2,300,000 Shares
LMI AEROSPACE, INC.
Common Stock
June ____, 1998
UNDERWRITING AGREEMENT
EVEREN Securities, Inc.
Xxxxxx X. Xxxx & Company
2,300,000 Shares
LMI AEROSPACE, INC.
Common Stock
($0.02 par value)
UNDERWRITING AGREEMENT
June ___, 1998
EVEREN Securities, Inc.
Xxxxxx X. Xxxx & Company
As Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
LMI Aerospace, Inc., an Illinois corporation (the "Company"), confirms
its agreement with the several underwriters listed in Schedule I hereto (the
"Underwriters"), for whom EVEREN Securities, Inc., and Xxxxxx X. Xxxx & Company
(collectively, the "Representatives") have been duly authorized to act as
representatives, as follows:
1. The Shares. Subject to the terms and conditions set forth in this
agreement (this "Agreement"), the Company proposes to issue and sell 2,300,000
shares of the Company's Common Stock, $0.02 par value (the "Common Stock"), to
the several Underwriters. Such 2,300,000 shares of Common Stock proposed to be
sold by the Company are hereinafter referred to as the "Firm Shares." The
Company also proposes to issue and sell to the several Underwriters up to
345,000 additional shares of Common Stock (the "Additional Shares") if requested
by the Underwriters as provided in Section 3 hereof. The Firm Shares and the
Additional Shares are herein collectively called the "Shares." The Shares are
more fully described in the Registration Statement and Prospectus referred to
below. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Registration Statement and Prospectus.
2. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-______), including a
prospectus, relating to the Shares. The registration statement, as amended at
the time when it became or becomes effective, including all financial schedules
and exhibits thereto and all of the information (if any) deemed to be part of
the registration statement at the time of its effectiveness pursuant to Rule
430A under the Act ("Rule 430A"), is hereinafter referred to as the
"Registration Statement"; the prospectus in the form first provided to the
Underwriters by the Company in connection with the offering and sale of the
Shares (whether or not required to be filed pursuant to Rule 424(b) under the
Act ("Rule 424(b)")) is hereinafter referred to as the "Prospectus," except that
if any revised prospectus shall be provided to the Underwriters by the Company
for use in connection with the offering of the Shares that differs from the
Prospectus (whether or not any such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b) under the Act), the term "Prospectus"
shall refer to the revised prospectus from and after the time it is first
provided to the Underwriters for such use; and each preliminary prospectus
included in the Registration Statement prior to the time it became or becomes
effective is herein referred to as a "Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the representations
and warranties contained in this Agreement, and subject to the terms and
conditions hereof, (i) the Company agrees to issue and sell to the Underwriters
2,300,000 Firm Shares at a price of $_____ per Share (the "Purchase Price"); and
(ii) each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the Purchase Price, the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Company
agrees to issue and sell to the Underwriters, at the Purchase Price, up to
345,000 Additional Shares; and (ii) the Underwriters shall have the right to
purchase, severally and not jointly, from time to time, up to an aggregate of
345,000 Additional Shares at the Purchase Price. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to the total
number of Additional Shares to be purchased from the Company as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I bears
to the total number of Firm Shares.
The Company is advised by you that the Underwriters propose to make a
public offering of their prospective portions of the Shares as soon after the
Registration Statement and this Agreement become effective as in your judgment
is advisable. The Company is further advised that the Underwriters propose to
offer the Shares to the public initially upon the terms set forth in the
Prospectus. The Company is further advised that after the initial public
offering, the price to the public, the concession and the discount to dealers
may be changed.
For a period of 180 days from the date this Agreement becomes
effective, the Company will not, without the prior written consent of EVEREN
Securities, Inc. on behalf of the Underwriters (1) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
(other than [1,389,750] shares of Common Stock and/or related options issued or
issuable pursuant to the 1989 Employee Incentive Stock Option Plan described in
the Prospectus, or (2) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise.
The Company will cause each shareholder of the Company (each a
"Shareholder") to deliver to the Representatives an agreement pursuant to which
such Shareholder agrees that it will not, without the prior written consent of
EVEREN Securities, Inc. on behalf of the Underwriters, for a period of 180 days
from the date this Agreement becomes effective, (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly .or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise.
4. Agreements of the Company as to Delivery and Payment. The Company
agrees with each Underwriter that:
(a) Delivery to the Underwriters of and payment for the Firm Shares
shall be made at 10:00 A.M., New York City time, on the third full
business day (such time and date being referred to as the "Closing
Date") following the date of the initial public offering of the Firm
Shares, at such place as you shall designate.
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(b) Delivery to the Underwriters of and payment for any
Additional Shares to be purchased by the Underwriters shall be made at
such place as the Representatives shall designate, at 10:00 A.M., New
York City time, on such date or dates (individually, an "Option Closing
Date" and collectively, the "Option Closing Dates"), which may be the
same as the Closing Date but shall in no event be earlier than the
Closing Date, as shall be specified in a written notice from the
Representatives to the Company of the Underwriters' determination to
purchase a number, specified in said notice, of Additional Shares. Any
such notice may be given at any time within 45 days after the date of
this Agreement.
(c) Certificates for the Shares shall be registered in such
names and issued in such denominations as you shall request in writing
not later than two business days prior to the Closing Date or the
applicable Option Closing Date, as the case may be, and shall be made
available for inspection not later than 9:30 A.M., New York City time,
on the business day next preceding the Closing Date or the applicable
Option Closing Date, as the case may be. Certificates in definitive
form evidencing the Shares shall be delivered to you on the Closing
Date or the applicable Option Closing Date, as the case may be, with
any transfer taxes thereon payable upon initial issuance or the
transfer thereof duly paid by the Company for the respective accounts
of the Underwriters against payment of the Purchase Price therefor to
the order of the Company by a federal funds check of same day funds or
by wire transfer of same day funds.
5. Further Agreements of the Company.
The Company covenants and agrees with each Underwriter that:
(a) it will, if the Registration Statement has not heretofore
become effective under the Act, file an amendment to the Registration
Statement or, if necessary pursuant to Rule 430A under the Act, a
post-effective amendment to the Registration Statement, as soon as
practicable after the execution and delivery of this Agreement, and
will use its best efforts to cause the Registration Statement or such
post-effective amendment to become effective at the earliest possible
time; and the Company will comply fully and in a timely manner with the
applicable provisions of Rule 424(b) and Rule 430A under the Act and
will provide evidence satisfactory to you of such compliance;
(b) it will advise you promptly and, if requested by you,
confirm such advice in writing, (i) when the Registration Statement has
become effective, if and when the Prospectus is sent for filing
pursuant to Rule 424 under the Act and when any post-effective
amendment to the Registration Statement becomes effective, (ii) of the
receipt of any comments from the Commission or any state securities
commission or other regulatory authority that relate to the
Registration Statement or requests by the Commission for amendments to
the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction, or the initiation or,
to the best knowledge of the Company, threat of any proceedings for
such purpose by the Commission or any state securities commission or
other regulatory authority, and (iv) of the happening of any event or
information becoming known during the period referred to in paragraph
(e) below that makes any statement of a material fact made in the
Registration Statement untrue or that requires the making of any
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additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements therein
not misleading or that makes any statement of a material fact made in
the Prospectus (as amended or supplemented from time to time) untrue or
that requires the making of any additions to or changes in the
Prospectus (as amended or supplemented from time to time) in order to
make the statements therein, not misleading; if at any time the
Commission shall issue or institute proceedings (or threaten to
institute any such proceedings) to issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue or institute
proceedings (or threaten to institute proceedings) to issue an order
suspending the qualification or exemption of the Shares under any state
securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(c) it will furnish to you without charge four signed copies
of the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits filed therewith, and will
furnish to you and each Underwriter designated by you such number of
conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request;
(d) it will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or make any amendment or supplement to the
Prospectus of which you shall not previously have been advised and
provided a copy a reasonable period of time prior to the filing thereof
or to which you or your counsel shall reasonably object; and to prepare
and file with the Commission, promptly upon your reasonable request,
any amendment to the Registration Statement or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause
the same to become promptly effective;
(e) promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as a
prospectus is required by the Act to be delivered in connection with
the sales by an underwriter or a dealer (in the opinion of your
counsel), it will furnish to each Underwriter and dealer without charge
as many copies of the Prospectus (and any amendment or supplement of
the Prospectus) as such Underwriter or dealer may reasonably request
for the purposes contemplated by the Act; the Company consents to the
use of the Prospectus and any amendment or supplement thereto by any
Underwriter or any dealer, both in connection with the offering or sale
of the Shares and for such period of time thereafter as the Prospectus
is required by the Act to be delivered in connection therewith;
(f) if during the period specified in paragraph (e) above any
event shall occur or information become known as a result of which in
the opinion of your counsel it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in light of the
circumstances existing as of the date the Prospectus is delivered to a
purchaser, not misleading, or it is necessary to amend or supplement
the Prospectus to comply with any law, it will forthwith prepare and,
subject to paragraph 5(d) above, file with the Commission at the sole
expense of the Company an appropriate amendment or supplement to the
Prospectus so that the statements of any material facts in the
Prospectus, as so amended and supplemented, will not in light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with the Act and all other applicable law and it
will furnish to the Underwriters and to such dealers as the
Underwriters shall specify, at the sole expense of the Company, such
number of copies thereof as such Underwriters or dealers may reasonably
request;
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(g) prior to any public offering of the Shares, it will
cooperate with you and counsel for the Underwriters in connection with
the registration, qualification or filing of notices of the offer and
sale of the Shares by the several Underwriters and by dealers under the
state securities or Blue Sky laws of such jurisdictions as you may
request and to continue such qualification in effect as long as
required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to
effect such registration or qualification;
(h) it will not acquire any capital stock of the Company prior
to the exercise in full or termination or expiration of the option to
purchase the Additional Shares nor will the Company declare or pay any
dividend or make any other distribution upon the Common Stock payable
to shareholders of record on a date prior to the exercise in full or
termination or expiration of the option to purchase the Additional
Shares, except in either case as contemplated by the Prospectus;
(i) it will make generally available to its security holders
and furnish to the Underwriters as soon as reasonably practicable a
consolidated earnings statement covering a period of at least 12 months
beginning after the "effective date" (as defined in Rule 158 under the
Act) of the Registration Statement (but in no event commencing later
than 90 days after such date) that will satisfy the provisions of
Section 11(a) of the Act and Rule 158 thereunder;
(j) during the period of five years after the date of this
Agreement, it will furnish to you a copy (i) as soon as practicable
after the filing thereof, of each report filed by the Company with the
Commission, any securities exchange or the National Association of
Securities Dealers, Inc. ("NASD"); (ii) as soon as practicable after
the release thereof, of each material press release in respect of the
Company; (iii) as soon as available, of each report of the Company
mailed to shareholders; and (iv) as soon as available, such other
publicly available information concerning the Company as you may
reasonably request;
(k) it will use the net proceeds received by it from the sale
of the Shares being sold by it in the manner specified in the
Prospectus;
(l) it will cause the Shares to be listed, subject to notice
of issuance or sale, on The Nasdaq National Market (the "NASDAQ"); it
will comply with all registration, filing and reporting requirements of
the Securities Exchange Act of 1934, as amended, (the "Exchange Act")
and the NASDAQ for so long as delivery of a Prospectus is required in
connection with the offering or sale of the Shares;
(m) Prior to the Closing Date and any Closing Date, as the
case may be, not to issue any press release or other communication
relating to the offering of the Shares, or hold any press conference
with respect to the Company, any subsidiary, the financial conditions,
results of operations, business, properties, assets, or liabilities of
any of them, or this offering, without prior written consent of EVEREN
Securities, Inc. which shall not be unreasonably withheld; and
(n) it will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to
or after the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the
Shares.
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6. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter
as of the date hereof, the Closing Date and each Option Closing Date
that:
(i) the Company has filed with the Commission the
Registration Statement, including the Prospectus, related to
the Shares; the Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus
Registration Statement or Prospectus relating to the proposed
offering of the Shares nor instituted or threatened any
proceedings for that purpose or for purpose of issuing a stop
order suspending effectiveness of the Registration Statement.
The Registration Statement, on the date it became or becomes
effective, each Preliminary Prospectus, on the date of the
filing thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission (or if not filed, on the date provided by
the Company to the Underwriters in connection with the
offering and sale of the Shares) and at the Closing Date and
each Option Closing Date conformed or will conform with the
requirements of the Act and the rules and regulations
promulgated thereunder ("Rules and Regulations"); the
Registration Statement, on the date it became or becomes
effective, did not or will not contain an untrue statement of
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; each Preliminary Prospectus, on the date of the
filing thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission (or if not filed, on the date provided by
the Company to the Underwriters in connection with the
offering and sale of the Shares) and at the Closing Date and
each Option Closing Date did not and will not include an
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; the foregoing shall not apply
to statements in or omissions from the Preliminary Prospectus,
Registration Statement and the Prospectus made or omitted in
reliance upon, and in conformity with, information relating to
the Underwriters furnished in writing to the Company by or on
behalf of the Underwriters with your consent expressly for use
therein; the Company hereby acknowledges for all purposes
under this Agreement that (A) the statements set forth under
the caption "Underwriting" in the Prospectus, (B) the
stabilization legend on the gate-fold of the Prospectus and
(C) footnotes [1 and 3] and the last paragraph of text on the
cover page of the Prospectus constitute the only written
information furnished to the Company by or on behalf of the
Underwriters for use in the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
thereto;
(ii) the Company's subsidiaries are Xxxxxxx'x Metal,
Inc., a Missouri corporation ("Xxxxxxx'x") and LMI Finishing,
Inc., a Missouri corporation ("Finishing"), (such subsidiaries
being collectively referred to herein as the "Subsidiaries");
and individually a "Subsidiary" each of the Company and its
Subsidiaries has been duly incorporated and is a validly
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with full corporate power
and authority to own or lease its respective properties and
assets and to conduct its respective business as described in
the Registration Statement and the Prospectus and is duly
qualified to do business in each jurisdiction in which it owns
or leases real property or in which the conduct of its
respective business or the ownership or leasing of property
requires such qualification, except where the failure to be
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so qualified, either individually or in the aggregate, would
not have a material adverse effect on the condition
(financial or otherwise), business, assets, prospects, net
worth or results of operations of the Company and its
Subsidiaries taken as a whole (a "Material Adverse Effect")
and no preceding has been instituted in any such jurisdiction
revoking, limiting, curtailing or seeking to revoke, limit or
curtail such power and authority or qualification;
(iii) the capitalization of the Company is, and upon
consummation of the transactions contemplated hereby and by
the Prospectus will be (as modified by the assumptions and
footnotes included in the "Capitalization" section of the
Prospectus), as set forth in the Registration Statement and
the Prospectus under the caption "Capitalization;" all of the
issued and outstanding shares of capital stock of the Company
have been duly authorized and are validly issued, are fully
paid and non-assessable and conform to the description thereof
in the Registration Statement and the Prospectus and were not
issued in violation of any preemptive rights or other rights
to subscribe for or purchase securities; except as set forth
in the Registration Statement and the Prospectus with respect
to the Company's 1989 Employee Incentive Stock Option Plan, no
options, warrants or other rights to purchase from the
Company, agreements or other obligations of the Company to
issue or other rights to convert any obligation into, or
exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding; the
description of the Company's 1989 Employee Incentive Stock
Option Plan and the other options or rights granted and
exercised thereunder, as set forth in the Registration
Statement and the Prospectus, accurately presents the
information required to be shown under the Act with respect to
such options and rights; and all of the issued and outstanding
shares of capital stock of each Subsidiary have been duly and
validly authorized and issued and are fully paid and
non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, security interests, equities
or claims;
(iv) subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, and except as described therein, (A) neither the
Company nor any Subsidiary has incurred any material
liabilities or obligations, direct or contingent, or entered
into any material transactions which are not in the ordinary
course of business or which could result in a material
reduction in the future earnings of the Company and the
Subsidiaries, (B) the Company has not purchased any of its
outstanding capital stock or declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock
or otherwise and the Company and the Subsidiaries are not in
default in the payment of principal or interest on any
outstanding debt obligations, (C) there has not been any
material adverse change in the Company's or any Subsidiary's
condition (financial or otherwise), business, affairs,
prospects or results of operations and (D) there has not been
any material change in the capital stock or the material
indebtedness of the Company or any Subsidiary;
(v) the Shares to be sold by the Company pursuant to this
Agreement have been duly and validly authorized and, when
issued, delivered and paid for pursuant to this Agreement,
will be validly issued, fully paid and nonassessable, and will
conform to the description thereof contained in the Prospectus
and the issuance of the Shares will not be subject to any
preemptive or similar rights;
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(vi) the Company has the requisite corporate power
and authority to enter into, execute and deliver this
Agreement and perform its obligations hereunder; this
Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except (i)
as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles and (ii) that rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws
or the public policy underlying such laws;
(vii) neither the Company nor any Subsidiary (i) is
in violation of its charter or by-laws (except for such
violation as would not have a Material Adverse Effect), (ii)
is in default in (nor has any event occurred that with notice
or lapse of time, or both, would be a breach of or a default
in) the performance of any obligation, agreement or condition
contained in any agreement, lease, contract, permit, license,
franchise agreement, mortgage, loan agreement, debenture,
note, deed of trust, bond, indenture or other evidence of
indebtedness or any other instrument or obligation
(collectively, "Obligations and Instruments") to which it or
any of its respective properties or assets is bound or
affected (except for such contravention or default as would
not have a Material Adverse Effect), (iii) is in violation of
any statute, judgment, decree, order, rule or regulation
(collectively, "Laws") applicable to it or any of its
respective properties or assets that, alone, or together with
other violations of Laws would result in a Material Adverse
Effect, and (iv) is charged with or, to the Company's
knowledge, under investigation with respect to, any material
violation of any such Laws (except for such violation as would
not have a Material Adverse Effect);
(viii) the execution, delivery and performance of this
Agreement and delivery of the Shares by the Company and
compliance by the Company with all the provisions hereof and
the consummation of the transactions contemplated hereby and
as described in the Prospectus under the caption "Use of
Proceeds" will not, alone or upon notice or the passage of
time or both (A) require any consent, approval, authorization,
license, certificate, permit or other order of any court,
regulatory body, administrative agency or other governmental
body or third party, including any party to any material
Obligation or Instrument, except such as may be required under
the Act and the securities or Blue Sky laws of the various
states or by the NASD, (B) result in the creation or
imposition of any lien, charge or encumbrance upon any of the
properties or assets of the Company or any Subsidiary pursuant
to the terms and provisions of any Obligation or Instrument
(except for such creation or imposition as would not have a
Material Adverse Effect), (C) conflict with or constitute a
breach or default under any Obligation or Instrument to which
the Company or any Subsidiary is a party or by which any of
their properties or assets is bound, (except for such
conflict, breach or default as would not have a Material
Adverse Effect) and would impair materially the ability of the
Company to perform its obligation hereunder or thereunder, or
(D) assuming compliance with the Act and all applicable state
securities or Blue Sky laws, violate or conflict with any Laws
applicable to the Company or any of its properties or assets
(except for such violation or conflict as would not have a
Material Adverse Effect);
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(ix) except as set forth in the Prospectus, there is
no action, suit, proceeding, inquiry or investigation,
governmental or otherwise before any court, arbitrator or
governmental agency or body (collectively, "Proceedings")
pending to which the Company or any Subsidiary is a party or
to which any of its respective properties or assets are
subject, that, if determined adversely, could reasonably be
expected to result in a Material Adverse Effect, or that could
reasonably be expected to materially and adversely affect the
properties or assets of the Company and its Subsidiaries,
taken as a whole, or that seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance or
sale of any of the Shares to be sold hereunder or the
consummation of the transactions described in the Prospectus
under the caption "Use of Proceeds", and, to the best
knowledge of the Company, no such Proceedings are threatened
or contemplated; no action has been taken with respect to the
Company, and, to the best knowledge of the Company, no
statute, rule or regulation or order has been enacted, adopted
or issued by any governmental agency that suspends the
effectiveness of the Registration Statement, prevents or
suspends the use of any Preliminary Prospectus or the
Prospectus or suspends the sale of the Shares in any
jurisdiction; no injunction, restraining order or order of any
nature by a federal or state court of competent jurisdiction
has been issued with respect to the Company that could
reasonably be expected to prevent the issuance of the Shares,
in any manner invalidate this Agreement, suspend the
effectiveness of the Registration Statement, prevent or
suspend the use of any Preliminary Prospectus or the
Prospectus or suspend the sale of the Shares in any
jurisdiction; and every request of the Commission, or any
securities authority or agency of any jurisdiction, for
additional information (to be included in the Registration
Statement or the Prospectus or otherwise) has been complied
with in all material respects;
(x) neither the Company nor any Subsidiary 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 Law") the
violation of which in such case or in the aggregate would have
a Material Adverse Effect; no property owned or leased by the
Company or any Subsidiary is contaminated with any waste or
hazardous substances the presence of which would result in a
Material Adverse Effect, nor would the Company or any
Subsidiary be deemed an "owner or operator" of a "facility" or
"vessel" that owns, possesses, transports, generates,
discharges or disposes of a "hazardous substance" as those
terms are defined in ss.9601 of the Comprehensive Response
Compensation and Liability Act of 1980, U.S.C. ss.9601 et seq.
(except that the Company and its Subsidiaries dispose in the
ordinary course of its business certain materials that may be
classified as or contain "hazardous substances"; the disposal
of such products (A) is in material compliance with all
applicable laws as of the date hereof and (B) has not and will
not result in a Material Adverse Effect);
(xi) neither the Company nor any Subsidiary is in
violation of any foreign, Federal, state or local law relating
to discrimination in the hiring, promotion or pay of employees
nor any applicable foreign, Federal or state wages and hours
9
laws, nor any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations
promulgated thereunder ("ERISA") or similar foreign laws, the
violation of which in each case or in the aggregate would
result in a Material Adverse Effect; no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension
plan" (as defined in ERISA) which in each case or in the
aggregate-would result in a Material Adverse Effect; neither
the Company nor any Subsidiary has incurred any material
liability under (i) Title IV of ERISA with respect to the
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended;
(xii) each of the Company and its Subsidiaries has
such permits, licenses, consents, certificates, orders,
franchises and authorizations of governmental or regulatory
authorities or third parties ("Permits"), including, without
limitation, under any applicable Environmental Laws, as are
necessary to own, lease and operate its respective properties
and assets and to conduct its respective businesses, except
where the failure to have any such Permit would not have a
Material Adverse Effect; each of the Company and its
Subsidiaries has fulfilled and performed all of its respective
material obligations with respect to such Permits and, to the
best knowledge of the Company, no event has occurred that
allows, or after notice or lapse of time, or both would allow,
revocation or termination thereof or result in any other
material impairment of the rights of the holder of any such
Permit;
(xiii) neither the Company nor any Subsidiary is, nor
intends to conduct its business in a manner in which it would
become, an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company
Act");
(xiv) except as otherwise set forth in the
Prospectus, each of the Company and its Subsidiaries has good
and marketable title, free and clear of all liens, claims,
encumbrances and restrictions (except liens for taxes not yet
due and payable and except for such liens, claims,
encumbrances and restrictions as do not materially affect the
value of such property and do not materially interfere with
the use made of such property) to all property and assets
described in the Registration Statement as being owned by it;
all leases to which each of the Company and its Subsidiaries
is a party are subsisting, valid and binding and no default of
the Company or any Subsidiary has occurred or is continuing
thereunder that might result in a Material Adverse Effect; and
each of the Company and its Subsidiaries has peaceful and
undisturbed possession under all such leases to which it is a
party as lessee with such exceptions as do not materially
interfere with the use made thereof by the Company or such
Subsidiary;
(xv) each of the Company and its Subsidiaries
maintains 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 and as is customary
for companies engaged in similar businesses in similar
industries;
(xvi) KPMG Peat Marwick LLP, for the years 1993 and
1994, and Ernst & Young LLP for the years 1995 and subsequent,
are each an independent public accounting firm with respect to
the Company and its Subsidiaries as required by the Act;
10
(xvii) the consolidated financial statements of the
Company, together with related notes and schedules of the
Company, included in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), are
accurate and present fairly the consolidated financial
position, results of operations and cash flows of the Company
and its Subsidiaries at the indicated dates and for the
indicated periods; such financial statements, schedules and
related notes have been prepared in accordance with generally
accepted accounting principles ("GAAP") consistently applied
throughout the periods involved (except as disclosed in the
Prospectus) as certified by the independent accountants named
in clause (xvi) above, and all adjustments necessary for a
fair presentation of results for such periods have been made
and any unaudited financial statements have been prepared on
the basis described in the Prospectus; and the summary and
selected financial and operating data included in the
Registration Statement and the Prospectus presents fairly the
information shown therein and have been compiled on the basis
described in the Prospectus; and the other financial and
statistical information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial
statements and the books and records of the Company;
(xviii) no holder of any security of the Company has
any right to require inclusion of any such security in the
Registration Statement; there are no preemptive rights with
respect to the Offering being made by the Prospectus;
(xix) except as disclosed in the Registration
Statement and the Prospectus, no labor dispute with the
employees of the Company or any Subsidiary exists, or to the
best knowledge of the Company, is imminent, that could result
in a Material Adverse Effect; and neither the Company nor any
Subsidiary has received notice of any existing or imminent
labor disturbance by the employees of any of its principle
suppliers, customers, manufacturers or contractors that could
result in any Material Adverse Effect;
(xx) the Company has filed or caused to be filed, or
has properly filed extensions for, all foreign, federal, state
and local income, value added and franchise tax returns and
has paid all taxes and assessments shown thereon as due,
except for such taxes and assessments as are disclosed or
adequately reserved against and that are being contested in
good faith by appropriate proceedings, promptly instituted and
diligently conducted; all material tax liabilities are
adequately provided for on the books of the Company and its
Subsidiaries, and there is no material tax deficiency that has
been asserted against the Company or any Subsidiary that is
not so provided for;
(xxi) the Company and its Subsidiaries own or
possess, or can readily acquire on reasonable terms, the
patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and or
unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names
(collectively, "Patents and Proprietary Rights") currently
employed by them in connection with the businesses they now
11
operate except where the failure to so own, possess or acquire
such Patents and Proprietary Rights would not have a Material
Adverse Effect; and neither the Company nor any Subsidiary has
received any notice and is not otherwise aware of any
infringement of or conflict with asserted rights of others
with respect to any Patent or Proprietary Rights that, if the
subject of any unfavorable decision, ruling or finding, singly
or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect; and neither the Company nor any
Subsidiary is obligated or under any liability whatsoever to
pay any royalty fee or other similar payment in respect of any
Patents and Proprietary Rights;
(xxii) neither the Company nor any of the Company's
executive officers, directors or affiliates (as defined under
the Act) has taken or will take, directly or indirectly, any
action designed to or which has constituted or that might
reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Shares;
(xxiii) each of the Company and its Subsidiaries
maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are
executed in accordance with management's authorizations, (ii)
transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is
permitted only in accordance with management's authorization,
and (iv) the recorded accountability for inventory is compared
with the existing inventory at reasonable intervals and
appropriate action is taken with respect to any differences;
(xxiv) there is no (i) material contract, document,
agreement or transaction to which the Company or any
Subsidiary is a party, or that involved or involves the
Company or any Subsidiary or any of its respective properties
or assets or (ii) local or governmental proceeding pending or,
to the best knowledge of the Company, threatened, to which the
Company or any Subsidiary is a party or to which any of their
respective property is subject that is required to be
described in or filed as an exhibit to the Registration
Statement or the Prospectus by the Act or the Rules and
Regulations that have not been so described or filed;
(xxv) other than as contemplated in this Agreement,
the Company has not incurred any liability for any finder's or
broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby;
(xxvi) except as disclosed in the Prospectus, to the
best of its knowledge, the Company owns and has the
unrestricted right to use all trade secrets, including
know-how, customer lists, inventions, designs, processes,
computer programs and technical data necessary to manufacture,
operate and sell all products and services sold or developed
and proposed to be sold by it as described in the Prospectus,
free and clear of any rights, liens and claims of others. To
the best of its knowledge, the Company is not using any
material confidential information or trade secrets of any
former employer of any of its past or present employees;
12
(xxvii) the Company has not, since the end of its
last fiscal year for which certified financial statements of
the Company were included in the Prospectus: (a) failed to pay
any dividend or sinking fund installment on preferred stock;
or (b) defaulted (i) on any installment or installments of
indebtedness for borrowed money, or (ii) on any rental on one
or more long term leases which defaults in the aggregate are
material to the financial position of the Company; and
(xxviii) the Company's Common Stock, including the
Shares, is eligible for trading on the NASDAQ National Market
System.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty made by the Company to each Underwriter as
to the matters covered thereby and shall be deemed incorporated herein
in its entirety and shall be effective as if such representation and
warranty were made herein.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls each of the
Underwriters within the meaning of Section 15 of the Act or Section 20
of the Exchange Act (the "indemnified parties") from and against any
and all losses, claims, damages, liabilities and judgments caused by,
arising out of, related to or based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), including the
information deemed to be part of the Registration Statement at the time
of effectiveness pursuant to Rule 430A, if applicable, or the
Prospectus or any Preliminary Prospectus or caused by 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;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or
judgment arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through EVEREN Securities, Inc. expressly for use therein. The Company
acknowledges that the only written information furnished to the Company
by or on behalf of any Underwriter for use in such documents is set
forth in Sections 6(a)(i) above.
(b) In case any action shall be brought against any of the
indemnified parties, based upon any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the
Company, such indemnified party shall promptly notify the Company in
writing (but the failure so to notify shall not relieve the Company of
any liability that they may otherwise have to such indemnified parties
under this Section 7 (although the Company's liability to an
indemnified party may be reduced on a monetary basis to the extent, but
only to the extent, they have been prejudiced by such failure on the
part of such indemnified party)) and the Company shall promptly assume
the defense thereof, including the employment of counsel satisfactory
to such indemnified party and payment of all fees and expenses. The
indemnified parties shall each have the right to employ separate
counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of such counsel shall have
been specifically authorized by the Company, (ii) the Company shall
have failed to assume promptly the defense or to employ counsel
reasonably satisfactory to such indemnified party or (iii) the named
13
parties to any such action (including any impleaded parties) include
both the indemnified party and the Company and such indemnified party
shall have been advised by counsel that there may be one or more legal
defenses available to one or more of the indemnified parties that are
different from or additional to those available to the Company (in
which case the Company shall not have the right to assume the defense
of such action on behalf of such indemnified party, it being
understood, however, that the Company 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) for the indemnified parties, which firm shall be designated in
writing by EVEREN Securities, Inc., and that all such fees and expenses
shall be reimbursed promptly as they are incurred). The Company shall
not 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 written consent of the Company, the Company
agrees to indemnify and hold harmless the indemnified parties from and
against any and all loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more
than 10 business days after delivery by registered or certified mail to
the proper address for notice to such indemnifying party of the
aforesaid request (whether or not such delivery is accepted) and (ii)
such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional and
complete release in writing of such indemnified party from any and all
liability on claims that are the subject matter of such proceeding,
which such settlement shall be in form and substance satisfactory to
the indemnified party. The indemnification provided in this Section 7
will be in addition to any liability which the Company may otherwise
have.
(c) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and any person controlling the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, to the same extent as the foregoing indemnity from
the Company to the Underwriters but only with reference to information
stated in or omitted from the Registration Statement, the Prospectus or
any Preliminary Prospectus in reliance upon, and in conformity with,
information relating to the Underwriters furnished in writing to the
Company by or on behalf of the Underwriters with your consent expressly
for use therein. In case any action shall be brought against the
Company, any of the Company's directors, any such officers or any
person controlling the Company based on the Registration Statement, the
Prospectus or any Preliminary Prospectus and in respect of which
indemnity may be sought against the Underwriters, the Underwriters
shall have the rights and duties given to the Company by Section 7(b)
hereof (except that if the Company 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
but the fees and expenses of such counsel shall be at the expense of
such Underwriter), and the Company, its directors, any such officers
and any person controlling the Company shall have the rights and duties
given to the "indemnified parties" by Section 7(b) hereof.
(d) To provide for just and equitable contribution, if an
indemnified party makes a claim for indemnification pursuant to Section
7 (subject to the limitations hereof) but it is found in a final
judicial determination, not subject to further appeal, that such
14
indemnification may not be enforced in such case, even though this
Agreement expressly provides for indemnification in such case, then
each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Shares or
(ii) if the allocation provided in clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering and sale of
the Shares (before deducting expenses) received by the Company on the
one hand, and the total underwriting discounts and commissions received
by the Underwriters on the other, bears to the total price to the
public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or the alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise paid or been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligation in this Section 7(d) to contribute are several in proportion
to the respective amount of Shares purchased hereunder by each
Underwriter and not joint.
8. Conditions to the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Shares on the
Closing Date and the Additional Shares on any Option Closing Date are subject to
the fulfillment of each of the following conditions on or prior to the Closing
Date and each Option Closing Date:
(a) All the representations and warranties of the Company
contained in this Agreement and in any certificate delivered hereunder
shall be true and correct on the Closing Date and each Option Closing
Date with the same force and effect as if made on and as of the Closing
Date or Option Closing Date, as applicable. The Company shall not have
failed at or prior to the Closing Date or Option Closing Date, as
applicable, to perform or comply in all respects with any of the
agreements herein contained and required to be performed or complied
with by the Company at or prior to the Closing Date.
15
(b) If the Registration Statement is not effective at the time
of the execution and delivery of this Agreement, the Registration
Statement shall have become effective (or, if a post-effective
amendment is required to be filed pursuant to Rule 430A under the Act,
such post-effective amendment shall have become effective) not later
than 9:30 A.M., New York City time, on the date of this Agreement or
such later time as you may approve in writing or, if the Registration
Statement has been declared effective prior to the execution and
delivery hereof in reliance on Rule 430A, the Prospectus shall have
been filed as required hereby, if necessary; and at the Closing Date
and each applicable Option Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been commenced or shall be
pending before or, to the best knowledge of the Underwriters or the
Company, threatened by the Commission; every request for additional
information on the part of the Commission shall have been complied with
to the Underwriters' satisfaction.
(c) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Shares hereunder, the
validity and form of the certificates representing the Shares, the
execution and delivery of this Agreement and all corporate proceedings
and other legal matters incident thereto, and the form of the
Registration Statement and the Prospectus (except financial statements)
shall have been approved by counsel for the Underwriters exercising
reasonable judgment, and no Underwriter shall have advised the Company,
based on information received after the date hereof, that the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, contains an untrue statement of material fact, or
omits to state a fact that in your opinion is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any material change, or any
material development involving a prospective change, in or affecting
the condition (financial or otherwise), results of operations,
business, prospects or properties of the Company and its Subsidiaries
that, in the judgment of the Representatives, makes it impractical or
inadvisable to proceed with the public offering or purchase of the
Shares as contemplated hereby.
(e) You shall have received an agreement from all of the
executive officers and directors of the Company and all of the other
Shareholders, who in the aggregate hold 100% of the shares of Common
Stock of the Company outstanding immediately prior to the completion of
the Offering of the Shares, whereby each such Person agrees to be bound
by an agreement to the same effect as the covenants set forth in the
last paragraph of Section 3 of this Agreement (the "Lock-Up
Agreements").
(g) You shall have received an opinion (satisfactory to you
and your counsel) dated the Closing Date or the Option Closing Date, as
the case may be, of Xxxxxx, Xxxxxxx & Xxxxxx, X.X., counsel for the
Company, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Missouri with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and the Company has been duly
qualified to do business as a foreign corporation under the
corporation law of, and is in good standing as such in, every
jurisdiction where the ownership or leasing of property, or
the conduct of its business requires such qualification except
where the failure so to qualify would not have a Material
Adverse Effect and, to the best of such counsel's knowledge,
no proceeding has been instituted in any such jurisdiction
revoking, limiting, curtailing or seeking to revoke, limit or
curtail, such power and authority or qualification;
16
(ii) each Subsidiary has been duly incorporated and
is validly existing as a corporation in good standing under
laws of the jurisdiction of its incorporation with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus; and each Subsidiary
has been duly qualified to do business as a foreign
corporation under the corporation law of, and is in good
standing as such in, every jurisdiction where the ownership or
leasing of property, or the conduct of its business requires
such qualification except where the failure so to qualify
would not have a Material Adverse Effect and, to the best of
such counsel's knowledge, no proceeding has been instituted in
any such jurisdiction revoking, limiting, curtailing or
seeking to revoke, limit or curtail, such power and authority
or qualification;
(iii) the Company has all necessary corporate power
and authority to enter into and perform this Agreement, and
the performance of the Company's obligations hereunder has
been duly authorized by all necessary corporate action; this
Agreement has been duly executed and delivered by and on
behalf of the Company, and, assuming due authorization,
execution and delivery of this Agreement by the Underwriters,
constitutes a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except (i)
as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles and (ii) that rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws
or the public policy underlying such laws; no approval,
consent, order, authorization, designation, license,
certificate, permit, declaration or filing by or with any
regulatory, administrative or other governmental body or, to
the best of such counsel's knowledge, third party (including
any party to any material Obligation or Instrument), is
necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions
contemplated herein (other than as may be required by the NASD
or as required by state securities or Blue Sky laws, as to
which such counsel need express no opinion) except such as
have been obtained or made, with counsel specifying the same;
(iv) all of the issued and outstanding capital stock
of each Subsidiary has been duly authorized, validly issued
and is fully paid and nonassessable, and the Company owns
directly or indirectly all of the outstanding capital stock of
each Subsidiary; all of the issued shares of each Subsidiary
have been duly and validly authorized and issued, and except
as set forth in the Registration Statement, such shares are
owned free and clear of any claims, liens, encumbrances,
equities or security interests;
(v) the Company has the capitalization set forth in the
Prospectus (except for subsequent issuances, if any, pursuant
to stock options or other rights referred to in the
Prospectus), and all of the issued shares of capital stock of
the Company conform as to legal matters to the description
thereof in the Registration Statement and Prospectus; to the
best of such counsel's knowledge, except as set forth in the
Registration Statement, no options, warrants, preemptive
rights or other rights to convert any obligation into, or
exchange any securities for or to subscribe for or to purchase
shares of capital stock or ownership interests in the Company
are outstanding;
17
(vi) the issued and outstanding capital stock of the
Company has been duly authorized and validly issued and is
fully paid and nonassessable and was not issued in violation
of or subject to any preemptive rights or other rights to
subscribe for or purchase securities;
(vii) to the best of such counsel's knowledge,
neither the filing of the Registration Statement or any
amendment thereto nor the offer and sale of the Shares to the
Underwriters as contemplated by this Agreement gives rise to
any rights, nor do any rights exist, for or relating to the
registration under the Act of any securities of the Company,
except as otherwise disclosed in this Agreement or the
Prospectus;
(viii) the Registration Statement has become
effective under the Act and no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the best of such counsel's knowledge, no proceedings
for that purpose are pending or have been initiated or
threatened by the Commission; and the Registration Statement
(including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant
to Rule 430A, if applicable), the Prospectus and each
amendment or supplement thereto, as of their effective or
issue dates, (except for the financial statements and other
statistical or financial data included therein, as to which
such counsel need express no opinion) complied as to form in
all material respects with the requirements of the Act and the
Rules and Regulations;
(ix) the statements made in the Registration
Statement under the captions "Capitalization," "Description of
Capital Stock,", "Business-Customers," "Management-Employment
Agreements with Executive Officers," "Management-Stock Option
Plans," "Management-Limitations on Directors' and Officers'
Liability," "Management-Anti-Takeover Provisions," "Certain
Transactions," "Shares Eligible for Future Sale" and Items 15
and 17 of Part II of the Registration Statement insofar as
they constitute summaries of documents referred to therein,
proceedings or matters of law are accurate summaries thereof;
(x) to the best of such counsel's knowledge, there
are no Proceedings required to be described in the Prospectus
that are not described, or of any contracts or documents of a
character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that were not described and filed as
required;
(xi) the certificates for the Shares to be delivered
hereunder are in due and proper form, and when duly
countersigned by the Company's transfer agent and delivered to
you or upon your order against payment of the agreed
consideration therefor in accordance with the provisions of
this Agreement, the Shares sold by the Company hereunder and
represented thereby will be duly authorized and validly
issued, fully paid and non-assessable and free and clear of
all liens and restrictions on transfer; the Shares and Common
Stock conform in all material respects as to legal matters to
the description thereof contained in the Prospectus;
18
(xii) except as disclosed in the Prospectus, the
execution and performance of this Agreement will not result in
the creation of any lien, charge or encumbrance upon any of
the properties or assets of the Company or any Subsidiary
pursuant to the terms and provisions of, or conflict with, or
contravene any of the provisions of, or result in a default
under, any agreement, franchise, license, indenture, mortgage,
deed of trust, or other instrument described in the
Registration Statement or filed as an exhibit thereto, of the
Company or any of its Subsidiaries or by which the property of
any of them is bound and which contravention or default would
have a Material Adverse Effect; or violate any of the
provisions of the charter or bylaws of the Company or any of
its Subsidiaries or, to the best of such counsel's knowledge,
violate any statute, order, rule or regulation of any
regulatory or governmental body having jurisdiction over the
Company and its Subsidiaries and which violation would have a
Material Adverse Effect;
(xiii) to the best of such counsel's knowledge, all
offers and sales of the Company's capital stock since June
___, 1995 were at all relevant times exempt from the
registration requirements of the Act and were duly registered
or the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky
laws; and
(xiv) neither the Company, nor any Subsidiary is an
"investment company" subject to registration or regulation
under the Investment Company Act or a company controlled by an
"investment company" subject to such registration or
regulation.
In addition, such counsel shall state that they have
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants of the Company and
representatives of the Underwriters and their counsel, at
which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although
such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or unfairness of
the statements contained in the Registration Statement or the
Prospectus and has not made any independent verification
thereof, on the basis of the foregoing (relying as to factual
matters and materiality upon the statements of officers and
other representatives of the Company), (i) no facts have come
to such counsel's attention that lead such counsel to believe
that either the Registration Statement or any amendment
(including any post-effective amendment) thereto at the time
such Registration Statement or amendment became effective,
contained an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that the Prospectus or any amendment or supplement thereto as
of their respective dates and as of the Closing Date and any
applicable Option 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 and (ii) the Registration
Statement and Prospectus (and any supplement or amendment
thereto) comply as to form in all material respects with the
19
Act and the Exchange Act, except that such counsel need
express no opinion with respect to the financial statements,
schedules and other financial data included in the
Registration Statement or the Prospectus.
The opinion of Xxxxxx, Xxxxxxx and Xxxxxx, X.X. described
above shall be rendered to you at the request of the Company and shall
so state therein.
(h) You shall have received an opinion of Much Shelist Freed
Xxxxxxxxx Xxxxx Xxxx & Xxxxxxxxxx, P.C., counsel for the Underwriters,
dated the Closing Date or the Option Closing Date, as the case may be,
in form and substance reasonably satisfactory to you.
(i) You shall have received, in connection with the execution
of this Agreement and on the Closing Date and each Option Closing Date,
a "cold comfort" letter from Xxxxx and Young LLP, dated as of each such
date in form and substance satisfactory to you with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(j) You shall have received a consent from KPMG Peat Marwick
LLP in form and substance satisfactory to you.
(k) You shall have received from the Company a certificate,
signed by Xxxxxx X. Xxxx and Xxxxxxxx X. Xxxxxxxxx in their capacities
as Chief Executive Officer and Chief Financial Officer of the Company,
respectively, addressed to the Underwriters and dated the Closing Date
or Option Closing Date, as applicable, to the effect that:
(i) such officer has carefully examined the
Registration Statement and the Prospectus and all amendments
or supplements thereto and, in such officer's opinion, such
Registration Statement or such amendment as of its effective
date and as of the Closing Date, and the Prospectus or such
supplement as of its date and as of the Closing Date, did not
contain an untrue statement of material fact or omit to state
a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in
such officer's opinion, since the effective date of the
Registration Statement, no event has occurred or information
become known that should have been set forth in an amendment
to the Registration Statement or a supplement to the
Prospectus which has not been so set forth in such amendment
or supplement;
(ii) the representations and warranties of the
Company set forth in Section 6(a) of this Agreement are true
and correct as of the date of this Agreement and as of the
Closing Date or the Option Closing Date, as the case may be,
and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date; and
(iii) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the Registration
Statement or any amendment thereto; no stop order suspending
the effectiveness of the Registration Statement has been
issued; and, to the best knowledge of the respective signers,
no proceedings for that purpose have been instituted or are
pending or contemplated under the Act.
20
The delivery of the certificate provided for in this subparagraph shall
be and constitute a representation and warranty of the Company as to
the facts required in the immediately foregoing clauses (ii) and (iii)
of this subparagraph to be set forth in said certificate.
(l) You and Much Shelist Freed Xxxxxxxxx Xxxxx Bell &
Xxxxxxxxxx, P.C., counsel for the Underwriters, shall have received on
or before the Closing Date or the Option Closing Date, as the case may
be, such further documents, opinions, certificates and schedules or
instruments relating to the business, corporate, legal and financial
affairs of the Company as you and they shall have reasonably requested
from the Company.
9. Effective Date of Agreement, Termination and Defaults. This
Agreement shall become effective upon, and shall not be deemed delivered until,
the later of (i) execution of this Agreement and (ii) when notification of the
effectiveness of the Registration Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
and any exercise of the option to purchase Additional Shares may be canceled at
any time prior to any Option Closing Date by the Underwriters by written notice
to the Company if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any adverse change or development involving a prospective adverse
change in the condition, financial or otherwise, of the Company or any
Subsidiary or the condition (financial or otherwise), earnings, affairs,
management, business or prospects of the Company or any Subsidiary, whether or
not arising in the ordinary course of business, that would, in the
Representatives' sole judgment, make it impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States that, in the Representatives' judgment, is material and adverse and
would, in the Representatives' judgment, make it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (iii) the
suspension or material limitation of trading in securities on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ or limitation on prices for
securities on any such exchange or the NASDAQ, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority that in the
Representatives' opinion materially and adversely affects, or will materially
and adversely affect, the business or operations of the Company or any
Subsidiary, (v) the declaration of a banking moratorium by either federal or New
York, Missouri or Illinois state authorities, (vi) the taking of any action by
any Federal, state or local government or agency in respect of its monetary or
fiscal affairs that in the Representatives' opinion has a material adverse
effect on the financial markets in the United States or (vii) there shall be any
change in financial markets or in political, economic or financial conditions
which, in the opinion of the Representatives, either renders it impracticable or
inadvisable to proceed with the offering and sale of the Shares on the terms set
forth in the Prospectus or materially adversely affects the market for the
Shares.
If on the Closing Date or on any Option Closing Date, as the case may
be, any of the Underwriters shall fail or refuse to purchase the Firm Shares or
Additional Shares, as the case may be, which it has agreed to purchase hereunder
on such date, and the aggregate number of Firm Shares or Additional Shares, as
the case may be, that such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase does not exceed, in the aggregate, 10% of the
total number of Shares that all Underwriters are obligated to purchase on such
date, each non-defaulting Underwriter shall be obligated, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I hereto
bears to the total number of Firm Shares or Additional Shares, as the case may
be, that all the non-defaulting Underwriters have agreed to purchase, or in such
other proportion as you may specify, to purchase the Firm Shares or Additional
Shares, as the case may be, that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If, on the Closing Date
or on the Option Closing Date, as the case may be, any of the Underwriters shall
fail or refuse to purchase the Firm Shares or Additional Shares, as the case may
be, in an amount that exceeds, in the aggregate, 10% of the total number of the
Shares, and arrangements satisfactory to you and the Company for the purchase of
such Shares are not made within 48 hours after such default, this Agreement
shall terminate without liability on the part of the non-defaulting Underwriters
21
and the Company, except as otherwise provided in this Section 9. In any such
case that does not result in termination of this Agreement, either you or the
Company may postpone the Closing Date or the Option Closing Date, as the case
may be, for not longer than seven (7) days, in order that the required changes,
if any, in the Registration Statement and the Prospectus or any other documents
or arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Underwriter from liability in respect of any default of any
such Underwriter under this Agreement.
10. Costs and Expenses. Whether or not the transactions contemplated
hereby are consummated or this Agreement becomes effective or is terminated, the
Company shall pay all costs, fees, expenses and taxes incident to the
performance by the Company of its obligations hereunder, including (i) the
preparation, printing, filing and distribution under the Act of the Registration
Statement (including financial statements and exhibits), each preliminary
Prospectus and all amendments and supplements to any of them prior to or during
the period specified in paragraph (e) above of Section 5, (ii) the word
processing, reproduction and distribution of this Agreement, the Master
Agreement among Underwriters and the Selected Dealer Agreement and any
supplements or amendments thereto in connection with the offering of the Shares
(including in each case any disbursements of counsel for the Underwriters
relating to the preparation and delivery of such documents but not including any
legal fees of counsel to the Underwriters), (iii) the filing of notices for the
offer and sale of the Shares under the securities or Blue Sky laws of the
several states, including in each case the disbursements of counsel for the
Underwriters but not including legal fees of counsel to the Underwriters,
relating to filings, (iv) filings and clearance with the NASD in connection with
the offering and sale of the Shares, (v) the listing of the Shares on the NASDAQ
National Market ("NASDAQ"), (vi) furnishing such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with the offering
or sale of the Shares by the Underwriters or by dealers to whom the Shares may
be sold, (vii) obtaining the opinion to be provided pursuant to Sections 8(g) of
this Agreement and (viii) the performance by the Company of all of its other
obligations under this Agreement. If the sale of the Shares provided for herein
is not consummated because the Underwriters exercise their right to terminate
this Agreement pursuant to Section 9 hereof and any of the following have
occurred during the term of this Agreement: (a) there has been any adverse
change in the condition (financial or otherwise), earnings, affairs, management,
business or prospects of the Company or any Subsidiary, or (b) the Company shall
refuse or be unable to comply with any provision hereof (except as the result of
a breach of this Agreement by the Underwriters), the Company will promptly
reimburse the Underwriters upon demand for all reasonable out-of-pocket expenses
(including the fees and disbursements of counsel for the Underwriters) that
shall have been incurred by the Underwriters in connection with the proposed
purchase and sale of Shares.
11. Effectiveness of Registration Statement. You and the Company will
use your and its best efforts to cause the Registration Statement to become
effective, if it has not yet become effective, and to prevent the issuance of
any stop order suspending the effectiveness of the Registration Statement and,
if such stop order be issued, to obtain as soon as possible the lifting thereof.
12. Miscellaneous. All communications hereunder will be in writing and,
if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o EVEREN Securities, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, Attention: Syndicate Department, with a copy to Much
Shelist Freed Xxxxxxxxx Xxxxx Bell & Xxxxxxxxxx P.C., 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxx; and if sent to
the Company will be mailed, delivered or telegraphed and confirmed to the
Company at its corporate headquarters with a copy to Gallop, Xxxxxxx & Xxxxxx,
X.X., 000 Xxxxx Xxxxxx Xxxx, 00xx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxx, or in any case to such other address as the person to be
notified may have requested in writing.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Company, and the Company's shareholders,
officers and directors set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any of the Underwriters or by or on
22
behalf of the Company or the shareholders, officers or directors of the Company
or any controlling person of the Company, (ii) acceptance of the Shares and
payment therefor hereunder or (iii) termination of this Agreement.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of, and shall be binding upon, the Company, the
Underwriters, any indemnified person referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The terms "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAW THEREOF.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters, including you.
Very truly yours,
LMI AEROSPACE, INC.
a Missouri corporation
By:_____________________________
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
EVEREN SECURITIES, INC.
XXXXXX X. XXXX & COMPANY
Acting as Representatives of the several
Underwriters named in Schedule I hereto
By: EVEREN Securities, Inc.
By:________________________________
Name:______________________________
Title:_____________________________
23
SCHEDULE I
Underwriters
Number of
Firm Shares
Name to be Purchased
---- ---------------
EVEREN Securities, Inc.
Xxxxxx X. Xxxx & Company
-----------
Total
===========
