed on Schedule C (collectively, the "Subsidiaries")
are owned directly or indirectly by the Company.
(e) Each of the corporate Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, each with
full corporate or partnership power and authority to own its properties
and to conduct its businesses.
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(f) Each of the Company and the Subsidiaries is
duly qualified and is in good standing in each jurisdiction where the
nature of its business or the character of its properties make such
qualification necessary, except jurisdictions in which the failure,
individually or in the aggregate, to be so qualified would not be
likely to have a material adverse effect on the business, financial
condition or results of operations of the Company and the Subsidiaries
taken as a whole (a "Material Adverse Effect"); each of the Company and
the Subsidiaries is in compliance in all material respects with the
laws, orders, rules, regulations and directives issued or administered
by each such jurisdiction.
(g) Neither the Company nor any of the
Subsidiaries is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time or both would constitute a
breach of, or default under), its charter or bylaws or limited
partnership agreement, or in the performance or observance of any
obligation, agreement, covenant or condition contained in any license,
indenture, lease, mortgage, deed of trust, bank loan or credit
agreement, material supply agreement or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which
any of them may be bound, which breach or default would be likely to
have a Material Adverse Effect. The execution, delivery and performance
of this Agreement, the issuance of the Shares to be sold by the Company
hereunder and the consummation of the transactions contemplated hereby
will not conflict with, or result in any breach of or constitute a
default under (nor constitute any event which with notice, lapse of
time or both would constitute a breach of, or default under), the
charter or bylaws or limited partnership agreement of the Company or
any of the Subsidiaries or under any provision of any license,
indenture, lease, mortgage, deed of trust, bank loan or credit
agreement, material supply agreement or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which
any of them or their properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or any of the Subsidiaries,
which breach or default would be likely to have a Material Adverse
Effect.
(h) The Firm Shares to be sold by the Company
hereunder and the Additional Shares, when issued and delivered to and
paid for by the Underwriters as contemplated hereby, will be duly
authorized and validly issued and fully paid and nonassessable, free
and clear of any pledge, lien, encumbrance, security interest,
preemptive right or other claim.
(i) This Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited
by federal or state securities or blue sky laws and except as the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally or general principles of equity.
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(j) The capital stock of the Company, including
the Shares, conforms in all material respects to the description
thereof contained in the Registration Statement and the Prospectus and
the certificates for the shares of Common Stock are in due and proper
form under the rules and regulations of the New York Stock Exchange
(the "NYSE") and the laws of the State of Georgia; all offers and sales
by the Company of its capital stock since August 2, 1994 were at all
relevant times registered under the Act or exempt from the registration
requirements of the Act, and were registered under the applicable state
securities or blue sky laws or exempt from the registration
requirements of such laws.
(k) No approval, authorization, consent or order
of or filing with any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency is required to
be obtained by the Company in connection with the issuance and sale of
the Shares as contemplated hereby, other than registration of the
Shares under the Act, clearance of the offering of the Shares with the
National Association of Securities Dealers, Inc. (the "NASD") and any
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters.
(l) No person has the right, contractual or
otherwise, to cause the Company to issue to it, or, except as disclosed
in the Registration Statement and the Prospectus, to register pursuant
to the Act, any securities of the Company in consequence of the issue
and sale of the Shares to the Underwriters hereunder nor does any
person have preemptive rights, rights of first refusal or other rights
to purchase any of the Shares. Each person who has the right,
contractual or otherwise, to cause the Company to register pursuant to
the Act any securities of the Company in consequence of the issue and
sale of the Shares to the Underwriters hereunder either included such
securities in the Registration Statement or duly waived such right.
(m) Xxxxxx Xxxxxxxx LLP, whose reports on the
consolidated financial statements of the Company and the Subsidiaries
are included or incorporated by reference in the Registration Statement
and the Prospectus, has been retained by the Company and has
represented to the Company that they are independent public accountants
with respect to the Company as required by the Act and the applicable
published rules and regulations thereunder.
(n) All legal or governmental proceedings,
contracts, documents or understandings of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement have been so
described or filed as required.
(o) There is no action, suit or proceeding
pending or threatened in writing against the Company or any of the
Subsidiaries or any of their properties, at law or in equity, or before
or by any federal, state, local or foreign
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governmental or regulatory commission, board, body, authority or agency
that would be reasonably likely to result in a judgment, decree or
order having a Material Adverse Effect.
(p) The audited and unaudited financial
statements (including the related notes) included in the Registration
Statement and the Prospectus present fairly in all material respects
the consolidated financial condition of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Company and the Subsidiaries for the
periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved.
(q) Subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, and except as may be otherwise stated in the Registration
Statement or the Prospectus, there has not been: (i) any material
adverse change in the business, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole; (ii)
any transaction, that is material to the Company and the Subsidiaries
taken as a whole, contemplated or entered into by the Company or any of
the Subsidiaries; or (iii) any obligation, contingent or otherwise,
directly or indirectly incurred by the Company or any of the
Subsidiaries that is material to the Company and the Subsidiaries taken
as a whole.
(r) The Company has obtained the agreement of
the directors, executive officers and shareholders listed on Schedule D
not to offer, sell, contract to sell, grant any option to sell,
transfer or otherwise dispose of, directly or indirectly, any shares of
Common Stock, or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase
Common Stock for a period of 90 days from the date of the Prospectus
without the prior written consent of Xxxxxx, Read & Co. Inc., except
for (i) sales of any Shares to the Underwriters pursuant to this
Agreement, (ii) a gift or gifts, provided the donees thereof agree in
writing as a condition precedent to such gift or gifts to be bound by
the foregoing restrictions or (iii) a transfer or transfers to their
affiliates, as such term is defined in Rule 405 promulgated under the
Act, provided that each transferee agrees in writing as a condition
precedent to such transfer or transfers to be bound by the foregoing
restrictions.
(s) Neither the Company nor any of the
Subsidiaries has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules
and
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regulations promulgated thereunder, which in each case would be
reasonably likely to result in a Material Adverse Effect.
(t) Each of the Company and the Subsidiaries has
such permits, licenses, franchises and authorizations of governmental
or regulatory authorities ("permits") as are necessary to own, lease
and operate its respective properties and to conduct its business; the
Company and each of the Subsidiaries has fulfilled and performed all of
its material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit.
(u) To the knowledge of the Company, the effect
of Environmental Laws on the business, operations and properties of the
Company and the Subsidiaries, and associated costs and liabilities
(including without limitation any capital or operating expenditure
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties), singly or in the aggregate, do not and would not have a
Material Adverse Effect.
(v) To the knowledge of the Company, neither the
Company nor any of the Subsidiaries, nor any employee of the Company or
any of the Subsidiaries, has made any payment of funds of the Company
or any of the Subsidiaries prohibited by law, and no funds of the
Company or any of the Subsidiaries have been set aside to be used for
any payment prohibited by law.
(w) The Company and the Subsidiaries have filed
all federal or state income or franchise tax returns required to be
filed and have paid all taxes shown thereon as due, except for such
failures as would not be likely to result in a Material Adverse Effect,
and there is no tax deficiency which has been or might reasonably be
expected to be asserted against the Company which would be likely to
result in a Material Adverse Effect.
(x) Except as disclosed in the Prospectus, the
Company has not incurred any liability for any finder's fees or similar
payments in connection with the transactions herein contemplated.
(y) The property held under lease by the Company
or any of the Subsidiaries is held under valid and subsisting leases
enforceable against the Company or any of the Subsidiaries with such
exceptions that would not have a Material Adverse Effect.
(z) Neither the Company nor any of the
Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or is subject to regulation
under such Act.
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(aa) The Company is not aware of any existing or
imminent labor dispute with employees of the Company or any of the
Subsidiaries which might be expected to have a Material Adverse Effect.
(bb) The Company or one of the Subsidiaries owns
or possesses, or can acquire on reasonable terms, the patents, patent
rights, licenses, inventions, copyrights, know how (including trade
secrets and other unpatented and unpatentable proprietary or
confidential information, systems or procedures), trade marks, service
marks and trade names presently employed by the Company or any of the
Subsidiaries in connection with the business now operated by it, and
neither the Company nor any of the Subsidiaries has received any notice
of continuing infringement of or continuing conflict with asserted
rights of others with respect to any of the foregoing which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
4. Representations and Warranties of the Selling Shareholders.
Each Selling Shareholder, severally and not jointly, represents and warrants to
each Underwriter that:
(a) Such Selling Shareholder is and at the time
of delivery of the Shares will be the owner of the number of Shares or
securities convertible into or options exercisable for the number of
Shares to be sold by such Selling Shareholder pursuant to this
Agreement and, at the time of delivery thereof, will have valid title
to such Shares, and upon delivery of and payment for such Shares the
Underwriters will acquire valid title to such Shares free and clear of
any claim, lien, encumbrance, security interest, community property
right, restriction on transfer or other defect in title, assuming each
of the Underwriters has purchased the Shares purchased by it in good
faith and without notice of any adverse claim.
(b) Such Selling Shareholder has and at the time
of delivery of such Shares will have full legal right, power and
capacity, and any approval required by law to sell, assign, transfer
and deliver such Shares in the manner provided in this Agreement.
(c) This Agreement has been duly executed and
delivered by such Selling Shareholder and is a valid and binding
agreement of such Selling Shareholder, enforceable in accordance with
its terms, except as rights to indemnity and contribution hereunder may
be limited by federal or state blue sky laws and except as the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditor's rights
generally and general principles of equity. The Custody Agreement and
Power of Attorney (the "Custody Agreement and Power of Attorney") by
and among the Selling Shareholders, Xxxx X. Xxxx, Esq., as
Attorney-in-Fact for and on behalf of the Selling Shareholders (the
"Attorney-in-Fact") and Xxxxxxxx Xxxxxxx LLP,
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as Custodian, has been duly executed and delivered by such Selling
Shareholders and is a valid and binding agreement of such Selling
Shareholders, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(d) Such Selling Shareholder has duly and
irrevocably authorized the Attorney-in-Fact, on behalf of such Selling
Shareholder, to execute and deliver this Agreement and any other
document necessary or desirable in connection with the transactions
contemplated hereby and to deliver the Shares to be sold by such
Selling Shareholder and receive payment therefor pursuant hereto.
(e) All information furnished in writing by or
on behalf of such Selling Shareholder to the Company specifically for
use in the Registration Statement and the Prospectus, and any
supplement or amendment thereto, is and will be when the Registration
Statement became effective and at all times subsequent thereto up to
the time of purchase, did not and will not contain any untrue statement
of material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) The consummation of the transactions
contemplated hereby and by the Custody Agreement and Power of Attorney
and the fulfillment of the terms hereof and thereof will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, agreement or instrument known
to such Selling Shareholder to which any of the property of such
Selling Shareholder is subject, or any order, rule or regulation known
to such Selling Shareholder of any court or governmental agency or body
having jurisdiction over such Selling Shareholder or any of such
Selling Shareholder's property.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be
required and otherwise to cooperate in qualifying the Shares for
offering and sale under the securities or blue sky laws of such states
as you may designate and to maintain such qualifications in effect as
long as required for the distribution of the Shares, provided that the
Company shall not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such state
(except service of process with respect to the offering and sale of the
Shares) or to subject itself to taxation in any new jurisdiction;
promptly to advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or written threat
of any proceeding for such purpose; and to use its reasonable best
efforts to obtain the withdrawal of any order of suspension at the
earliest practicable moment;
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(b) to make available to you in New York City,
as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendment or
supplement thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act;
(c) to advise you promptly and if requested by
you to confirm such advice in writing, (i) when the Registration
Statement has become effective and when any post-effective amendment
thereto becomes effective and (ii) if Rule 430A under the Act is used,
when the Prospectus is filed with the Commission pursuant to Rule
424(b) under the Act, if required under the Act (which the Company
agrees to file in a timely manner under such Rule);
(d) to advise you promptly, confirming such
advice in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information with respect thereto, or of notice of
institution of proceedings for or the entry of a stop order suspending
the effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to use its reasonable best efforts to obtain
the lifting or removal of such order as soon as possible; to advise you
promptly of any proposal to amend or supplement the Registration
Statement or the Prospectus, including by filing any document that
would be incorporated therein by reference, and to file no such
amendment or supplement to which you shall reasonably object in
writing;
(e) to furnish to you and, upon request to each
of the other Underwriters, for a period of five years from the date of
this Agreement (i) copies of all reports or other communications that
the Company shall send to its shareholders or from time to time shall
publish or publicly disseminate and (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar form as may be designated by the
Commission;
(f) to advise the Underwriters promptly of the
happening of any event known to the Company within the time during
which a prospectus relating to the Shares is required to be delivered
under the Act that, in the reasonable judgment of the Company, would
require the making of any change in the Prospectus then being used, or
in the information incorporated therein by reference, so that the
Prospectus, as then supplemented, would not include an untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they are made, not misleading and, during such time, promptly to
prepare and furnish,
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at the Company's expense, to the Underwriters such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change in such quantities as requested by the Underwriters, and to
furnish to you a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission;
(g) to make generally available to its security
holders, and to deliver to you, an earnings statement of the Company
(which need not be audited and which will satisfy the provisions of
Section 11(a) of the Act including, at the option of the Company, Rule
158) covering a period of 12 months beginning after the effective date
of the Registration Statement but ending not later than 15 months after
the date of the Registration Statement, as soon as is reasonably
practicable after the termination of such 12-month period;
(h) to furnish to you four signed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient conformed copies of
the foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(i) to furnish to you as early as practicable
prior to the time of purchase and the additional time of purchase, as
the case may be, but not later than two business days prior thereto, a
copy of the latest available unaudited interim consolidated financial
statements, if any, of the Company and the Subsidiaries that have been
read by the Company's independent certified public accountants as
stated in their letter to be furnished pursuant to Section 8(b);
(j) to apply the net proceeds from the sale of
the Shares sold by the Company in the manner set forth under the
caption "Use of Proceeds" in the Registration Statement and the
Prospectus;
(k) to use its best efforts to cause the Shares
to be sold by the Company hereunder to be listed for trading on the
NYSE upon official notice of issuance;
(l) whether or not the transactions contemplated
in this Agreement are consummated or this Agreement otherwise becomes
effective or is terminated, to pay all expenses, fees and taxes (other
than (x) any transfer taxes and (y) fees and disbursements of your
counsel except as set forth under Section 5 and clauses (iii) and (iv)
below) in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus and
any amendment or supplement thereto, and the printing and furnishing of
copies of each thereof to you and to dealers (including costs of
mailing and shipment), (ii) the issuance, sale and delivery of the
Shares, (iii) the word processing or printing of this Agreement and any
dealer agreements, and the reproduction or
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printing and furnishing of copies of each thereof to you and to dealers
(including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under state laws as aforesaid
(including legal fees and filing fees and other disbursements of your
counsel) and the printing and furnishing of copies of any blue sky
surveys to you and to dealers, (v) any listing of the Shares on the
NYSE, (vi) the filing fee for review of the public offering of the
Shares by the NASD and (viii) the performance of the Company's and the
Selling Shareholders' other obligations hereunder;
(m) not to sell, contract to sell, grant any
option to sell, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into
or exchangeable for Common Stock or warrants or other rights to
purchase Common Stock or permit the registration under the Act of any
shares of Common Stock, except for (i) the registration of the Shares
and the sales to you pursuant to this Agreement, (ii) the issuance of
shares of Common Stock upon the exercise of stock options outstanding
on the date hereof, (iii) options granted to its directors, officers
and employees under existing stock option plans, (iv) the issuance of
shares of Common Stock under existing employee benefit plans registered
pursuant to a registration statement on Form S-8, and (v) the issuance
of shares of Common Stock as consideration for future acquisitions,
provided that each recipient of such shares agrees to be subject to the
transfer restrictions imposed by this section for a period commencing
on the date hereof and continuing for 90 days after the date of the
Prospectus, without the prior written consent of Xxxxxx, Read & Co.
Inc.; and
(n) to refrain from investing the proceeds from
the sale of the Shares in a manner to cause the Company or any of the
Subsidiaries to become an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
6. Certain Covenants of the Selling Shareholders. Each Selling
Shareholder agrees with each Underwriter that:
(a) such Selling Shareholder will not offer,
sell, contract to sell, grant any option to sell, transfer or otherwise
dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock for a period
commencing on the date hereof and continuing for 90 days after the date
of the Prospectus, without the prior written consent of Xxxxxx, Read &
Co. Inc., except for (i) sales of any Shares to the Underwriters
pursuant to this Agreement, (ii) a gift or gifts, provided the donee or
donees thereof agree in writing as a condition precedent to such gift
or gifts to be bound by the foregoing restrictions or (iii) a transfer
or transfers to their affiliates, as such term is defined in Rule 405
promulgated under the Act, provided that each transferee agrees in
writing as a condition precedent to such transfer or transfers to be
bound by the foregoing restrictions; and
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(b) the Shares represented by the certificates
held in custody pursuant to the Custody Agreement and Power of Attorney
are for the benefit of and coupled with and subject to the interests of
the Underwriters and the Selling Shareholders hereunder, and the
arrangement for such custody and the appointment of the
Attorney-in-Fact pursuant to the Custody Agreement and Power of
Attorney is irrevocable; the obligations of the Selling Shareholders
shall not be terminated by operation of law, whether by the death or
incapacity of such Selling Shareholder, or any other event; if such
Selling Shareholder should die or become incapacitated or any other
event occur before the delivery of the Shares hereunder, certificates
for the Shares to be sold by such Selling Shareholder shall be
delivered on behalf of such Selling Shareholder in accordance with the
terms and conditions of this Agreement and the Custody Agreement and
Power of Attorney, and action taken by the Attorney-in-Fact under the
Custody Agreement and Power of Attorney shall be as valid as if such
death, incapacity or other event had not occurred, whether or not the
Custodian or the Attorney-in-Fact shall have notice of such death,
incapacity or other event.
7. Reimbursement of Underwriters' Expenses. If the Firm Shares or
the Additional Shares are not delivered for any reason, other than the failure
of the Underwriters to purchase the Firm Shares or the Additional Shares as
provided herein (unless such failure is permitted under the provisions of
Section 8 of this Agreement), the Company will reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of their counsel.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Shareholders on the date hereof and at the time of purchase (and the several
obligations of the Underwriters at any additional time of purchase are subject
to the accuracy of the representations and warranties on the part of the Company
and the Selling Shareholders on the date hereof and at the time of purchase and
at such additional time of purchase, as the case may be), the performance by
each of the Company and the Selling Shareholders of its and their obligations
hereunder and to the following conditions:
(a) The Company shall furnish to you at the time
of purchase and at such additional time of purchase, as the case may
be, an opinion of Xxxxxxxx Xxxxxxx LLP, counsel for the Company and the
Selling Shareholders, addressed to the Underwriters and dated the time
of purchase or such additional time of purchase, as the case may be,
with reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to Powell, Goldstein, Xxxxxx & Xxxxxx LLP,
counsel for the Underwriters, stating that:
(i) The Company and each of its
material corporate Subsidiaries listed on Schedule E has been duly
incorporated and is an existing corporation in good standing under the
laws of its jurisdiction of incorporation,
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and the limited partnership Subsidiary listed on Schedule E
(collectively with the material corporate Subsidiaries, the "Material
Subsidiaries") has been duly formed and is existing and in good
standing as a limited partnership under the Revised Uniform Limited
Partnership Act of the State of Delaware, each with full corporate or
partnership power and authority to conduct its business as described in
the Registration Statement and Prospectus. The Company, each of the
Material Subsidiaries and each of American Technical Resources, Inc.,
HCA-Home Care Services, Inc. and Xxxxxxx Health Care of New York, Inc.
is duly qualified to do business in each jurisdiction in which it owns
or leases real property or in which the conduct of its business
requires such qualification, except where the failure to be so
qualified, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial position
or results of operations of the Company and the Material Subsidiaries
taken as a whole. All of the outstanding shares of capital stock of
each of the corporate Material Subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable. All of
outstanding shares of capital stock of each of the corporate Material
Subsidiaries and each of American Technical Resources, Inc., HCA-Home
Care Services, Inc. and Xxxxxxx Health Care of New York, Inc. (except
as otherwise stated in the Registration Statement) are owned
beneficially by the Company subject to no perfected security interest
and, to the knowledge of such counsel, no security interest, other
encumbrance or adverse claim except that all of the outstanding shares
of capital stock of the corporate Material Subsidiaries, American
Technical Resources, Inc., HCA-Home Care Services, Inc. and Xxxxxxx
Health Care of New York, Inc. are pledged to secure the Company's
obligations under its bank credit agreement; and the Partnership
Agreement of HealthTask, L.P. is a valid and binding obligation of the
Company.
(ii) The Company has the authorized
capitalization as set forth in the Prospectus, and all of the
outstanding shares of capital stock of the Company issued subsequent to
the Company's initial public offering (including the Shares if issued
subsequent to such initial public offering) have been duly authorized
and validly issued, are fully paid and non-assessable and conform to
the description thereof in the Prospectus; and the shareholders of the
Company have no statutory preemptive rights or contractual preemptive
rights (as a result of any contract to which the Company is a party)
with respect to the Shares to be sold by the Company under the
Company's articles of incorporation or by-laws or, to the knowledge of
such counsel, under any agreement, license, indenture, lease, mortgage,
deed of trust, or other instrument filed by the Company as an exhibit
to any registration statement or report filed with the Commission
pursuant to the Act or the Exchange Act (collectively, "material
agreements"). To such counsel's knowledge, except as set forth in the
Registration Statement, no options, warrants or other rights to
purchase from the Company, agreements or other obligations of the
Company to issue or other rights to cause the Company to convert any
obligation into, or exchange any securities for, shares of capital
stock or ownership interest in the Company are outstanding. To such
counsel's knowledge, neither the filing of the Registration Statement
or any amendment
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thereto nor the offer and sale of the Shares to the Underwriters as
contemplated by this Agreement gives rise to any rights, other than
those which have been satisfied or duly and validly waived, for or
relating to the registration under the Act of any shares of capital
stock of the Company (including shares issuable upon the exercise of
outstanding options, warrants or other rights to purchase or other
obligations or securities convertible into or exchangeable for, shares
of such capital stock), or any other securities of the Company or any
securities of any affiliate of the Company or any of its controlling
shareholders.
(iii) The Registration Statement has
become effective under the Act and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission.
(iv) Each part of the Registration
Statement, when such part became effective, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof with the
Commission, complied as to form in all material respects with the
requirements of the Act.
(v) The descriptions in the
Registration Statement and Prospectus of statutes, legal and
governmental proceedings, contracts and other documents fairly present
in all material respects the information required to be shown; and such
counsel does not know of any statutes or legal or governmental
proceedings required to be described in the Prospectus that are not
described as required, or of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or
to be filed as exhibits to the Registration Statement that are not
described and filed as required.
(vi) This Agreement has been duly
authorized, executed and delivered by the Company; the performance of
this Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the
terms and provisions of any statute or any material agreement, the
articles of incorporation or by-laws of the Company and the corporate
Material Subsidiaries or the agreement and the certificate of limited
partnership of the Material Subsidiary which is a partnership, or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or the
Material Subsidiaries or any of their properties (except that such
opinion shall not constitute an opinion as to compliance with the
anti-fraud provisions of federal or state securities laws); and no
consent, approval, authorization or order of, or filing with, any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance or sale of the Shares to be sold by the Company, except such
as have been obtained under the Act and such as may be required by the
NASD and under state securities laws in connection with the purchase
and distribution of the Shares by the Underwriters.
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(vii) To the knowledge of such counsel,
there is not pending or threatened in writing any action, suit or
proceeding with respect thereto to which the Company or the Material
Subsidiaries is a party, before or by any court or governmental or
arbitrational official, agency or body that would be reasonably likely
to have a Material Adverse Effect, or that might affect the issuance or
validity of the Shares to be sold by the Company, or that is required
to be disclosed in the Prospectus which is not disclosed as required.
(viii) This Agreement has been duly
executed and delivered by the Attorney-in-Fact on behalf of each
Selling Shareholder, such Attorney-in-Fact has been duly and validly
authorized to carry out all transactions contemplated herein on behalf
of each Selling Shareholder; and the performance of this Agreement by
the Selling Shareholders and the consummation by the Selling
Shareholders of the transactions herein contemplated will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any agreement or instrument
known to such counsel to which any of the Shares of any of the Selling
Shareholders is subject, or any order, rule or regulation known to such
counsel of any court or governmental agency or body having jurisdiction
over any of the Selling Shareholders or any of their property; and no
consent, approval, authorization or order of, or filing with, any court
or governmental agency or bodies is required for the consummation of
the transactions contemplated by this Agreement in connection with the
sale of Shares to be sold by the Selling Shareholders hereunder, except
such as have been obtained under the Act or from the NASD and such as
may be required under state securities laws in connection with the
purchase and distribution of such Shares by the Underwriters.
(ix) The Underwriters will, assuming the
Underwriters have purchased such Shares from the Selling Shareholders
in good faith and without notice of any adverse claim, acquire valid
title to such Shares, free of any adverse claim (including any claim
arising under any voting trust arrangement, lien or security interest)
and any restriction on transfer imposed by the Company or, to our
knowledge, any other person.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company,
certain of the Selling Shareholders and representatives of the Underwriters at
which the contents of the Registration Statement and the Prospectus were
discussed and, although such counsel has not undertaken to verify the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus and is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except for the
statements in the Registration Statement or the Prospectus relating to the
description of the capital stock of the
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Company to the extent addressed in paragraph 2 above, and the Shares insofar as
such statements concern legal matters), on the basis of the foregoing nothing
has come to the attention of such counsel that causes them to believe that the
Registration Statement or any amendment thereto at the time such Registration
Statement or amendment became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as it may be supplemented, at the date of such Prospectus or such
supplement, and at all times up to and including the Closing Date contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (it being
understood in each case that such counsel need express no opinion with respect
to the financial statements and schedules and other financial and statistical
data included in the Registration Statement or Prospectus).
(b) The Company shall furnish to you at the time
of purchase and at such additional time of purchase, as the case may
be, an opinion of Xxxxx Xxxxxxxxxx, New York counsel for the Company,
addressed to the Underwriters and dated the time of purchase or such
additional time of purchase, as the case may be, with reproduced copies
for each of the other Underwriters and in form reasonably satisfactory
to Powell, Goldstein, Xxxxxx & Xxxxxx LLP, counsel for the
Underwriters, stating that:
(i) Each of the material corporate
subsidiaries listed on Schedule F (the "New York Subsidiaries") has
been duly incorporated and is an existing corporation in good standing
under the laws of New York, each with full corporate power and
authority to conduct its business as described in the Registration
Statement and Prospectus; and all of the outstanding shares of capital
stock of each of the New York Subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable.
(ii) The performance of this Agreement
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of
any New York statute, the articles of incorporation or by-laws of the
New York Subsidiaries, or any New York rule or regulation known to such
counsel of any governmental agency or body having jurisdiction over the
New York Subsidiaries (except that such opinion shall not constitute an
opinion as to compliance with the anti-fraud provisions of federal or
state securities laws).
(c) The Company shall furnish to you at the time
of purchase and at such additional time of purchase, as the case may
be, an opinion of Williams, Mullen, Christian & Xxxxxxx, Virginia
counsel for the Company addressed to the Underwriters and dated the
time of purchase or such additional time of purchase, as the case may
be, with reproduced copies for each of the other
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Underwriters and in form reasonably satisfactory to Powell, Goldstein,
Xxxxxx & Xxxxxx LLP, counsel for the Underwriters, stating that:
(i) American Technical Resources, Inc.
("ATRI") has been duly incorporated and is an existing corporation in
good standing under the laws of the Commonwealth of Virginia, with full
corporate power and authority to conduct its business as described in
the Registration Statement and Prospectus; and all of the outstanding
shares of capital stock of ATRI have been duly authorized and validly
issued, are fully paid and non-assessable.
(ii) The performance of this Agreement
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of
any Virginia statute, the articles of incorporation or by-laws of ATRI,
or any Virginia rule or regulation known to such counsel of any
governmental agency or body having jurisdiction over ATRI (except that
such opinion shall not constitute an opinion as to compliance with the
anti-fraud provisions of federal or state securities laws).
(d) The Company shall furnish to you at the time
of purchase and or such additional time of purchase, as the case may
be, an opinion of Xxxxx, Xxxxxxxx and Xxxxxxx, LLP, special counsel for
the Company, addressed to the Underwriters and dated the time of
purchase or such additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters in form reasonably
satisfactory to Powell, Goldstein, Xxxxxx & Xxxxxx LLP, counsel for the
Underwriters, stating that the Company and Material Subsidiaries have
the adequate right to use the material trademarks, trade names, service
marks, service names and copyrights used by them, and, to such
counsel's knowledge, have not received any notice in conflict with the
asserted rights of others in respect thereof where the lack of such
right might reasonably be expected to have a Material Adverse Effect.
(e) You shall have received from Xxxxxx Xxxxxxxx
LLP letters dated, respectively, the date of this Agreement and the
time of purchase and additional time of purchase, as the case may be,
and addressed to the Underwriters (with reproduced copies for each of
the Underwriters) in form and substance reasonably satisfactory to the
Managing Underwriters.
(f) You shall have received at the time of
purchase and at the additional time of purchase, as the case may be,
opinions from Powell, Goldstein, Xxxxxx & Xxxxxx LLP in form and
substance reasonably satisfactory to you.
(g) No amendment or supplement to the
Registration Statement or the Prospectus, including documents deemed to
be incorporated by reference
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therein, shall be filed prior to the time the Registration Statement
becomes effective to which you shall have reasonably objected in
writing.
(h) The Registration Statement shall become
effective at or before 5:00 P.M., New York City time, on the date of
this Agreement and, if Rule 430A under the Act is used, the Prospectus
shall have been filed with the Commission pursuant to Rule 424(b) under
the Act at or before 5:00 P.M., New York City time, on the second full
business day after the date of this Agreement; provided, however, that
the Company, the Selling Shareholders and you and any group of
Underwriters, including you, who have agreed hereunder to purchase in
the aggregate at least 50% of the Firm Shares from time to time may
agree in writing or by telephone, confirmed in writing, on a later
date.
(i) Prior to the time of purchase or the
additional time of purchase, as the case may be: (i) no stop order with
respect to the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings initiated under Section 8(d)
or 8(e) of the Act; (ii) the Registration Statement and all amendments
thereto, or modifications thereof, if any, shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and (iii) the Prospectus and all amendments or supplements
thereto, or modifications thereof, if any, shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(j) Between the time of execution of this
Agreement and the time of purchase or the additional time of purchase,
as the case may be, there has not been: (i) any material and adverse
change in the business, financial condition or results of operations of
the Company and the Subsidiaries taken as a whole; (ii) any transaction
that is material to the Company and the Subsidiaries taken as a whole
contemplated or entered into by the Company or any of the Subsidiaries;
or (iii) any obligation, contingent or otherwise, directly or
indirectly, incurred by the Company or any of the Subsidiaries that is
material to the Company and the Subsidiaries taken as a whole.
(k) The Company, at the time of purchase or
additional time of purchase, as the case may be, shall have delivered
to you a certificate of two of the executive officers of the Company to
the effect that the representations and warranties of the Company as
set forth in this Agreement are true and correct as of each such date
and the conditions set forth in Section 8(i) and Section 8(j) have been
met.
(l) You shall have received a signed letter,
dated the date of this Agreement, from each of the directors, executive
officers and shareholders listed in Schedule D to the effect that such
persons shall not offer, sell, contract to
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sell, grant any option to sell, transfer or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
warrants or other rights to purchase Common Stock for a period of 90
days from the date of the Prospectus without the prior written consent
of Xxxxxx, Read & Co. Inc., except for (i) sales of any Shares to the
Underwriters pursuant to this Agreement, (ii) a gift or gifts, provided
the donee or donees thereof agree in writing as a condition precedent
to such gift or gifts to be bound by the foregoing restrictions or
(iii) a transfer or transfers to their affiliates, as such term is
defined in Rule 405 promulgated under the Act, provided that each
transferee agrees in writing as a condition precedent to such transfer
or transfers to be bound by the foregoing restrictions.
(m) The Company and the Selling Shareholders
shall have furnished to you such other documents and certificates as to
the accuracy and completeness of any statement in the Registration
Statement or the Prospectus as of the time of purchase and the
additional time of purchase, as the case may be, as you reasonably may
request.
(n) The Company and the Selling Shareholders
shall have performed such of their respective obligations under this
Agreement as are to be performed by the terms hereof at or before the
time of purchase and at or before the additional time of purchase, as
the case may be.
(o) The Shares shall have been listed for
trading on the NYSE upon official notice of issuance.
(p) At the time of purchase, you shall have
received from each Selling Shareholder a certificate (which may be
signed by the Attorney-in-Fact), to the effect that the representations
and warranties of such Selling Shareholder as set forth in this
Agreement are true and correct as of such date.
(q) On or prior to the date hereof, the NYSE
shall have approved the Underwriters' participation in the distribution
of the Shares to be sold by the Selling Shareholders.
9. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective (i) if
Rule 430A under the Act is not used, when you shall have received
notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have
executed and delivered this Agreement.
(b) The obligations of the several Underwriters
hereunder shall be subject to termination in the absolute discretion of
you or any group of Underwriters (which may include you) which has
agreed to purchase in the aggregate at least 50% of the Firm Shares if,
at any time prior to the time of
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purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities
on the NYSE shall have been suspended or minimum prices shall have been
established on the NYSE or if a banking moratorium shall have been
declared either by the United States or New York State authorities, or
if the United States shall have declared war in accordance with its
constitutional processes or there shall have occurred any material
outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on, or
any material adverse change in, any financial market which, in each
case, in your judgment or in the judgment of such group of
Underwriters, makes it impracticable to market the Shares. If you or
any group of Underwriters elect to terminate this Agreement as provided
in this Section 9(b), the Company, the Selling Shareholders and each
other Underwriter shall be notified promptly by letter or telegram.
(c) If any Underwriter shall default in its
obligation to take up and pay for the Firm Shares to be purchased by it
hereunder and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not
exceed 10% of the total number of Firm Shares, the non-defaulting
Underwriters shall take up and pay for (in addition to the aggregate
principal amount of Firm Shares they are obligated to purchase pursuant
to Section 1) the number of Firm Shares agreed to be purchased by all
such defaulting Underwriters as hereinafter provided. Such Shares shall
be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as you may designate with the
consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate
number of Firm Shares set opposite the names of such non-defaulting
Underwriters in Schedule A.
(d) If any Underwriter shall default in its
obligation to take up and pay for the Firm Shares to be purchased by it
hereunder and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for exceeds
10% of the total number of Firm Shares, and arrangements satisfactory
to you and the Company are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter.
(e) Without relieving any defaulting Underwriter
from its obligations hereunder, the Company agrees with the
non-defaulting Underwriters that it will not sell any Firm Shares
hereunder unless all of the Firm Shares are purchased by the
Underwriters (or by substituted underwriters selected by you with the
approval of the Company or selected by the Company with your approval
pursuant to Section 9(d)). If a new Underwriter or Underwriters are
substituted for a defaulting Underwriter or Underwriters in accordance
with Section 9(d), the Company or you shall have the right to postpone
the time of purchase for a period not exceeding five business days in
order that any necessary change in the
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Registration Statement and the Prospectus and other documents may be
effected. The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 9 with like
effect as if such substituted Underwriter had originally been named in
Schedule A.
(f) If the purchase of the Shares by the
Underwriters, as contemplated by this Agreement, is not consummated for
any reason permitted under this Agreement or if such purchase is not
consummated because the Company shall be unable to comply with any of
the terms of this Agreement, the Company shall not be under any
obligation or liability under this Agreement (except to the extent
provided in Sections 5(l), 7 and 10), and the Underwriters shall be
under no obligation or liability to the Company under this Agreement
(except to the extent provided in Section 10).
10. Indemnity by the Company, the Selling Shareholders and the
Underwriters.
(a) The Company agrees to indemnify, defend and
hold harmless each Underwriter, each person that controls any
Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and each Underwriter's agents, employees, officers
and directors and the agents, employees, officers and directors of any
such controlling person (collectively, the "Underwriter indemnified
parties") from and against any and all losses, claims, damages,
judgments, liabilities and expenses (including the reasonable fees and
expenses of counsel and other expenses in connection with
investigating, defending or settling any such action or claim) which,
jointly or severally, any Underwriter indemnified party may incur as
they are incurred (and regardless of whether such Underwriter
indemnified party is a party to the litigation, if any) arising out of
or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus
or any Preliminary Prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, judgments,
liabilities or expenses arise out of, or are based upon, any such
untrue statement or omission or alleged untrue statement or omission
based upon and in conformity with information with respect to any
Underwriter furnished in writing by any Underwriter through you to the
Company expressly for use therein with reference to such Underwriter;
provided, however, that the indemnity agreement contained in this
Section 10(a) with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter indemnified party to the extent
that any such loss, claim, damage, judgment, liability or expense
results from the fact that such Underwriter sold Shares to a person as
to whom it shall be established that there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where
23
25
delivery is required by the Act if the Company has previously furnished
copies thereof to such Underwriter and the loss, claim, damage,
judgment, liability or expense of such Underwriter results from an
untrue statement or omission of a material fact contained therein, or
omitted from, the Preliminary Prospectus which was corrected in the
Prospectus (excluding documents incorporated by reference). This
indemnity agreement will be in addition to any liability the Company or
the Selling Shareholders otherwise may have.
(b) Each of the Selling Shareholders, severally
and not jointly, agrees to indemnify, defend and hold harmless each of
the Underwriter indemnified parties from and against any and all
losses, claims, damages, judgments, liabilities and expenses (including
the reasonable fees and expenses of counsel and other expenses in
connection with investigating, defending or settling any such action or
claim) which, jointly or severally, any Underwriter indemnified party
may incur as they are incurred (and regardless of whether such
Underwriter indemnified party is a party to the litigation, if any)
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
the Prospectus or any Preliminary Prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, 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 on and in conformity with written
information furnished to the Company by or on behalf of such Selling
Shareholder specifically for inclusion in the Registration Statement or
the Prospectus or the Preliminary Prospectus; provided, however, that
the indemnity agreement contained in this Section 10(b) with respect to
any Preliminary Prospectus shall not inure to the benefit of any
Underwriter indemnified party to the extent that any such loss, claim,
damage, judgment, liability or expense results from the fact that such
Underwriter sold Shares to a person as to whom it shall be established
that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding
documents incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference)
in any case where delivery is required by the Act if the Company has
previously furnished copies thereof to such Underwriter and the loss,
claim, damage, judgment, liability or expense of such Underwriter
results from any untrue statement or omission of a material fact
contained therein, or omitted from, the Preliminary Prospectus which
was corrected in the Prospectus (excluding documents incorporated by
reference); and, provided further that no Selling Shareholder shall be
responsible, either pursuant to this indemnity or as a result of any
breach of this Agreement by the Company, for losses, expenses,
liabilities or claims for an amount in excess of the proceeds to be
received by such Selling Shareholder from the sale of the Shares
hereunder. The Underwriters and the Company acknowledge that the
statements specifically relating to each Selling Shareholder under the
caption "Principal and Selling Shareholders" in the Prospectus
constitute the only information furnished in writing by or on behalf of
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26
such Selling Shareholder for use in the Registration Statement, the
Prospectus or the Preliminary Prospectus. This indemnity agreement will
be in addition to any liability the Company or the Selling Shareholders
otherwise may have.
(c) If any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought or asserted against any Underwriter indemnified party, with
respect to which indemnity may be sought against the Company or the
Selling Shareholders pursuant to this Section 10, such Underwriter
indemnified party shall promptly notify the Company and each Selling
Shareholder in writing, and the Company and the Selling Shareholders
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to the Underwriter indemnified party and
payment of all fees and expenses; provided that the omission so to
notify the Company and the Selling Shareholders shall not relieve them
from any liability that they may have to any Underwriter indemnified
party except to the extent that failure to give timely notice shall
impair the defense of such action or proceeding. An Underwriter
indemnified party shall have the right to employ separate counsel in
any such action or proceeding and to assume the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter indemnified party unless (i) the employment of such counsel
has been authorized in writing by the Company or the Selling
Shareholders, (ii) the Company and the Selling Shareholders have failed
promptly to assume the defense and employ counsel satisfactory to the
Underwriter indemnified party or (iii) the named parties to any such
action or proceeding (including any impleaded parties) include both the
Underwriter indemnified party and the Company or the Selling
Shareholders and such Underwriter indemnified party shall have been
advised by counsel and shall have reasonably concluded that there may
be one or more legal defenses available to it that are different from
or additional to those available to the Company and the Selling
Shareholders (in which case the Company and the Selling Shareholders
shall not have the right to assume the defense of such action on behalf
of such Underwriter indemnified party), in any of which events such
fees and expenses shall be borne by the Company and the Selling
Shareholders and reimbursed as they are incurred. It is understood,
however, that the Company and the Selling Shareholders shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all such Underwriter indemnified
parties, which firm shall be designated in writing by Xxxxxx, Read &
Co. Inc., and that all such fees and expenses shall be reimbursed as
they are incurred. The Company and the Selling Shareholders shall not
be liable for any settlement of any such action effected without the
written consent of the Company or the Selling Shareholders (which
consent shall not be unreasonably withheld or delayed), but if settled
with the written consent of the Company or the Selling Shareholders, or
if there is a final judgment with respect thereto, the Company and the
Selling Shareholders
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27
agree to indemnify and hold harmless each Underwriter indemnified party
from and against any loss or liability by reason of such settlement or
judgment.
(d) Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement, and any person that controls the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (collectively, the "Company indemnified parties") and
each Selling Shareholder to the same extent as the foregoing indemnity
from the Company and the Selling Shareholders to the Underwriter
indemnified parties, but only with respect to information concerning
such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with respect
to such Underwriter in the Registration Statement, any Preliminary
Prospectus or the Prospectus. In case any action shall be brought
against any Company indemnified party or any Selling Shareholder based
on the Registration Statement, any Preliminary Prospectus or the
Prospectus and in respect of which indemnity may be sought against any
Underwriter pursuant to this Section 10(d), such Underwriter shall have
the rights and duties given to the Company and the Selling Shareholders
by Section 10(c) (except that if the Company and the Selling
Shareholders shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof, provided that the fees and
expenses of such separate counsel shall be at the expense of such
Underwriter), and the Company indemnified parties and the Selling
Shareholders shall have the rights and duties given to the Underwriter
indemnified parties by Section 10(c).
(e) If the indemnification provided for in this
Section 10 is unavailable to or insufficient to hold harmless any
Underwriter indemnified party or any Company indemnified party or any
Selling Shareholder, then the party required to indemnify such
indemnified party under this Section 10, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
judgments, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
and the Selling Shareholders on the one hand and the Underwriters on
the other hand from the offering of the Shares, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Selling Shareholders on the one hand and
the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total proceeds from
the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the Selling
Shareholders bear to the total
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underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company, by the Selling Shareholders or by
the Underwriters, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, claims, damages, judgments, liabilities and expenses referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any claim or action.
The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 10(e) were determined by pro rata allocation or by any
other method of allocation (even if the Underwriters were treated as one entity
for such purpose) that does not take account of the equitable considerations
referred to in this Section 10(e). Notwithstanding the provisions of this
Section 10(e), no Underwriter indemnified party shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter indemnified party and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter indemnified party otherwise has been required to pay by reason of
such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 10 are several in proportion
to their respective underwriting commitments and are not joint.
The statements under the caption "Underwriting" in
the Prospectus (to the extent such statements relate to an Underwriter)
constitute the only information furnished to the Company in writing by such
Underwriter expressly for use in the Registration Statement, any Preliminary
Prospectus or the Prospectus.
(f) The indemnity and contribution agreements
contained in covenants of the Company and the Selling Shareholders
contained in this Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter
indemnified party or by or on behalf of any Company indemnified party
or any Selling Shareholder, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. Subject to the
provisions of Section 10(c) and Section 10(d), the Company, each
Selling Shareholder and each Underwriter agree promptly to notify the
other of the commencement of any litigation or proceeding against it in
connection with the
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29
issuance and sale of the Shares or in connection with the Registration
Statement or the Prospectus.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Xxxxxx, Read & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at
0000 Xxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxx, Esq.,
Vice President and General Counsel; and if to the Selling Shareholders, shall be
sufficient in all respects, if delivered or sent to Xxxx X. Xxxx, Esq., as
Attorney-in-Fact to the Selling Shareholders.
12. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE
BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS
AGREEMENT.
13. Parties at Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company, the Selling
Shareholders, the Underwriter indemnified parties and the Company indemnified
parties, and their respective successors, assigns, executors and administrators.
No other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
[Remainder of page intentionally left blank]
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If the foregoing correctly sets forth the understanding among the
Company, the Selling Shareholders and the Underwriters, please so indicate in
the space provided below for such purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Company, the Selling
Shareholders and the Underwriters, severally.
Very truly yours,
XXXXXXX CORPORATION
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President and General Counsel
31
THE SELLING SHAREHOLDERS NAMED
IN SCHEDULE B ATTACHED HERETO
By: /s/ Xxxx X. Xxxx
-----------------------------------------
Xxxx X. Xxxx, Esq., as Attorney-in-Fact
acting on behalf of each Selling
Shareholder named in Schedule B attached
hereto
Accepted and agreed to as of
the date first above written,
on behalf of themselves,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, The
Xxxxxxxx-Xxxxxxxx Company, Inc.
and the other several
Underwriters named in
Schedule A
XXXXXX, READ & CO. INC., as
Managing Underwriter
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
32
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
XXXXXX, READ & CO., INC........................................ 554,000
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION............ 553,000
THE XXXXXXXX-XXXXXXXX COMPANY, INC............................. 553,000
XXXXXX X. XXXXX & CO. INCORPORATED............................. 30,000
XXXXXX X. XXXX & COMPANY....................................... 20,000
BEAR, XXXXXXX & CO. INC........................................ 50,000
XXXXXXX XXXXX & COMPANY, L.L.C................................. 30,000
X.X. XXXXXXXX & CO............................................. 30,000
ALEX. XXXXX & SONS INCORPORATED................................ 50,000
X.X. XXXXXXX SECURITIES, INC................................... 30,000
XXXXXX GULL XXXXXXX & XXXXXXXX INC............................. 30,000
CREDIT SUISSE FIRST BOSTON CORPORATION......................... 50,000
XXXXXXX, XXXXXX & CO........................................... 30,000
FIRST OF MICHIGAN CORPORATION.................................. 30,000
XXXXXX XXXXXX XXXXXXXX & CO., INC.............................. 30,000
XXXXXXX, SACHS & CO............................................ 50,000
INTERSTATE/XXXXXXX XXXX CORPORATION............................ 30,000
XXXXXX XXXXXXXXXX XXXXX INC.................................... 30,000
X.X. XXXX & ASSOCIATES, INC.................................... 20,000
LAZARD FRERES & CO. LLC........................................ 50,000
XXXX XXXXX XXXX XXXXXX, INCORPORATED........................... 30,000
XXXXXX BROTHERS INC............................................ 50,000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED............. 50,000
XXXXXXXXXX SECURITIES.......................................... 50,000
XXXXXX XXXXXXX & CO. INCORPORATED.............................. 50,000
XXXXX X. XXXXX & COMPANY....................................... 20,000
XXXXXXXXXXX & CO., INC......................................... 50,000
PENNSYLVANIA MERCHANT GROUP LTD................................ 20,000
PRUDENTIAL SECURITIES INCORPORATED............................. 50,000
XXXXXXXX XXXXXX REFSNES, INC................................... 30,000
SALOMON BROTHERS INC........................................... 50,000
XXXXX XXXXXX INC............................................... 50,000
XXXXXXXX INC................................................... 30,000
STERNE, AGEE & XXXXX, INC...................................... 20,000
UNTERBERG HARRIS............................................... 30,000
X.X. XXXXXXXXXX & CO. INC...................................... 20,000
Total.......................................................... 2,850,000
=========
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SCHEDULE B
Number of Firm
Name Shares to be Sold
---- -----------------
Xxxxxxx X.Xxxxxxx.......................................... 80,000
C. Xxxxxxx Xxxxxx.......................................... 150,000
Xxxxx X. Xxxxx............................................. 100,000
Xxxxxxx X. Xxxxxxxx........................................ 20,000
-------
Total...................................................... 350,000
=======
34
SCHEDULE C
SUBSIDIARIES
Xxxxxxx Services, Inc.
Xxxxxxx Health Care, Inc.
Tascor Incorporated
HCA-Home Care Services, Inc.
Xxxxxxx Health Care of New York, Inc.
Xxxxxxx Technical Services, Inc.
American Technical Resources, Inc.
Comtex Information Systems, Inc.
Xxxxxxx Temporary Services, Inc.
Xxxxxxx Enterprises Corporation
35
SCHEDULE D
DIRECTORS, EXECUTIVE OFFICERS AND SHAREHOLDERS
WHO HAVE EXECUTED LOCK-UP AGREEMENTS
Xxx X. Xxxxxxx
C. Xxxxxxx Xxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Caress X. Xxxxxxx
Xxxxxx X. Self
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxx
Xxxxx X. Xxxxx
C. Xxxx Xxxxxx
T. Xxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxx, III
Xxxxxx X. XxXxxxx
Xxxxx Xxxxx Xxxxxxxx
Xxxxx X. Xxxx, Xx.
Xxxxxx Xxxxxxx-Street
MI Holdings, Inc.
36
SCHEDULE E
MATERIAL SUBSIDIARIES
Xxxxxxx Services, Inc.
Xxxxxxx Health Care, Inc.
Tascor Incorporated
Xxxxxxx Technical Services, Inc.
Comtex Information Systems, Inc.
CallTask Incorporated
NorCross Teleservices Inc.
HealthTask L.P.
37
SCHEDULE F
HCA - Home Care Services, Inc.
Xxxxxxx Health Care of New York, Inc.
