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Exhibit 1
7,500,000 Shares
NS GROUP, INC.
Common Stock
UNDERWRITING AGREEMENT
September , 1997
XXXXX XXXXXX INC.
XXXXXXXX & COMPANY SECURITIES, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
NS Group, Inc., a Kentucky corporation (the "Company"), proposes to
issue and sell an aggregate of 6,000,000 shares of its common stock, no par
value per share, to the several Underwriters named in Schedule II hereto (the
"Underwriters"), and the persons named in Part A of Schedule I hereto (the
"Selling Stockholders") propose to sell to the several Underwriters an aggregate
of 1,500,000 shares of common stock of the Company. The Company and the Selling
Stockholders are hereinafter sometimes referred to as the "Sellers". The
Company's common stock, no par value, is hereinafter referred to as the "Common
Stock" and the 6,000,000 shares of Common Stock to be issued and sold to the
Underwriters by the Company and the 1,500,000 shares of Common Stock to be sold
to the Underwriters by the Selling Stockholders are hereinafter referred to as
the "Firm Shares". The Company and the Selling Stockholders listed in Part B of
Schedule I hereto also propose to sell to the Underwriters, upon the terms and
conditions set forth in Section 2 hereof, up to an additional 1,125,000 shares
(the "Additional Shares") of Common Stock. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares".
The Company and the Selling Stockholders wish to confirm their
respective agreements with you (the "Representatives") and
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the other several Underwriters on whose behalf you are acting, in connection
with the several purchases of the Shares by the Underwriters as follows:
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-3 under the Act (the "registration
statement"), including a prospectus subject to completion relating to the
Shares. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it becomes effective, or, if the registration statement
became effective prior to the execution of this Agreement, as supplemented or
amended prior to the execution of this Agreement. If it is contemplated, at the
time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Shares may commence, the term "Registration Statement" as used
in this Agreement means the registration statement as amended by said
post-effective amendment. If an abbreviated registration statement is prepared
and filed with the Commission in accordance with Rule 462(b) under the Act (an
"Abbreviated Registration Statement"), the term "Registration Statement" as used
in this Agreement includes the Abbreviated Registration Statement. The term
"Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement as supplemented by the addition of the Rule 430A information contained
in the prospectus filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectus" as used in this Agreement means the prospectus subject
to completion in the form included in the registration statement at the time of
the initial filing of the registration statement with the Commission, as the
same may have been amended from time to time prior to the date of the
Prospectus. Any reference in this Agreement to the registration statement, the
Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of the
registration statement, the Registration Statement, such Prepricing Prospectus
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the
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Securities Exchange Act of 1934, as amended (the "Exchange Act"), which, upon
filing, are incorporated by reference therein, as required by paragraph (b) of
Item 12 of Form S-3. As used herein, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the registration
statement, the Registration Statement, any Prepricing Prospectus, the
Prospectus, or any amendment or supplement thereto.
Agreements to Sell and Purchase. Subject to such adjustments
as you may determine in order to avoid fractional shares, the Company hereby
agrees, subject to all the terms and conditions set forth herein, to issue and
sell to each Underwriter and, upon the basis of the representations, warranties
and agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of ______ per Share (the "purchase price per share"), the number of Firm
Shares which bears the same proportion to the aggregate number of Firm Shares to
be issued and sold by the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II hereto (or such number of
Firm Shares increased as set forth in Section 12 hereof) bears to the aggregate
number of Firm Shares to be sold by the Company and the Selling Stockholders.
Subject to such adjustments as you may determine in order to avoid
fractional shares, each Selling Stockholder agrees, subject to all the terms and
conditions set forth herein, to sell to each Underwriter and, upon the basis of
the representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, each Underwriter, severally and not jointly, agrees to purchase
from each Selling Stockholder, at the purchase price per share, that number of
Firm Shares which bears the same proportion to the number of Firm Shares set
forth opposite the name of such Selling Stockholder in Schedule I hereto as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule II hereto (or such number of Firm Shares increased as set forth in
Section 12 hereof) bears to the aggregate number of Firm Shares to be sold by
the Company and the Selling Stockholders.
The Company and the Selling Stockholders listed in Part B of Schedule I
hereto also agree, subject to all the terms and conditions set forth herein, to
sell to the Underwriters, and, upon the basis of the representations, warranties
and agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, the Underwriters shall
have the right to purchase from the Company and the Selling Stockholders listed
in Part B of Schedule I hereto, at the purchase price per share, pursuant to an
option
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(the "over-allotment option") which may be exercised at any time and from time
to time prior to 9:00 P.M., New York City time, on the 30th day after the date
of the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next business day thereafter when the New York Stock Exchange is
open for trading), up to an aggregate of 230,295 Additional Shares from the
Company and up to an aggregate of 1,044,705 Shares from the Selling Stockholders
listed in Part B of Schedule I hereto (the maximum number of Additional Shares
which each of them agrees to sell upon the exercise by the Underwriters of the
over-allotment option is set forth opposite their respective names in Part B of
Schedule I). Additional Shares may be purchased only for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. The
number of Additional Shares which the Underwriters elect to purchase upon any
exercise of the over-allotment option shall be provided by the Company and by
each Selling Stockholder who has agreed to sell Additional Shares in the order
indicated in Part B of Schedule I. Upon any exercise of the over-allotment
option, each Underwriter, severally and not jointly, agrees to purchase from the
Company and each Selling Stockholder who has agreed to sell Additional Shares
the number of Additional Shares (subject to such adjustments as you may
determine in order to avoid fractional shares) subject to such exercise in the
order indicated in Part B of Schedule I.
Certificates in transferable form for the Shares (including any
Additional Shares) which each of the Selling Stockholders agrees to sell
pursuant to this Agreement have been placed in custody with (the
"Custodian") for delivery under this Agreement pursuant to a Custody Agreement
and Power of Attorney (the "Custody Agreement") executed by each of the Selling
Stockholders appointing and as agents and
attorneys-in-fact (the "Attorneys-in-Fact"). Each Selling Stockholder agrees
that (i) the Shares represented by the certificates held in custody pursuant to
the Custody Agreement are subject to the interests of the Underwriters, the
Company and each other Selling Stockholder, (ii) the arrangements made by the
Selling Stockholders for such custody are, except as specifically provided in
the Custody Agreement, irrevocable, and (iii) the obligations of the Selling
Stockholders hereunder and under the Custody Agreement shall not be terminated
by any act of such Selling Stockholder or by operation of law, whether by the
death or incapacity of any Selling Stockholder or the occurrence of any other
event. If any Selling Stockholder shall die or be incapacitated or if any other
event shall occur before the delivery of the Shares hereunder, certificates for
the Shares of such Selling Stockholder shall be delivered to the Underwriters by
the Attorneys-in-Fact in accordance with the terms and conditions of this
Agreement and the Custody Agreement as if such death or incapacity or other
event had not occurred, regardless of whether or not the Attorneys-in-Fact or
any Underwriter shall have received notice of such death, incapacity or other
event.
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Pursuant to the terms and conditions of the Custody Agreement, each
Attorney-in-Fact is authorized, on behalf of each of the Selling Stockholders,
to execute this Agreement and any other documents necessary or desirable in
connection with the sale of the Shares to be sold hereunder by such Selling
Stockholder, to make delivery of the certificates for such Shares, to receive
the price per share, to give receipts for such proceeds, to pay therefrom any
expenses to be borne by such Selling Stockholder in connection with the sale and
public offering of such Shares, to distribute the balance thereof to such
Selling Stockholder, and to take such other action as may be necessary or
desirable in connection with the transactions contemplated by this Agreement.
Each Attorney-in-Fact has agreed to perform his duties under the Custody
Agreement.
Terms of Public Offering. The Sellers have been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Shares upon the terms set forth in the Prospectus.
Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00
A.M., New York City time, on September ___, 1997 (the "Closing Date"). The place
of closing for the Firm Shares and the Closing Date may be varied by agreement
among you, the Company and the Attorneys-in-Fact.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the aforementioned office
of Xxxxxxx Xxxxxxx & Xxxxxxxx at such time on such date or dates (each such
date, an "Option Closing Date"), which may be the same as the Closing Date but
shall in no event be earlier than the Closing Date nor earlier than two nor
later than ten business days after the giving of the notice hereinafter referred
to, as shall be specified in a written notice from you on behalf of the
Underwriters to the Company and the Attorneys-in-Fact of the Underwriters'
determination to purchase a number, specified in such notice, of Additional
Shares. The place of closing for any Additional Shares and any Option Closing
Date for such Shares may be varied by agreement among you, the Company and the
Attorneys-in-Fact.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the
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Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and any Additional Shares to be purchased hereunder
shall be delivered to you on the Closing Date or the Option Closing Date, as the
case may be, against payment of the purchase price therefor by wire transfer of
immediately available funds to the accounts specified in writing by the Company
and the Attorney-in-Fact.
Agreements of the Company. The Company agrees with the several
Underwriters as follows:
If, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a
post-effective amendment thereto to be declared effective before the
offering of the Shares may commence, the Company will endeavor to cause
the Registration Statement or such post-effective amendment to become
effective as soon as possible and will advise you promptly and, if
requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become
effective.
The Company will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any
request by the Commission for amendment of or a supplement to the
Registration Statement, any Prepricing Prospectus or the Prospectus or
for additional information; (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any
proceeding for such purpose; and (iii) within the period of time
referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net
worth or results of operations, or of the happening of any event, which
makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or
which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or
the regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to
amend or supplement the Prospectus (as then amended or supplemented) to
comply with the Act or any other law. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort
to obtain the withdrawal of such order at the earliest possible time.
The Company will furnish to you, without charge (i)
four signed copies of the registration statement as
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originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits to the registration
statement, (ii) such number of conformed copies of the registration
statement as originally filed and of each amendment thereto, but
without exhibits, as you may request, (iii) such number of copies of
the Incorporated Documents, without exhibits, as you may request, and
(iv) four copies of the exhibits to the Incorporated Documents.
The Company will not file any amendment to the
Registration Statement or make any amendment or supplement to the
Prospectus or, prior to the end of the period of time referred to in
the first sentence in subsection (f) below, file any document which,
upon filing becomes an Incorporated Document, of which you shall not
previously have been advised or to which, after you shall have received
a copy of the document proposed to be filed, you shall reasonably
object.
Prior to the execution and delivery of this
Agreement, the Company has delivered to you, without charge, in such
quantities as you have requested, copies of each form of the Prepricing
Prospectus. The Company consents to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of
each Prepricing Prospectus so furnished by the Company.
As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period
as in the opinion of counsel for the Underwriters a prospectus is
required by the Act to be delivered in connection with sales by any
Underwriter or dealer, the Company will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
request. The Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of
the Act and with the securities or Blue Sky laws of the jurisdictions
in which the Shares are offered by the several Underwriters and by all
dealers to whom Shares may be sold, both in connection with the
offering and sale of the Shares and for such period of time thereafter
as the Prospectus is required by the Act to be delivered in connection
with sales by any Underwriter or dealer. If during such period of time
any event shall occur that in the judgment of the Company or in the
opinion of counsel for the Underwriters is required to be set forth in
the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or
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if it is necessary to supplement or amend the Prospectus (or to file
under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other
law, the Company will forthwith prepare and, subject to the provisions
of paragraph (d) above, file with the Commission an appropriate
supplement or amendment thereto (or to such document), and will
expeditiously furnish to the Underwriters and dealers a reasonable
number of copies thereof. In the event that the Company and you, as
Representatives of the several Underwriters, agree that the Prospectus
should be amended or supplemented, the Company, if requested by you,
will promptly issue a press release announcing or disclosing the
matters to be covered by the proposed amendment or supplement.
The Company will cooperate with you and with counsel
for the Underwriters in connection with the registration or
qualification of the Shares for offering and sale by the several
Underwriters and by dealers under the securities or Blue Sky laws of
such jurisdictions as you may designate and will file such consents to
service of process or other documents necessary or appropriate in order
to effect such registration or qualification; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction
where it is not now so subject.
The Company will make generally available to its
security holders a consolidated earnings statement, which need not be
audited, covering a twelve-month period commencing after the effective
date of the Registration Statement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section
11(a) of the Act.
During the period of three years hereafter, the
Company will furnish to you (i) as soon as available, a copy of each
report of the Company mailed to stockholders or filed with the
Commission, and (ii) from time to time such other information
concerning the Company as you may request.
If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof
(otherwise than pursuant to the second paragraph of Section 12 hereof
or by notice given by you terminating this Agreement pursuant to
Section 12 or Section 13 hereof) or if this Agreement shall be
terminated by the Underwriters because of any failure or refusal on the
part of the Company or the Selling Stockholders to comply with the
terms or
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fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the Representatives for all out-of-pocket expenses (including
fees and expenses of counsel for the Underwriters) incurred by you in
connection herewith.
The Company will apply the net proceeds from the sale
of the Shares to be sold by it hereunder substantially in accordance
with the description set forth in the Prospectus.
If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and
will advise you of the time and manner of such filing.
Except as provided in this Agreement, the Company
will not sell, contract to sell or otherwise dispose of any Common
Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, or grant any options or warrants to purchase Common
Stock, for a period of 120 days after the date of the Prospectus,
without the prior written consent of Xxxxx Xxxxxx Inc.
The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of
its current officers and directors and by each holder of its equity
securities designated by you.
Except as stated in this Agreement and in the
Prepricing Prospectus and Prospectus, the Company has not taken, nor
will it take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or
resale of the Shares.
The Company will use its best efforts to have the
shares of Common Stock which it agrees to sell under this Agreement
listed, subject to notice of issuance, on the New York Stock Exchange
on or before the Closing Date.
Agreements of the Selling Stockholders. Each of the Selling
Stockholders agrees with the several Underwriters as follows:
Such Selling Stockholder will cooperate to the extent
necessary to cause the registration statement or any post-effective
amendment thereto to become effective at the earliest possible time.
Such Selling Stockholder will pay all Federal and
other taxes, if any, on the transfer or sale of the Shares being sold
by the Selling Stockholder to the Underwriters.
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Such Selling Stockholder will do or perform all
things required to be done or performed by such Selling Stockholder
prior to the Closing Date or any Option Closing Date, as the case may
be, to satisfy all conditions precedent to the delivery of the Shares
pursuant to this Agreement.
Such Selling Stockholder has executed or will execute
a "lock-up" letter substantially similar to the letter referred to in
Section 5(n) above and will not sell, contract to sell or otherwise
dispose of any Common Stock, except for the sale of Shares to the
Underwriters pursuant to this Agreement, prior to the expiration of 120
days after the date of the Prospectus, without the prior written
consent of Xxxxx Xxxxxx Inc.
Except as stated in this Agreement and in the
Prepricing Prospectus and the Prospectus, such Selling Stockholder will
not take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or
resale of the Shares.
Such Selling Stockholder will advise you promptly,
and if requested by you, will confirm such advice in writing, within
the period of time referred to in Section 5(f) hereof, of any change in
information relating to such Selling Stockholder or the Company or any
new information relating to the Company or relating to any matter
stated in the Prospectus or any amendment or supplement thereto which
comes to the attention of such Selling Stockholder that suggests that
any statement made in the Registration Statement or the Prospectus (as
then amended or supplemented, if amended or supplemented) is or may be
untrue in any material respect or that the Registration Statement or
Prospectus (as then amended or supplemented, if amended or
supplemented) omits or may omit to state a material fact or a fact
necessary to be stated therein in order to make the statements therein
not misleading in any material respect, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented, if amended
or supplemented) in order to comply with the Act or any other law.
Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment
or supplement thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material
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respects with the provisions of the Act. The Commission has not issued
any order preventing or suspending the use of any Prepricing
Prospectus.
The Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Act. The
registration statement in the form in which it became or becomes
effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the prospectus and any
supplement or amendment thereto when filed with the Commission under
Rule 424(b) under the Act, complied or will comply in all material
respects with the provisions of the Act and will not at any such times
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation and
warranty does not apply to statements in or omissions from the
registration statement or the prospectus made in reliance upon and in
conformity with information relating to any Underwriter or Selling
Stockholder furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder, any further Incorporated Documents so filed
will, when they are filed, conform in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder; no such document when it was filed (or, if an amendment
with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and no such
further document, when it is filed, will contain an untrue statement of
a material fact or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading.
The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary
to own or hold their respective properties and to conduct the
businesses in which they are
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engaged, except where the failure to so qualify or have such power or
authority would not have, individually or in the aggregate, a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries
taken as a whole.
The Company has full right, power and authority to execute
and deliver this Agreement and to perform its obligations hereunder;
and all corporate action required to be taken for the due and proper
authorization, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly taken.
The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and
validly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company and constitutes a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms except, as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and except as rights
to indemnity and contribution hereunder may be limited by federal or
state securities laws; and the Shares conform to the descriptions
thereof contained in the Prospectus.
Except as disclosed in the Registration Statement and
the Prospectus (or any amendment or supplement thereto), subsequent to
the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), neither the Company nor any of the Subsidiaries
has incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business,
that is material to the Company and its subsidiaries taken as a whole,
and there has not been any change in the capital stock, or material
increase in the short-term debt or long-term debt, of the Company or
any of its subsidiaries, or any material adverse change, or any
development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the condition (financial or
other), results of operations, business or prospects of the Company and
its subsidiaries taken as a whole.
The Company has not distributed and, prior to the
later to occur of (i) the Closing Date (or the Option Closing Date, if
any) and (ii) completion of the
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distribution of the Shares, will not distribute any offering material
in connection with the offering and sale of the Shares other than the
Registration Statement, the Prepricing Prospectus, the Prospectus or
other materials, if any, permitted by the Act.
The Shares to be issued and sold by the Company hereunder,
when issued and delivered to the Underwriters against payment therefor
in accordance with the terms hereof, will be duly authorized, validly
issued, fully paid and non-assessable, will not be subject to any
preemptive or similar rights and will be free and clear of all liens,
encumbrances, equities and claims or restrictions on transferability
(other than those, if any, imposed by the Act and the securities or
Blue Sky laws of certain jurisdictions) or voting.
The issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and nonassessable; the capital stock conforms to all statements
relating thereto in the Prospectus; the Company has authorized, issued
and outstanding capital stock as set forth under "Description of
Capital Stock" in the Prospectus (except for subsequent issuances
pursuant to reservations, agreements, employee benefits plans or the
exercise of convertible securities and warrants referred to in the
Prospectus); and the stockholders have no preemptive rights or similar
rights with respect to the Common Stock.
Except as set forth in the Prospectus, there are no
outstanding (i) securities or obligations of the Company convertible
into or exchangeable for any capital stock of the Company, (ii)
warrants, rights or options to subscribe for or purchase from the
Company any such capital stock or any such convertible or exchangeable
securities or obligations, or (iii) obligations of the Company to issue
any such convertible or exchangeable securities or obligations, or any
such warrants, rights or obligations.
Except as set forth in the Prospectus, the Company and each
of its subsidiaries have good and marketable title in fee simple to, or
have valid rights to lease or otherwise use, all items of real or
personal property which are material to the business of the Company and
its subsidiaries taken as a whole, free and clear of all liens,
encumbrances, claims and defects that may materially interfere with the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole.
All of the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable
14
Page 14
and are owned directly or indirectly by the Company through one or more
wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party and are in the possession of the
Company.
The execution, delivery and performance of this Agreement by
the Company, the issuance and sale 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 a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject except where any of the same would not
reasonably be expected to have a material adverse effect on the
operations of the Company or the subsidiaries to which such conflict,
breach, violation or default relates, nor will such actions result in
any violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets except where any of the same would not
reasonably be expected to have a material adverse effect on the
operations of the Company or the subsidiaries to which such violation
relates; and except for the registration of the Shares under the Act,
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase and distribution
of the Shares by the Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Company, the issuance and sale of
the Shares to be sold by the Company hereunder and the consummation of
the transactions contemplated hereby.
The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved; and the other financial and statistical information
and data included or incorporated by
15
Page 15
reference in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) are accurately presented and prepared
on a basis consistent with such financial statements and the books and
records of the Company and its subsidiaries.
There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the
Registration Statement or any Incorporated Document by the Securities
Act which have not been so described or filed.
Except as disclosed in the Registration Statement and the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, are reasonably
likely to have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Company
and its subsidiaries taken as a whole; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject or (iii) is in violation
in any respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject,
except any violation or default that would not have a material adverse
effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries
taken as a whole.
The Company and each of its subsidiaries possess all
material licenses, certificates, authorizations and permits issued by,
and have made all declarations and filings with, the appropriate state,
federal or foreign regulatory agencies or bodies which are necessary
for the ownership of their respective properties or the conduct of
their respective businesses as described in the Prospectus, except
where the failure to possess or make the same would not
16
Page 16
have, individually or in the aggregate, a material adverse effect on
the condition (financial or otherwise), results of operations, business
or prospects of the Company and its subsidiaries taken as a whole, and
the Company has not received notification of any revocation or
modification of any such license, authorization or permit and has no
reason to believe that any such license, certificate, authorization or
permit will not be renewed.
The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights, licenses and know how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses and are not
aware that the conduct of their respective businesses will conflict
with, and have not received any notice of any claim of conflict with,
any such rights of others.
No labor disturbance by the employees of the Company or any
of its subsidiaries exists or, to the best of the Company's knowledge,
is imminent which might be expected to have a material adverse effect
on the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries taken as a
whole.
No "prohibited transaction" (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code")) or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events
set forth in Section 4043(b) of ERISA (other than events with respect
to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan
which could have a material adverse effect on the condition (financial
or otherwise), results of operations, business or prospects of the
Company and its subsidiaries taken as a whole; each employee benefit
plan is in compliance in all material respects with applicable law,
including ERISA and the Code; the Company has not incurred and does not
expect to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any "pension plan"; and each
"pension plan" (as defined in ERISA) for which the Company would have
any liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which could cause the
loss of such qualification.
17
Page 17
Except as disclosed in the Registration Statement and the
Prospectus, there has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission, or other release of
any kind of toxic or other wastes or other hazardous substances by, due
to, or caused by the Company or any of its subsidiaries (or, to the
best of the Company's knowledge, any other entity for whose acts or
omissions the Company or any of its subsidiaries is or may be liable)
upon any of the property now or previously owned or leased by the
Company or any of its subsidiaries, or upon any other property, in
violation of any statute or any ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any statute or any
ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for any
violation or liability which would not have, individually or in the
aggregate with all such violations and liabilities, a material adverse
effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries
taken as a whole; except as disclosed in the Registration Statement and
the Prospectus, there has been no disposal, discharge, emission or
other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company or any of its
subsidiaries have knowledge, except for any such disposal, discharge,
emission, or other release of any kind which would not have,
individually or in the aggregate with all such discharges and other
releases, a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Company
and its subsidiaries taken as a whole.
Except for General Electric Capital Corporation ("GECC") or
PMAC, Ltd. and its affiliates (collectively, "PMAC"), there are no
persons with registration or other similar rights either to have any
securities registered pursuant to the Registration Statement or to have
any securities otherwise registered by the Company under the Act in
connection with or as a result of the execution, delivery and
performance of this Agreement, and any such registration or other
similar rights of GECC or PMAC in connection with or as a result of the
execution, delivery and performance of this Agreement will have been
satisfied, discharged or waived in their entireties upon consummation
of the sale of the Shares as contemplated herein.
Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the
rules and regulations of the Commission thereunder.
18
Page 18
The Company has complied with all provisions of Florida
Statutes, 517.075, relating to issuers doing business with Cuba.
Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder represents and warrants
to each Underwriter that:
Such Selling Stockholder now has, and on the Closing
Date and any Option Closing Date will have, valid and marketable title
to the Shares to be sold by such Selling Stockholder, free and clear of
any lien, claim, security interest or other encumbrance, including,
without limitation, any restriction on transfer.
Such Selling Stockholder now has, and on the Closing
Date and any Option Closing Date will have, full legal right, power and
authorization, and any approval required by law, to sell, assign
transfer and deliver such Shares in the manner provided in this
Agreement, and upon delivery of and payment for such Shares hereunder,
the several Underwriters will acquire valid and marketable title to
such Shares, free and clear of any lien, claim, security interest, or
other encumbrance.
This Agreement and the Custody Agreement have been
duly authorized, executed and delivered by or on behalf of such Selling
Stockholder and are the valid and binding agreements of such Selling
Stockholder enforceable against such Selling Stockholder in accordance
with their terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
Neither the execution and delivery of this Agreement
or the Custody Agreement by or on behalf of such Selling Stockholder
nor the consummation of the transactions herein or therein contemplated
by or on behalf of such Selling Stockholder requires any consent,
approval, authorization or order of, or filing or registration with,
any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required under the Act
and the Exchange Act or such as may be required under state securities
or Blue Sky laws governing the purchase and distribution of the Shares)
or conflicts or will conflict with or constitutes or will constitute a
breach of, or default under, or violates or will violate, any
agreement, indenture or other instrument to which such Selling
Stockholder is a party or by which
19
Page 19
such Selling Stockholder is or may be bound or to which any of such
Selling Stockholder's property or assets is subject, or any statute,
law, rule, regulation, ruling, judgment, injunction, order or decree
applicable to such Selling Stockholder or to any property or assets of
such Selling Stockholder.
The Registration Statement and the Prospectus,
insofar as they relate to such Selling Stockholder, do not and will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
Such Selling Stockholder does not have any
knowledge or any reason to believe that the Registration Statement or
the Prospectus (or any amendment or supplement thereto) contains any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein concerning such Selling Stockholder not misleading.
The representations and warranties of such Selling
Stockholder in the Custody Agreement are, and on the Closing Date and
any Option Closing Date will be, true and correct.
Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, such Selling Stockholder has not taken, nor
will it take directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or
resale of the Shares, except for the lock-up arrangements described in
the Prospectus.
Indemnification and Contribution. A. The Company, agrees to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity
20
Page 20
with the information exclusively relating to such Underwriter furnished in
writing to the Company by or on behalf of any Underwriter through you expressly
for use in connection therewith; provided, however, that the indemnification
contained in this paragraph (a) with respect to any Prepricing Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Shares by such Underwriter to
any person if a copy of the Prospectus shall not have been delivered or sent to
such person within the time required by the Act and the regulations thereunder,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Prepricing Prospectus was
corrected in the Prospectus, provided that the Company has delivered the
Prospectus to the several Underwriters in requisite quantity on a timely basis
to permit such delivery or sending. The foregoing indemnity agreement
shall be in addition to any liability which the Company may otherwise have.
If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company or any Selling Stockholder (pursuant
to clause (c) below), such Underwriter or such controlling person shall promptly
notify the parties against whom indemnification is being sought (the
"indemnifying parties") and such indemnifying parties shall assume the defense
thereof, including the employment of counsel and payment of all reasonable fees
and expenses. Such Underwriter or any such controlling person shall have the
right to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the indemnifying parties have agreed in writing to pay such fees and
expenses, (ii) the indemnifying parties have failed to assume the defense and
employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both such Underwriter or
such controlling person and the indemnifying parties and such Underwriter or
such controlling person shall have been advised by its counsel that
representation of such indemnified party and any indemnifying party by the same
counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the indemnifying party shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such Underwriter or such
21
Page 21
controlling person). It is understood, however, that the indemnifying parties
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Underwriters and controlling persons not having actual or potential differing
interests with you or among themselves, which firm for such Underwriters and
controlling persons shall be designated in writing by Xxxxx Xxxxxx Inc., and
that all such fees and expenses shall be reimbursed as they are incurred. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify and
hold harmless any Underwriter, to the extent provided in the preceding
paragraph, and any such controlling person from and against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
Each Selling Stockholder agrees, severally and not jointly,
to indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, the Company, its directors, its
officers who sign the Registration Statement, and any person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only with respect to the information furnished in writing
by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against any Underwriter, any such controlling person of any Underwriter,
the Company, any of its directors, any such officer, or any such controlling
person of the Company, based on the Registration Statement, the Prospectus or
any Prepricing Prospectus or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Selling Stockholder pursuant to
this paragraph (c), such Selling Stockholder shall have the rights and duties
given to the Company by paragraph (b) above (except that if the Company shall
have assumed the defense thereof such Selling Stockholder shall not be required
to do so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such Selling
Stockholder's expense), and each Underwriter, each such controlling person of
any Underwriter, the Company, its directors, any such officer, and any such
controlling person of the Company shall have the rights and duties given to the
22
Page 22
Underwriters by paragraph (b) above. The foregoing indemnity agreement shall be
in addition to any liability which any Selling Stockholder may otherwise have.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, each Selling Stockholder, and any person who
controls 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 and the Selling Stockholders to each Underwriter, but only with respect
to information exclusively relating to such Underwriter furnished in writing by
or on behalf of such Underwriter through you expressly for use in the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, any Selling
Stockholder, or any such controlling person based on the Registration Statement,
the Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto, and in respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph (d), such Underwriter shall have the rights and
duties given to the Company by paragraph (b) above (except that if the Company
shall have assumed the defense thereof such 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 such
Underwriter's expense), and the Company, its directors, any such officer, the
Selling Stockholders, and any such controlling person shall have the rights and
duties given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which any Underwriter may
otherwise have.
If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a), (c) or (d) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders 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 Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the
23
Page 23
Company and the Selling Stockholders 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 (before deducting expenses) received by the Company and the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus; provided that, in the event that the Underwriters
shall have purchased any Additional Shares hereunder, any determination of the
relative benefits received by the Company, the Selling Stockholders or the
Underwriters from the offering of the Shares shall include the net proceeds
(before deducting expenses) received by the Company and the Selling
Stockholders, and the underwriting discounts and commissions received by the
Underwriters, from the sale of such Additional Shares, in each case computed on
the basis of the respective amounts set forth in the notes to the table on the
cover page of the Prospectus. The relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Stockholders on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by a 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 paragraph (e) above. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (e) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule II hereto (or
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Page 24
such numbers of Firm Shares increased as set forth in Section 12 hereof) and not
joint.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Stockholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or the Selling Stockholders or any person controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, its directors or officers, or
any person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
9.
Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares
hereunder are subject to the following conditions:
If, at the time this Agreement is executed and
delivered, it is necessary for the registration statement or a
post-effective amendment thereto to be declared effective before the
offering of the Shares may commence, the registration statement or such
post-effective amendment shall have become effective not later than
5:30 P.M., New York City time, on the date hereof, or at such later
date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall
have been timely made; no stop order suspending the effectiveness of
the registration statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, threatened by the Commission, and any
request of the Commission for additional information (to be included in
the registration statement or the prospectus or otherwise) shall have
been complied with to your
25
Page 25
satisfaction.
Subsequent to the effective date of this Agreement,
there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting the condition
(financial or other), business, properties, net worth, or results of
operations of the Company or any of its subsidiaries not contemplated
by the Prospectus, which in your opinion, as Representatives of the
several Underwriters, would materially adversely affect the market for
the Shares, or (ii) any event or development relating to or involving
the Company or any officer or director of the Company or any Selling
Stockholder which makes any statement made in the Prospectus untrue or
which, in the opinion of the Company and its counsel or the
Underwriters and their counsel, requires the making of any addition to
or change in the Prospectus in order to state a material fact required
by the Act or any other law to be stated therein or necessary in order
to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development
would, in your opinion, as Representatives of the several Underwriters,
materially adversely affect the market for the Shares.
All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Shares,
the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby, shall be reasonably satisfactory in all material respects to
counsel for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
Xxxxx Xxxx LLP shall have furnished to the Underwriters
their written opinion, as special counsel to the Company, addressed to
the Underwriters and dated the Closing Date or the Option Closing Date,
as the case may be, in form and substance reasonably satisfactory to
you, as Representatives of the several Underwriters, to the effect
that:
The Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion; the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the rules and
regulations of the Commission promulgated thereunder (the
"Rules and Regulations") specified in such opinion on the date
specified therein; and no stop order suspending the
effectiveness of the Registration Statement has been issued
and, to the best of such counsel's knowledge, no
26
Page 26
proceeding for that purpose is pending or threatened by the
Commission;
The Registration Statement and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus made by the Company
prior to the Closing Date (other than the financial statements
and related schedules and the other financial and statistical
information contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Act and the Rules and
Regulations; and each of the Incorporated Documents (other
than the financial statements and related schedules and the
other financial and statistical information contained therein,
as to which such counsel need express no opinion) complies as
to form in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder;
The authorized and outstanding capital stock
of the Company is as set forth under the caption
"Capitalization" in the Prospectus; and the authorized capital
stock of the Company conforms in all material respects as to
legal matters to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock";
The execution, delivery and performance of
this Agreement by the Company, the issuance and sale of the
Shares to be issued and sold by the Company hereunder and the
consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under (A) the
Revolving Credit, Guaranty and Security Agreement among The
Bank of New York Commercial Corporation, PNC Bank Ohio, N.A.,
the Company and the subsidiaries of the Company listed
therein, including Amendments 1,2,3,4 and 5 thereto, (B) the
11% Subordinated Convertible Debentures due October 1, 2005
(the "PMAC Debentures"), (C) the Indenture between the Company
and The Huntington National Bank, as Trustee (the "Indenture")
relating to the Company's 13 1/2% Senior Secured Notes due
2003 (the "Senior Secured Notes"), (E) the Senior Secured
Notes, (F), the Warrant Agreement between The Huntington
National Bank and the Company relating to the warrants issued
by the Company in connection with the issuance of the Senior
Secured Notes, (G) the Sunny Day Fund Loan to Xxxxxx Steel
Corporation Project in the amount of $4,000,000 for Xxxxxx
Steel Corporation Project, located in Koppel and Ambridge,
Beaver County, Pennsylvania and (H) the Warrant Agreement
dated as of
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October 4, 1990 in favor of GECC (the "GECC Warrant
Agreement"), nor will such actions result in any violation of
the provisions of the charter or by-laws of the Company or any
of its subsidiaries or any New York or federal statute or any
New York or federal order, rule or regulation known to such
counsel of any New York or federal court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets, except
when any of the same would not result in a material adverse
effect on the Company and any of its subsidiaries, taken as a
whole; and except for the registration of the Shares under the
Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Shares by
the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company, the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby; and
To the best of such counsel's knowledge,
there are no contracts, agreements or understandings between
the Company and any person granting such person the right to
require the Company to include securities owned or to be owned
by such person in the securities registered pursuant to the
Registration Statement, except pursuant to the GECC Warrant
Agreement or the PMAC Debentures.
Such counsel confirms that (x) to the best of such counsel's
knowledge, no action, suit or proceeding that is pending or overtly threatened
in writing against the Company or any of its subsidiaries before any court,
governmental agency, authority or body, or any arbitrator, of a character
required to be disclosed in the Registration Statement or Prospectus is not so
disclosed; (y) to the best of such counsel's knowledge, there is no contract or
other document of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit to the Registration
Statement, in either case under the Act, which is not so described or filed as
required or incorporated therein by reference as permitted by the Act; and (z)
although such counsel has not undertaken, except as otherwise indicated in their
opinion, to determine independently, and does not assume any responsibility for,
the accuracy or completeness of the statements in the Registration Statement,
such counsel has participated in the preparation of the Registration Statement
and the Prospectus, including review and discussion of the contents thereof
(including review and discussion of the contents of all
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Incorporated Documents), and nothing has come to the attention of such counsel
that has caused them to believe that the Registration Statement (including the
Incorporated Documents) at the time the Registration Statement became effective,
or the Prospectus, as of its date and as of the Closing Date or the Option
Closing Date, as the case may be, 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 any amendment or
supplement to the Prospectus, as of its respective date, and as of the Closing
Date or the Option Closing Date, as the case may be, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and the notes
thereto and the schedules and other financial and statistical data included in
the Registration Statement or the Prospectus or any Incorporated Document).
Xxxxxx, Xxxxxxxx & Xxxxxx shall have furnished to the
Underwriters their written opinion, as counsel to the Company,
addressed to the Underwriters and dated the Closing Date or Option
Closing Date, as the case may be, in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
The Company, Newport Steel Corporation
("Newport") and Northern Kentucky Management, Inc.
("Management") have been duly incorporated and are validly
existing as corporations in good standing under the laws of
the Commonwealth of Kentucky. Imperial Adhesives, Inc.
("Imperial") is duly qualified to do business and is in good
standing as a foreign corporation in the States of North
Carolina, Virginia, Tennessee, Massachusetts and Texas. Xxxxxx
Steel Corporation ("Xxxxxx") is duly qualified to do business
and is in good standing as a foreign corporation in the State
of Oklahoma. Newport, Xxxxxx and Imperial are each duly
qualified to do business and are in good standing as foreign
corporations in the State of Texas. Each of the Company,
Newport, Management, Xxxxxx, Erlanger Tubular Corporation
("Erlanger") and Imperial has all power and authority
necessary to own or hold its respective properties and to
conduct the businesses in which they are engaged;
The Company has the authorized
capitalization set forth in the Prospectus, and all of the
issued shares of capital stock of the Company, including the
Shares being offered by the Selling Stockholders, have been
duly and validly authorized and issued, are fully paid and
non-assessable and conform
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Page 29
to the description thereof contained in the Prospectus; the
issuance and sale of the Shares is not subject to preemptive
rights arising by operation of law; the stockholders of the
Company have no preemptive rights provided by statute or the
articles of incorporation of the Company with respect to the
Shares; the issuance of the Shares has been duly and validly
authorized, and the Shares, when issued, paid for and
delivered in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable, free and clear of all
liens, encumbrances, equities and claims or restrictions on
transferability or voting, and to our knowledge no holder of
any securities of the Company has preemptive rights applicable
to the Shares; the form of certificates for the Shares
conforms to the requirements of the Kentucky Business
Corporation Act and all of the issued shares of capital stock
of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable
and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
The Company has the corporate power and
authority to execute and deliver this Agreement and to perform
its obligations hereunder; and all corporate action required
to be taken by the Company for the due and proper
authorization, execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have
been duly and validly taken;
This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid
and binding agreement of the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar
laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of
good faith and fair dealing;
Xxxxxx has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the Commonwealth of Pennsylvania. Imperial is not
required to qualify as a foreign corporation in the
Commonwealth of Pennsylvania. Koppel has all power and
authority necessary to own or hold its respective properties
and to conduct the business in which it is engaged;
Neither the Company, Newport, Management
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or Xxxxxx is in violation of its respective certificate or
articles of incorporation or bylaws, or to the best knowledge
of such counsel after reasonable inquiry, is in default in the
performance of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence of
indebtedness, except as may be disclosed in the Prospectus;
To the best of such counsel's knowledge
after reasonable inquiry and except as set forth in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any
of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, are
reasonably likely to have a material adverse effect on the
condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries
taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
To the best knowledge of such counsel after
reasonable inquiry, there are no material agreements,
contracts, indentures, leases or other instruments to which
the Company or any of its subsidiaries is a party or to which
the Company or any of its subsidiaries is subject that are not
described in the Registration Statement or the Prospectus (or
any amendment or supplement thereto) or filed as an exhibit to
the Registration Statement or any Incorporated Documents;
To the best knowledge of such counsel after
reasonable inquiry, neither the Company nor any of the
Subsidiaries is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable
to the Company or any of the Subsidiaries or of any decree of
any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries;
The execution, delivery and performance of
this Agreement by the Company, the issuance and sale of the
Shares to be issued and sold by the Company hereunder and the
consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement, or other
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Page 31
agreement or instrument known or which reasonably should be
known to such counsel to which the Company or any of its
subsidiaries is a party or to which the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the articles or by-laws of the
Company or any of its subsidiaries or any Kentucky or any
Kentucky order, rule or regulation known to such counsel of
any Kentucky court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets, except when any of the same
would not result in a material adverse effect on the Company
and any of its subsidiaries, taken as a whole; and
Except as described in the Prospectus, there
are no outstanding options, warrants or other rights calling
for the issuance of, and such counsel does not know of any
commitment, plan or arrangement to issue any shares of capital
stock of the Company or any security convertible into or
exchangeable or exercisable for capital stock of the Company.
Xxxxxx Xxxxxx, Esq., counsel to GECC, [
], counsel to PMAC, and [ ], counsel to the other
Selling Stockholders listed in Part A of Schedule I hereto, each shall
have furnished to the Underwriters their written opinion, addressed to
the Underwriters and dated the Closing Date or the Option Closing Date,
as the case may be, in form and substance reasonably satisfactory to
the Underwriters, to the effect that:
This Agreement and the Custody Agreement
have each been duly executed and delivered by or on behalf of
such Selling Stockholder and are valid and binding agreements
of such Selling Stockholder enforceable against such Selling
Stockholder in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing;
To the knowledge of such counsel, such
Selling Stockholder has full legal right, power and
authorization, and any approval required by law, to sell,
assign, transfer and deliver good and marketable title to the
Shares which such Selling Stockholder has agreed to sell
pursuant to this Agreement;
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Page 32
The execution and delivery of this Agreement
and the Custody Agreement by such Selling Stockholder and the
consummation of the transactions contemplated hereby and
thereby will not conflict with, violate, result in a breach of
or constitute a default under the terms or provisions of any
agreement, indenture, mortgage or other instrument known to
such counsel to which such Selling Stockholder is a party or
by which it or any of its assets or property is bound, or any
court order or decree or any law, rule, or regulation
applicable to such Selling Stockholder or to any of the
property or assets of such Selling Stockholder; and
Upon delivery of the Shares by such Selling
Stockholder pursuant to this Agreement and payment therefor as
contemplated herein the Underwriters will acquire good and
marketable title to such Shares, free and clear of any lien,
claim, security interest or other encumbrance, restriction on
transfer or other defect in title.
The Representatives shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to such matters as the
Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
enabling them to pass upon such matters.
(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been taken or, to the knowledge of the Company,
shall be contemplated by the Commission at or prior to the Closing
Date; (ii) there shall not have been any change in the capital stock of
the Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of business)
from that set forth or contemplated in the Registration Statement or
the Prospectus (or any amendment or Supplement thereto); (iii) there
shall not have been, since the respective dates as of which information
is given in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), except as may otherwise be stated in
the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition
(financial or other), business, prospects, properties, net worth or
results of operations of the Company and its subsidiaries taken as a
whole; (iv) the Company and its subsidiaries shall not have any
liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Company and its
subsidiaries, taken as a whole, other than
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Page 33
those reflected in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and (v) all the representations and
warranties of the Company contained in this Agreement shall be true and
correct on and as of the date hereof and on and as of the Closing Date
as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or such other
officers as are acceptable to you), to the effect set forth in this
Section 10(h) and in Section 10(j) hereof.
You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof
and the Closing Date from Xxxxxx Xxxxxxxx LLP, independent certified
public accountants, substantially in the forms heretofore approved by
you.
The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements
herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on
and as of the date hereof and on and as of the Closing Date as if made
on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by or on behalf of the
Selling Stockholders to the effect set forth in this Section 10(k) and
in Section 10(l) hereof.
The Selling Stockholders shall not have failed at or
prior to the Closing Date to have performed or complied with any of
their agreements herein contained and required to be performed or
complied with by them hereunder at or prior to the Closing Date.
Prior to the Closing Date the Shares of Common Stock
which the Company agrees to sell pursuant to this Agreement shall have
been listed, subject to notice of issuance, on the New York Stock
Exchange.
The Sellers shall have furnished or caused to be
furnished to you such further certificates and documents as you shall
have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the
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Page 34
Company or any Attorney-in-Fact or any Selling Stockholder and delivered to you,
as Representatives of the Underwriters, or to counsel for the Underwriters,
shall be deemed a representation and warranty by the Company, the Selling
Stockholders or the particular Selling Stockholder, as the case may be, to each
Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 10, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (d) through (k) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (d) through
(g) of this Section 10 shall be revised to reflect the sale of Additional
Shares.
Expenses. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance of the
obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the registration statement, each
Prepricing Prospectus, the Prospectus, the Incorporated Documents, and all
amendments or supplements to any of them, as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares,
including any stamp taxes in connection with the original issuance and sale of
the Shares; (iv) the printing (or reproduction) and delivery of this Agreement,
the Blue Sky Memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Shares; (v) the
listing of the Shares on the New York Stock Exchange; (vi) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states as provided in Section 5(g) hereof (including the
reasonable fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and delivery of the Blue
Sky Memorandum and such registration and qualification); (vii) the filing fees
and the fees and expenses of counsel for the Underwriters in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc.; (viii) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Shares; and (ix) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; provided, that the Selling Stockholders shall be
obligated to pay, on a pro rata
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basis, for all incremental registration and qualification fees and expenses
(including Underwriters' discounts and commissions), and any incremental costs
and disbursements (including legal fees and commissions) that result from the
inclusion of the Shares being offered by each of them (including any additional
shares which the Underwriters shall have elected to purchase). In addition, each
Selling Stockholder shall pay the fees and expenses of its own legal counsel.
Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the Company,
by notifying you, or by you, as Representatives of the several Underwriters, by
notifying the Company and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters are obligated but fail or refuse to purchase is not more than
one-tenth of the aggregate number of Shares which the Underwriters are obligated
to purchase on the Closing Date, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule II hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Xxxxx Xxxxxx Inc., to purchase the Shares
which such defaulting Underwriter or Underwriters are obligated, but fail or
refuse, to purchase. If any one or more of the Underwriters shall fail or refuse
to purchase Shares which it or they are obligated to purchase on the Closing
Date and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting Underwriters or other party or parties approved by you and
the Company are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven calendar days, in order that
the required changes, if any, in the Registration Statement and the Prospectus
or any other documents
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or arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any such default
of any such Underwriter under this Agreement. The term "Underwriter" as used in
this Agreement includes, for all purposes of this Agreement, any party not
listed in Schedule I hereto who, with your approval and the approval of the
Company, purchases Shares which a defaulting Underwriter is obligated, but fails
or refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or any Selling Stockholder, by notice to the Company,
if prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York or Kentucky shall have been declared by either federal or state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the Shares
at the offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside cover page, and the statements in the first, third and seventh paragraphs
under the caption "Underwriting" in any Prepricing Prospectus and in the
Prospectus, constitute the only information furnished by or on behalf of the
Underwriters through you as such information is referred to in Sections 7(b) and
9 hereof. The first paragraph under the caption "Underwriting" will contain the
names and participations of the underwriters; the third paragraph will contain
the selling concession and the reallowance.
Miscellaneous. Except as otherwise provided in Sections 5, 12
and 13 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to the Company, at the office of the
Company at X.X. Xxx 0000, Xxxxx & Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000,
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Attention: Treasurer; or (ii) if to the Selling Stockholders, at
___________________, Attention: _______________, or (iii) if to you, as
Representatives of the several Underwriters, care of Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 9 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Shares in his
status as such purchaser.
Applicable Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
NS GROUP, INC.
By _____________________________
Name:
Title:
Each of the Selling Stockholders
named in Schedule I hereto
By _____________________________
Attorney-in-Fact
By _____________________________
Attorney-in-Fact
Confirmed as of the date first above mentioned on behalf of themselves and the
other several Underwriters named in Schedule II
hereto.
XXXXX XXXXXX INC.
XXXXXXXX & COMPANY SECURITIES, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives of the Several Underwriters
By XXXXX XXXXXX INC.
By _____________________________
Name:
Title:
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SCHEDULE I
NS GROUP, INC.
Part A - Firm Shares
Number of
Selling Stockholders Firm Shares
-------------------- -----------
Xxxxxx Xxxxxx 550,000
X.X. Xxxxxx and X.X. Xxxxxx, Trustees 450,000
General Electric Capital Corporation 500,000
---------
Total.......... 1,500,000
=========
Part B - Additional Shares1
Selling Stockholders Number of
-------------------- Additional Shares
-----------------
Xxxxxx Xxxxxx 365,584
X. X. Xxxxxx and X.X. Xxxxxx, Trustees 69,116
Xxxx X. Xxxxx 100,000
R. Xxxx Xxxxxxxx 30,000
Xxxxxxx X.X. Xxxxxxxx 20,000
-------
Total........ 584,700
=======
[Footnote]
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SCHEDULE II
NS GROUP, INC.
Number of
Underwriter Firm Shares
----------- -----------
Xxxxx Xxxxxx Inc.
XxXxxxxx & Company Securities, Inc.
Xxxxxxx Xxxxx & Associates, Inc
---------
Total..... 7,500,000
=========
