7,000,000 Shares of Common Stock
IMC MORTGAGE COMPANY
UNDERWRITING AGREEMENT
, 1997
BEAR, XXXXXXX & CO. INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXXXXXX & CO., INC.
PAINEWEBBER INCORPORATED
as Representatives of the
several Underwriters named
in Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
IMC Mortgage Company, a corporation organized and existing under
the laws of the State of Florida (the "Company"), proposes to issue and sell,
and the persons named in Schedule II hereto (the "Firm Shares Selling
Shareholders") propose to sell, subject to the terms and conditions stated
herein, to the several underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 7,000,000 shares (the "Firm Shares") of common
stock, par value $0.01 per share of the Company (the "Common Stock"), of which
5,600,000 shares are to be issued and sold by the Company and an aggregate of
1,400,000 shares are to be sold by the Firm Shares Selling Shareholders in the
respective amounts set forth opposite their names in Schedule II. In addition,
for the sole purpose of covering over-allotments in connection with the sale of
the Firm Shares, the Company proposes to issue and sell, and the persons named
in Schedule III hereto (the "Additional Shares Selling Shareholders" and,
together with those persons named in Schedule II hereto, the "Selling
Shareholders") propose to sell, at the option of the Underwriters, up to an
additional 1,050,000 shares (the "Additional Shares") of Common Stock. The Firm
Shares and any Additional Shares
purchased by the Underwriters are referred to herein as the "Shares." The Shares
are more fully described in the Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and amendments thereto,
on Form S-1 (No. 333-21823), for the registration of the Shares under the
Securities Act of 1933, as amended (the "Act"). Such registration statement,
including the prospectus, financial statements and schedules, exhibits and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the registration statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A
of the Rules and Regulations of the Commission under the Act (the
"Regulations"), is herein called the "Registration Statement" and the
prospectus, in the form first filed with the Commission pursuant to Rule 424(b)
of the Regulations or filed as part of the Registration Statement at the time of
effectiveness if no Rule 424(b) filing is required, is herein called the
"Prospectus." The term "preliminary prospectus" as used herein means a
preliminary prospectus as described in Rule 430 of the Regulations.
(b) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) of the Regulations, when any supplement to or amendment
of the Prospectus is filed with the Commission and at the Closing Date and the
Additional Closing Date, if any (as hereinafter respectively defined), the
Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with the
applicable provisions of the Act and the Regulations and do not or will not
contain an untrue statement of a material fact and do not or will not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein (i) in the case of the Registration Statement, not
misleading and (ii) in the case of the Prospectus, in light of the circumstances
under which they were made, not misleading. When any related preliminary
prospectus was first filed with the Commission (whether filed as part of the
registration statement for the registration of the Shares or any amendment
thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment
thereof or supplement thereto was first filed with the Commission, such
preliminary prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the Act and
the Regulations and did not contain an untrue statement of a material fact and
did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein in light of the circumstances
under which they were made not misleading. No representation or warranty is made
in this subsection (b), however, with respect to any information contained in or
omitted from the Registration Statement or the Prospectus or any related
preliminary prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any
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Underwriter through you as herein stated expressly for use in connection with
the preparation thereof.
(c) Coopers & Xxxxxxx L.L.P., who have certified the
financial statements and supporting schedules included in the Registration
Statement, are independent public accountants as required by the Act and the
Regulations.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has been no
material adverse change in the business, prospects, properties, operations,
financial condition or results of operations of the Company, its subsidiaries
and Industry Mortgage Company, L.P. (the "Partnership") taken as a whole,
whether or not arising from transactions in the ordinary course of business, and
since the date of the latest balance sheet presented in the Registration
Statement and the Prospectus, neither the Company, any of its subsidiaries nor
the Partnership has incurred or undertaken any liabilities or obligations,
direct or contingent, which are material to the Company, its subsidiaries and
the Partnership taken as a whole, except for (i) liabilities or obligations
which are reflected in the Registration Statement and the Prospectus and (ii)
borrowings pursuant to written loan arrangements existing as of the date hereof
incurred by the Company in the ordinary course of its business consistent with
past practice.
(e) This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Company and this Agreement
has been duly and validly executed and delivered by the Company.
(f) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company, any of its subsidiaries or the Partnership pursuant to, any
agreement, instrument, franchise, license or permit to which the Company, any of
its subsidiaries or the Partnership is a party or by which any of such entities
or their respective properties or assets may be bound or (ii) violate or
conflict with any provision of the certificate of incorporation or by-laws or
other organizational documents of the Company, any of its subsidiaries or the
Partnership or any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over any of such entities or any of their respective properties or
assets. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over any of such
entities or any of their respective properties or assets is required for the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, including the issuance, sale and delivery of
the Shares to be issued, sold and delivered by the Company hereunder, except the
registration under the Act of the Shares and such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses and
permits as may be
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required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters or pursuant to the Corporate
Financing Rules of the National Association of Securities Dealers, Inc.
(g) All of the outstanding shares of capital stock of the
Company are duly and validly authorized and issued, fully paid and
non-assessable and were not issued and are not now in violation of or subject to
any preemptive rights created by the Partnership or the Company or by any
statute, law, rule or regulation. None of the outstanding shares of capital
stock of the Company, nor any securities convertible into shares of such capital
stock or exchangeable therefor, were issued in violation of the provisions of
Section 5 of the Act. The Shares, when issued, delivered and sold in accordance
with this Agreement, will be duly and validly issued and outstanding, fully paid
and non-assessable, and will not have been issued in violation of or be subject
to any preemptive rights. The Company had, at December 31, 1996, an authorized
and outstanding capitalization as set forth in the Registration Statement and
the Prospectus. The Common Stock, the Firm Shares and the Additional Shares
conform to the descriptions thereof contained in the Registration Statement and
the Prospectus.
(h) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. The Partnership has been duly
organized and is validly existing as a limited partnership in good standing
under the laws of the State of Delaware. Each of the Company, its subsidiaries
and the Partnership is duly qualified and in good standing as a foreign
corporation or limited partnership, as the case may be, in each jurisdiction in
which the character or location of its properties (owned, leased or licensed) or
the nature or conduct of its business makes such qualification necessary, except
for those failures to be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Company, its subsidiaries and
the Partnership taken as a whole. Each of the Company, its subsidiaries and the
Partnership has all requisite power and authority, and all necessary material
consents, approvals, authorizations, orders, registrations, qualifications,
licenses and permits of and from all public, regulatory or governmental agencies
and bodies, to own, lease, license and operate its properties and conduct its
business as now being conducted and as described in the Registration Statement
and the Prospectus, and no such consent, approval, authorization, order,
registration, qualification, license or permit contains a materially burdensome
restriction not adequately disclosed in the Registration Statement and the
Prospectus. All of the issued and outstanding capital stock of each corporate
subsidiary of the Company has been duly and validly issued and is fully paid and
non-assessable and was not issued in violation of preemptive rights created by
the Partnership or the Company or by any statute, law, rule or regulation and is
owned directly or indirectly by the Company, free and clear of any lien,
encumbrance, claim, security interest, restriction on transfer, shareholders'
agreement, voting trust or other defect of title whatsoever. All of the
outstanding limited and general partnership interests in the Partnership have
been duly and validly issued and were not issued in violation of preemptive
rights and are owned directly or indirectly by the Company,
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free and clear of any lien, encumbrance, claim, security interest, restriction
on transfer, voting trust or other defect of title whatsoever.
(i) Except as described in the Prospectus, there is no
litigation or governmental proceeding to which the Company, any of its
subsidiaries or the Partnership is a party or to which any property of the
Company, any of its subsidiaries or the Partnership is subject or which is
pending or, to the knowledge of the Company, contemplated against the Company,
any of its subsidiaries or the Partnership which might result in any material
adverse change in the business, prospects, properties, operations, financial
condition or results of operations of the Company, its subsidiaries and the
Partnership taken as a whole or which is required to be disclosed in the
Registration Statement and the Prospectus.
(j) The Company has not taken and will not take, directly
or indirectly, any action designed to cause or result in, or which constitutes
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the sale
or resale of the Shares.
(k) The financial statements, including the notes thereto,
and supporting schedules included in the Registration Statement and the
Prospectus present fairly the financial position of the Company as of the dates
indicated and the results of its operations for the periods specified; except as
otherwise stated in the Registration Statement, said financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein.
(l) Except as described in the Prospectus, no holder of
securities of the Company has any rights to the registration of securities of
the Company because of the filing of the Registration Statement or otherwise in
connection with the sale of the Shares contemplated hereby, except for such
rights as have been waived with respect to the sale of the Shares contemplated
hereby.
(m) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration as an
"investment company" under the Investment Company Act of 1940.
(n) The Shares are listed for inclusion on The Nasdaq
National Market.
2. Representations and Warranties of the Selling Shareholders.
Each of the Selling Shareholders, severally and not jointly, represents and
warrants to the Underwriters as to itself that:
(a) Such Selling Shareholder is the lawful owner of the
number of Shares, or securities convertible into or warrants exercisable for the
number of Shares, to be sold by such Selling Shareholder pursuant to this
Agreement and, at the time of delivery
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thereof, will be the lawful owner of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement and will have valid and marketable title
to such Shares, and upon delivery of and payment for such Shares the
Underwriters will acquire valid and marketable title to such Shares free and
clear of any claim, lien, encumbrance, security interest, community property
right, restriction on transfer or other defect in title (other than any such
claim, lien, encumbrance, security interest, community property right,
restriction on transfer or other defect in title created by any Underwriter),
assuming each of the Underwriters has purchased the Shares purchased by it in
good faith and without notice of any adverse claim.
(b) Such Selling Shareholder has and at the time of
delivery of such Shares will have full legal right, power and capacity, and any
approval required by law (other than state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters), to sell, assign, transfer and deliver such Shares in the manner
provided in this Agreement.
(c) This Agreement has been duly authorized, executed and
delivered by such Selling Shareholder. The Power of Attorney executed by the
Selling Shareholders (the "Power of Attorney") and the Custody Agreement among
the Selling Shareholders and Xxxxx Xxxxxx, P.A. (the "Custody Agreement") have
been duly executed and delivered by such Selling Shareholder and are legal,
valid and binding agreements of such Selling Shareholder, enforceable in
accordance with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general principles of equity.
(d) Such Selling Shareholder has duly and irrevocably
authorized the Attorney in Fact (as defined in the Power of Attorney), on behalf
of such Selling Shareholder, to execute and deliver this Agreement and any other
document necessary or desirable in connection with the transactions contemplated
hereby and to deliver the Shares to be sold by such Selling Shareholder and
receive payment therefor pursuant hereto.
(e) The sale of the Shares by such Selling Shareholder
pursuant hereto is not prompted by any material adverse information concerning
the Company, and all information furnished in writing by or on behalf of such
Selling Shareholder specifically for use in the Registration Statement and the
Prospectus, and any supplement or amendment thereto, is and will be when the
Registration Statement became effective and at all times subsequent thereto up
to the Closing Date and any Additional Closing Date true and correct and
complete and at all such times did not and will not contain any untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(f) The consummation of the transactions contemplated
hereby and by the Power of Attorney and the Custody Agreement and the
fulfillment of the terms hereof and thereof will not constitute a breach or
violation of or default under any trust, indenture,
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agreement or other instrument to which such Selling Shareholder is a party or by
which any such Selling Shareholder is bound.
[(g) Such Selling Shareholder has no reason to believe
that any representation or warranty made by the Company in this Agreement is not
true and complete.]
(h) The execution, delivery and performance of this
Agreement and the Power of Attorney and the Custody Agreement and the
consummation of the transactions contemplated hereby and thereby by such Selling
Shareholder do not and will not (A) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of such Selling Shareholder pursuant to, any agreement,
instrument, franchise, license or permit to which such Selling Shareholder is a
party or by which its properties or assets may be bound, or (B) violate or
conflict with any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over such Selling Shareholder or any of its properties or assets.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company and each Firm Shares Selling
Shareholder, severally and not jointly, agrees to sell to the Underwriters and
the Underwriters, severally and not jointly, agree to purchase from the Company
and each Firm Shares Selling Shareholder, at a purchase price per share of
$____, the number of Firm Shares which bears the same proportion to the number
of Firm Shares to be sold by the Company or by that Firm Shares Selling
Shareholder, as the case may be, as the number of Firm Shares set forth opposite
the respective names of the Underwriters in Schedule I hereto bears to the total
number of Firm Shares to be sold by the Company and the Firm Shares Selling
Shareholders, plus any additional number of Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Firm Shares shall be made at the office of Xxxxxx, Xxxx &
Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place
as shall be agreed upon by you, the Firm Shares Selling Shareholders and the
Company, at 10:00 A.M. on the third business day (unless postponed in accordance
with the provisions of Section 11 hereof) following the date of the
effectiveness of the Registration Statement (or, if the Company has elected to
rely upon Rule 430A of the Regulations, the third business day after the
determination of the public offering price of the Shares), or such other time
not later than ten business days after such date as shall be agreed upon by you,
the Firm Shares Selling Shareholders and the Company (such time and date of
payment and delivery being herein called the "Closing Date"). Payment shall be
made to the Company and the Attorney in Fact on behalf of the Firm Shares
Selling Shareholders by wire transfer or certified or official bank check or
checks
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drawn in same day funds payable to the order of the Company and the Attorney in
Fact, against delivery to you for the respective accounts of the Underwriters of
certificates for the Shares to be purchased by them. Certificates for the Firm
Shares shall be registered in such name or names and in such authorized
denominations as you may request in writing at least two full business days
prior to the Closing Date. The Company and the Firm Shares Selling Shareholders
will permit you to examine and package such certificates for delivery at least
one full business day prior to the Closing Date.
(c) In addition, the Company hereby grants to the
Underwriters the option to purchase from the Company up to __________ Additional
Shares, and, if such option is exercised in full, the Additional Shares Selling
Shareholders severally hereby grant to the Underwriters the option to purchase
up to an aggregate of _________ Additional Shares in the respective amounts set
forth opposite the names of such Additional Shares Selling Shareholders on
Schedule III hereto, at the same purchase price per share to be paid by the
Underwriters to the Company and the Firm Shares Selling Shareholders for the
Firm Shares as set forth in this Section 3, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the Underwriters. This option may
be exercised at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by you to the Company
and the Additional Shares Selling Shareholders. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised
and the date and time, as reasonably determined by you, when the Additional
Shares are to be delivered (such date and time being herein sometimes referred
to as the "Additional Closing Date"); provided, however, that the Additional
Closing Date shall not be earlier than the Closing Date or earlier than the
second full business day after the date on which the option shall have been
exercised nor later than the eighth full business day after the date on which
the option shall have been exercised (unless such time and date are postponed in
accordance with the provisions of Section 11 hereof). If the option granted
hereby is exercised in part but in excess of the ________ Additional Shares to
be sold by the Company, the respective number of Additional Shares to be sold by
each of the Additional Shares Selling Shareholders listed on Schedule III hereto
shall be determined on a pro rata basis in accordance with the percentages set
forth opposite their names on Schedule III hereto, adjusted by you in such
manner as to avoid fractional shares. Certificates for the Additional Shares
shall be registered in such name or names and in such authorized denominations
as you may request in writing at least two full business days prior to the
Additional Closing Date. The Company and the Additional Shares Selling
Shareholders will permit you to examine and package such certificates for
delivery at least one business day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same ratio to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 11 hereof) bears to 7,000,000, subject,
however, to such adjustments to eliminate any fractional shares as you in your
sole discretion shall make.
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Payment for the Additional Shares shall be made by wire transfer
or certified or official bank check or checks, in same day funds, payable to the
order of the Company or the Attorney in Fact, at the offices of Xxxxxx, Xxxx &
Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location
as may be mutually acceptable, upon delivery of the certificates for the
Additional Shares to you for the respective accounts of the Underwriters.
4. Offering. Upon your authorization of the release of the Firm
Shares, the Underwriters propose to offer the Shares for sale to the public upon
the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriters that:
(a) If the Registration Statement has not yet been
declared effective, the Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective as
promptly as possible, and if Rule 430A is used or the filing of the Prospectus
is otherwise required under Rule 424(b), the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b) within
the prescribed time period and will provide evidence satisfactory to you of such
timely filing.
The Company will notify you immediately (and, if requested
by you will confirm such notice in writing) (i) when the Registration Statement
and any amendments thereto become effective, (ii) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (iii) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or of the initiation, or the threatening,
of any proceedings therefor, (v) of the receipt of any comments from the
Commission and (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every reasonable effort to prevent the issuance of any such
stop order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not file any amendment to the Registration Statement
or any amendment of or supplement to the Prospectus (including the prospectus
required to be filed pursuant to Rule 424(b)) that differs from the prospectus
on file at the time of the effectiveness of the Registration Statement before or
after the effective date of the Registration Statement to which you shall
reasonably object in writing after being timely furnished in advance a copy
thereof.
(b) If at any time when a prospectus relating to the
Shares is required to be delivered under the Act any event shall have occurred
as a result of which the Prospectus as then amended or supplemented includes an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the
9
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the Act or
the Regulations, the Company will notify you promptly and prepare and file with
the Commission an appropriate amendment or supplement (in form and substance
reasonably satisfactory to you) which will correct such statement or omission
and will use its best efforts to have any amendment to the Registration
Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you five signed
copies of the Registration Statement, including exhibits and all amendments
thereto, and the Company will promptly deliver to each of the Underwriters such
number of copies of any preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any, as
you may reasonably request.
(d) The Company will endeavor in good faith, in
cooperation with you, at or prior to the time of effectiveness of the
Registration Statement, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of such
jurisdictions as you may designate and to maintain such qualification in effect
for so long as required for the distribution thereof; except that in no event
shall the Company be obligated in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Act) to its security holders and to you as soon
as practicable, but not later than 90 days after the end of its fiscal quarter
in which the first anniversary date of the effective date of the Registration
Statement occurs, an earning statement (in form complying with the provisions of
Rule 158 of the Regulations) covering a period of at least twelve consecutive
months beginning after the effective date of the Registration Statement.
(f) During the period of 90 days from the Closing Date,
the Company will not, without your prior written consent, issue, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of,
directly or indirectly, any Common Stock (or any securities convertible into,
exercisable for or exchangeable for Common Stock), and the Company will obtain
the undertaking of each of its officers and directors and such of its
shareholders as have been heretofore designated by you and listed on Schedule IV
hereto not to engage in any of the aforementioned transactions on their own
behalf, other than the Company's sale of Shares hereunder, the Company's
issuance of Common Stock upon the exercise of presently outstanding stock
options, the Company's issuance of up to 5,000,000 unregistered shares in
connection with one or more acquisitions by the Company, the Company's grants of
options under its existing stock option plans and the Company's issuance of
shares under its existing employee stock purchase plan.
(g) During a period of three years from the effective date
of the Registration Statement, the Company will furnish to you copies of (i) all
reports to its
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shareholders; and (ii) all reports, financial statements and proxy or
information statements filed by the Company with the Commission or any national
securities exchange.
(h) The Company will apply the proceeds from the sale of
the Shares sold by the Company as set forth under "Use of Proceeds" in the
Prospectus.
6. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident to the
performance of the obligations of the Company and the Selling Shareholders
hereunder, including those in connection with (i) preparing, printing,
duplicating, filing and distributing the Registration Statement, as originally
filed and all amendments thereof (including all exhibits thereto), any
preliminary prospectus, the Prospectus and any amendments or supplements thereto
(including, without limitation, fees and expenses of the Company's accountants
and counsel), the underwriting documents (including this Agreement and the
Agreement Among Underwriters) and all other documents related to the public
offering of the Shares (including those supplied to the Underwriters in
quantities as hereinabove stated), (ii) the issuance, transfer and delivery of
the Shares to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the qualification of the Shares under state or foreign securities
or Blue Sky laws, including the costs of printing and mailing a preliminary and
final Blue Sky Survey and the fees of counsel for the Underwriters and such
counsel's reasonable disbursements in relation thereto, (iv) the listing of the
Shares on The Nasdaq National Market, (v) filing fees of the Commission and the
National Association of Securities Dealers, Inc., (vi) the cost of printing
certificates representing the Shares and (vii) the cost and charges of any
transfer agent or registrar.
7. Covenant of the Selling Shareholders. Each Selling Shareholder
agrees that, during the period of 90 days from the Closing Date, such Selling
Shareholder will not, without your prior written consent, offer, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of,
directly or indirectly, any Common Stock (or any securities convertible into,
exercisable for or exchangeable for Common Stock) other than the sale of Shares
to you hereunder.
8. Conditions of the Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
herein contained, as of the date hereof and as of the Closing Date (for purposes
of this Section 8, "Closing Date" shall refer to the Closing Date for the Firm
Shares and any Additional Closing Date, if different, for the Additional
Shares), to the absence from any certificates, opinions, written statements or
letters furnished to you or to Xxxxxx, Xxxx & Xxxxxxxx LLP ("Underwriters'
Counsel") pursuant to this Section 8 of any material misstatement or omission,
to the performance in all material respects by each of the Company and the
Selling Shareholders of its or their obligations hereunder, and to the following
additional conditions:
11
(a) The Registration Statement shall have become effective
not later than 5:30 P.M., New York time, on the date of this Agreement or at
such later time and date as shall have been consented to in writing by you; if
the Company shall have elected to rely upon Rule 430A of the Regulations, the
Prospectus shall have been filed with the Commission in a timely fashion in
accordance with Section 5(a) hereof; and, at or prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof shall have been issued and no proceedings
therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the
opinion of Kramer, Levin, Naftalis & Xxxxxxx, counsel for the Company, dated the
Closing Date addressed to the Underwriters and in form and substance reasonably
satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Florida. The Partnership has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the
State of Delaware.
(ii) The Shares to be delivered by the Company on the
Closing Date or the Additional Closing Date have been duly and validly
authorized and, when delivered by the Company in accordance with this
Agreement, will be duly and validly issued, fully paid and
non-assessable and will not have been issued in violation of or subject
to any preemptive rights. The Shares to be delivered by the Selling
Shareholders on the Closing Date or the Additional Closing Date have
been duly and validly authorized and issued, are fully paid and
non-assessable and were not issued in violation of or subject to any
preemptive rights. The Common Stock, the Firm Shares and the Additional
Shares conform to the descriptions thereof contained in the Registration
Statement and the Prospectus.
(iii) The Shares to be sold under this Agreement to
the Underwriters are duly listed on The Nasdaq National Market.
(iv) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(v) To the best of such counsel's knowledge, there
is no litigation or governmental or other action, suit, proceeding or
investigation before any court or before or by any public, regulatory or
governmental agency or body pending or threatened against, or involving
the properties or business of, the Company, any of its subsidiaries or
the Partnership, which is of a character required to be disclosed in the
Registration Statement and the Prospectus which has not been properly
disclosed therein.
12
(vi) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby
by the Company do not and will not (A) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default
(or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company, any of its subsidiaries or the Partnership pursuant to, any
agreement, instrument, franchise, license or permit referred to in or
filed as an exhibit to the Registration Statement or otherwise known to
such counsel to which the Company, any of its subsidiaries or the
Partnership is a party or by which any of such entities or their
respective properties or assets may be bound or (B) violate or conflict
with any provision of the certificate of incorporation or by-laws or
other organizational documents of the Company, any of its subsidiaries
or the Partnership, or, to the best knowledge of such counsel, violate
or conflict with any judgment, decree, order, statute (other than state
securities or Blue Sky laws), rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction
over the Company, any of its subsidiaries or the Partnership or any of
their respective properties or assets. No consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental, or regulatory
agency or body having jurisdiction over the Company, any of its
subsidiaries or the Partnership or any of their respective properties or
assets is required for the execution, delivery and performance by the
Company of this Agreement or the consummation by the Company of the
transactions contemplated hereby, except for (1) such as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters or pursuant to the
Corporate Financing Rule of the National Association of Securities
Dealers, Inc. (as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act.
(vii) The Registration Statement and the Prospectus
and any amendments thereof or supplements thereto (other than the
financial statements and schedules and other financial data included or
incorporated by reference therein, as to which no opinion need be
rendered) comply as to form in all material respects with the
requirements of the Act and the Regulations.
(viii) The Registration Statement is effective under
the Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued and, to the best
knowledge of such counsel, no proceedings therefor have been initiated
or threatened by the Commission and all filings required by Rule 424(b)
of the Regulations have been made.
In addition, such opinion shall also state that although
such counsel has not undertaken, except as otherwise indicated in their
opinions, to determine independently, and does not assume any responsibility
for, the accuracy or completeness of the statements in
13
the Registration Statement, such counsel has participated in the preparation of
the Registration Statement and the Prospectus, including a review and discussion
of the contents thereof, and nothing has come to the attention of such counsel
that has caused it to believe that the Registration Statement at the time the
Registration Statement became effective (including the information deemed to be
part of the Registration Statement at the time of effectiveness pursuant to Rule
430A(b), if applicable), or the Prospectus, as of its date and as of the Closing
Date or the Additional Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein (as to the
Prospectus, in the light of the circumstances under which they were made) not
misleading or that any amendment or supplement to the Registration Statement or
the Prospectus, as of its respective date, and as of the Closing Date or the
Additional Closing Date, as the case may be, contained or contains an untrue
statement of a material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements therein (as to
the Prospectus, in the light of the circumstances under which they were made)
not misleading (it being understood that such counsel need express no statement
with respect to the financial statements and notes thereto and the schedules and
other financial and statistical data included in the Registration Statement or
Prospectus).
In rendering such opinion, such counsel may rely: (A) as
to matters involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters'
Counsel, familiar with the applicable laws; and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and certificates or other written statements of officers of departments
of various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and its subsidiaries, provided that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying thereon.
(c) At the Closing Date you shall have received the
opinion of Xxxxxxxx X. Xxxxxx, counsel for the Company and the Selling
Shareholders, dated the Closing Date addressed to the Underwriters and in form
and substance reasonably satisfactory to Underwriters' Counsel, to the effect
that:
(i) Each of the Company and its subsidiaries has
been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. The
Partnership has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of Delaware.
Each of the Company, its subsidiaries and the Partnership is duly
qualified and in good standing as a foreign corporation or limited
partnership, as the case may
14
be, in each jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct of its
business makes such qualification necessary, except for those failures
to be so qualified or in good standing which will not in the aggregate
have a material adverse effect on the Company, its subsidiaries and the
Partnership taken as a whole. Each of the Company, its subsidiaries and
the Partnership has all requisite corporate or partnership authority, as
the case may be, to own, lease and license its respective properties and
conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus. All of the issued and
outstanding capital stock of each corporate subsidiary of the Company
has been duly and validly issued and is fully paid and non-assessable
and was not issued in violation of pre-emptive rights and is owned
directly or indirectly by the Company, free and clear of any lien,
encumbrance, claim, security interest, restriction on transfer,
shareholders' agreement, voting trust or other defect of title
whatsoever. All of the outstanding limited and general partnership
interests in the Partnership have been duly and validly issued and were
not issued in violation of pre-emptive rights created by the
Partnership, the Company or any applicable statute, law, rule or
regulation and are owned directly or indirectly by the Company, free and
clear of any lien, encumbrance, claim, security interest, restriction on
transfer (other than those contained in the Partnership Agreement, as
amended), voting trust or other defect of title whatsoever.
(ii) The Company has an authorized capital stock as
set forth in the Registration Statement and the Prospectus. All of the
outstanding shares of capital stock of the Company are duly and validly
authorized and issued, fully paid and non-assessable and were not issued
and are not now in violation of or subject to any preemptive rights. The
Shares to be delivered by the Company on the Closing Date or the
Additional Closing Date have been duly and validly authorized and, when
delivered by the Company in accordance with this Agreement, will be duly
and validly issued, fully paid and non-assessable and will not have been
issued in violation of or subject to any preemptive rights. The Shares
to be delivered by the Selling Shareholders on the Closing Date or the
Additional Closing Date have been duly and validly authorized and
issued, are fully paid and non-assessable and were not issued in
violation of or subject to any preemptive rights. The Common Stock, the
Firm Shares and the Additional Shares conform to the descriptions
thereof contained in the Registration Statement and the Prospectus.
(iii) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(iv) To the best of such counsel's knowledge, there
is no litigation or governmental or other action, suit, proceeding or
investigation before any court or before or by any public, regulatory or
governmental agency or body pending or threatened against, or involving
the properties or business of, the Company, any of its subsidiaries or
the Partnership, which is of a character required to be disclosed in
15
the Registration Statement and the Prospectus which has not been
properly disclosed therein.
(v) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby
by the Company do not and will not (A) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default
(or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company, any of its subsidiaries or the Partnership pursuant to, any
agreement, instrument, franchise, license or permit referred to in or
filed as an exhibit to the Registration Statement or otherwise known to
such counsel to which the Company, any of its subsidiaries or the
Partnership is a party or by which any of such entities or their
respective properties or assets may be bound or (B) violate or conflict
with any provision of the certificate of incorporation or by-laws or
other organizational documents of the Company, any of its subsidiaries
or the Partnership, or, to the best knowledge of such counsel, any
judgment, decree, order, statute (other than state securities or Blue
Sky laws), rule or regulation of any court or any public, governmental
or regulatory agency or body having jurisdiction over the Company, any
of its subsidiaries or the Partnership or any of their respective
properties or assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
court or any public, governmental, or regulatory agency or body having
jurisdiction over the Company, any of its subsidiaries or the
Partnership or any of their respective properties or assets is required
for the execution, delivery and performance by the Company of this
Agreement or the consummation by the Company of the transactions
contemplated hereby, except for (1) such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters or pursuant to the
Corporate Financing Rule of the National Association of Securities
Dealers, Inc. (as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act.
(vi) This Agreement, the Power of Attorney and the
Custody Agreement have been duly and validly authorized (for entities
with respect to the Power of Attorney and the Custody Agreement),
executed and delivered by each of the Selling Shareholders; the Power of
Attorney and the Custody Agreement are legal, valid and binding
agreements of each of the Selling Shareholders enforceable in accordance
with their respective terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and general principles of
equity, and except that such counsel need not express any opinion as to
the enforceability of the indemnification provisions therein.
16
(vii) Each of the Selling Shareholders has full legal
right and power (with respect to entities) to sell, assign, transfer and
deliver the Shares to be sold by such Selling Shareholder in the manner
provided in this Agreement.
(vii) Delivery of the certificates for the Shares to
be sold by the Selling Shareholders pursuant hereto upon payment
therefor will pass title thereto to the Underwriters severally, free and
clear of any claim, lien, encumbrance, security interest, community
property right, restriction on transfer or other defect in title (other
than any such claim, lien, encumbrance, security interest, community
property right, restriction on transfer or other defect in title created
by any Underwriter), assuming that the several Underwriters are good
faith purchasers and without notice of any adverse claim.
(ix) The execution, delivery and performance of this
Agreement and the Power of Attorney and the Custody Agreement and the
consummation of the transactions contemplated hereby and thereby by the
Selling Shareholders do not and will not (A) conflict with or result in
a breach of any of the terms and provisions of, or constitute a default
(or an event which with notice or lapse of time, or both, would
constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of any
Selling Shareholder pursuant to, any agreement, instrument, franchise,
license or permit known to such counsel to which any Selling Shareholder
is a party or by which its properties or assets may be bound, or (B) to
the best knowledge of such counsel, violate or conflict with any
judgment, decree, order, statute (other than state securities or Blue
Sky laws), rule or regulation of any court or any public, governmental
or regulatory agency or body having jurisdiction over any of the Selling
Shareholders or any of their respective properties or assets.
(x) The Attorney in Fact has been duly authorized by
each Selling Shareholder to execute and deliver on behalf of such
Selling Shareholder this Agreement and any other document necessary or
desirable in connection with the transactions contemplated hereby and to
deliver the Shares to be sold by each Selling Shareholder and receive
payment therefor pursuant hereto.
(xi) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any
court or any public, governmental, or regulatory agency or body having
jurisdiction over the Selling Shareholders or any of their respective
properties or assets is required for the sale of the Shares to be sold
by the Selling Shareholders pursuant to this Agreement, except for
(1) such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act.
In addition, such opinion shall also state that although
such counsel has not undertaken, except as otherwise indicated in their
opinions, to determine independently,
17
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 a review
and discussion of the contents thereof, and nothing has come to the attention of
such counsel that has caused it to believe that the Registration Statement at
the time the Registration Statement became effective (including the information
deemed to be part of the Registration Statement at the time of effectiveness
pursuant to Rule 430A(b), if applicable), or the Prospectus, as of its date and
as of the Closing Date or the Additional Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein (as to the Prospectus, in the light of the circumstances under which
they were made) not misleading or that any amendment or supplement to the
Registration Statement or the Prospectus, as of its respective date, and as of
the Closing Date or the Additional Closing Date, as the case may be, contained
or contains an untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein (as to the Prospectus, in the light of the circumstances
under which they were made) not misleading (it being understood that such
counsel need express no statement with respect to the financial statements and
notes thereto and the schedules and other financial and statistical data
included in the Registration Statement or Prospectus).
In rendering such opinion, such counsel may rely: (A) as
to matters involving the application of laws other than the laws of the United
States and the State of Florida, to the extent such counsel deems proper and to
the extent specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to Underwriters' Counsel) of other
counsel reasonably acceptable to Underwriters' Counsel, familiar with the
applicable laws; and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and of the
Selling Shareholders and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and its subsidiaries and of
the Selling Shareholders (to the extent applicable), provided that copies of any
such statements or certificates shall be delivered to Underwriters' Counsel. The
opinion of such counsel for the Company shall state that the opinion of any such
other counsel is in form satisfactory to such counsel and, in such counsel's
opinion, you and such counsel are justified in relying thereon.
(d) All proceedings taken in connection with the sale of
the Firm Shares and the Additional Shares as herein contemplated shall be
reasonably satisfactory in form and substance to you and to Underwriters'
Counsel, and the Underwriters shall have received from said Underwriters'
Counsel a favorable opinion, dated as of the Closing Date with respect to the
issuance and sale of the Shares, the Registration Statement and the Prospectus
and such other related matters as you may reasonably require, and the Company
and the Selling Shareholders shall have furnished to Underwriters' Counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
18
(e) At the Closing Date you shall have received a
certificate on behalf of the Company signed by the Chief Executive Officer and
Chief Financial Officer of the Company, dated the Closing Date, to the effect
that (i) the condition set forth in subsection (a) of this Section 8 has been
satisfied, (ii) as of the date hereof and as of the Closing Date the
representations and warranties of the Company set forth in Section l hereof are
accurate, (iii) as of the Closing Date the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed and (iv)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company, its subsidiaries and the
Partnership, taken as a whole, have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, and there has
not been any material adverse change in the business prospects, properties,
operations, financial condition or results of operations of the Company and its
subsidiaries taken as a whole, except in each case as described in or
contemplated by the Prospectus.
(f) At the time this Agreement is executed and at the
Closing Date, you shall have received a letter from Coopers & Xxxxxxx L.L.P.,
independent public accountants for the Company, dated, respectively, as of the
date of this Agreement and as of the Closing Date, addressed to the Underwriters
and in form and substance reasonably satisfactory to you: (i) to the effect that
they are independent certified public accountants with respect to the Company
within the meaning of the Act and the Regulations and stating that the answer to
Item 10 of the Registration Statement is correct insofar as it relates to them;
(ii) stating that, in their opinion, the financial statements and schedules of
the Company included in the Registration Statement and the Prospectus and
covered by their opinion therein comply as to form in all material respects with
the applicable accounting requirements of the Act and the applicable published
rules and regulations of the Commission thereunder; (iii) stating that, on the
basis of procedures consisting of a reading of the latest available unaudited
interim consolidated financial statements of the Company, and its subsidiaries,
a reading of the minutes of meetings and consents of the shareholders and boards
of directors of the Company and its subsidiaries and the committees of such
boards subsequent to December 31, 1996, inquiries of officers and other
employees of the Company and its subsidiaries who have responsibility for
financial and accounting matters of the Company and its subsidiaries with
respect to transactions and events subsequent to December 31, 1996 and other
specified procedures and inquiries to a date not more than five days prior to
the date of such letter, nothing has come to their attention that would cause
them to believe that: (A) with respect to the period subsequent to December 31,
1996, there were, as of the date of the most recent available monthly
consolidated fiubsidiaries, if any, and as of a specified date not more than
five days prior to the date of such letter, any changes in the capital stock or
long-term indebtedness of the Company or any decrease in the net current assets
or stockholders' equity of the Company, in each case as compared with the
amounts shown in the most recent balance sheet presented in the Registration
Statement and the Prospectus, except for changes or decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur or
which are
19
set forth in such letter or (B) during the period from January 1, 1997 to the
date of the most recent available monthly consolidated financial statements of
the Company and its subsidiaries, if any, and to a specified date not more than
five days prior to the date of such letter, there was any decrease, as compared
with the corresponding period in the prior fiscal year, in total revenues, or
total or per share net income, except for decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur or which are
set forth in such letter; and (C) stating that they have compared such dollar
amounts, numbers of shares, percentages of revenues and earnings, and other
financial information pertaining to the Company and its subsidiaries set forth
in the Registration Statement and the Prospectus, which have been specified by
you prior to the date of this Agreement, to the extent that such amounts,
numbers, percentages, and information may be derived from the general accounting
and financial records of the Company and its subsidiaries or from schedules
furnished by the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the application
of specified readings, inquiries, and other appropriate procedures specified by
you set forth in such letter, and found them to be in agreement.
(g) Prior to the Closing Date, the Company and the Selling
Shareholders shall have furnished to you such other information, certificates
and documents as you may reasonably request.
(h) You shall have received from such officers, directors
and shareholders as have been heretofore designated by you and listed on
Schedule IV hereto an agreement to the effect that such person will not,
directly or indirectly, without your prior written consent, offer, sell, offer
or agree to sell, grant any option to purchase or otherwise dispose (or announce
any offer, sale, grant of an option to purchase, or other disposition) of any
shares of Common Stock (or any securities convertible into, exercisable for or
exchangeable for shares of Common Stock) for a period of 90 days after the
Closing Date except for the sale of the Shares by the Selling Shareholders
under this Agreement.
(i) At the Closing Date, the Shares shall have been listed
on The Nasdaq National Market.
(j) The Attorney in Fact, at the Closing Date, shall have
delivered to you a certificate to the effect that the Attorney in Fact is not
aware that any of the representations and warranties of the Selling Shareholders
as set forth in this Agreement are not true and correct as of such date.
If any of the conditions specified in this Section 8 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 8 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
canceled by you at, or at any time prior to, the
20
Additional Closing Date. Notice of such cancellation shall be given to the
Company and the Selling Shareholders in writing, or by telephone, telex or
telegraph, confirmed in writing.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the registration of the Shares, as originally filed or any amendment thereto, or
any related preliminary prospectus or the Prospectus, or in any supplement
thereto or amendment thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (as to the Prospectus, in the light
of the circumstances under which they were made) not misleading; provided,
however, that the Company will not be liable in any such case to the extent but
only to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through you expressly for use therein; and ; provided, further,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages and liabilities and judgments
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended and supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or judgment. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have, including under this Agreement.
(b) Each of the Selling Shareholders, severally as to
itself only, agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
21
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact relating to such Selling Shareholder
contained in the registration statement for the registration of the Shares, as
originally filed or any amendment thereto, or any related preliminary prospectus
or the Prospectus, or in any supplement thereto or amendment thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact relating to such Selling Shareholder required to be stated therein
or necessary to make the statements therein (as to the Prospectus, in the light
of the circumstances under which they were made) not misleading; provided,
however, that no Selling Shareholder shall be liable under this Section 9 in an
amount exceeding the total net price at which the Shares sold by such Selling
Shareholder were offered to the public; and provided, further, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages and liabilities and judgments purchased Shares, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment. This indemnity
agreement will be in addition to any liability which the any Selling
Shareholder may otherwise have, including under this Agreement.
(c) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and each
Selling Shareholder against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to reasonable
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), jointly or severally, to which they or any of them may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
22
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through you expressly for use
therein; provided, however, that in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount (as shown on
the cover page of the Prospectus) applicable to the Shares purchased by such
Underwriter hereunder. This indemnity will be in addition to any liability which
any Underwriter may otherwise have, including under this Agreement. Each of the
Company and each Selling Shareholder acknowledges that the statements set forth
in the second, third, fourth, fifth and last paragraphs and last sentence of the
seventh paragraph under the caption "Underwriting" in the Prospectus, the last
paragraph on the front cover page of the Prospectus and the final two paragraphs
on the inside front cover page of the Prospectus constitute the only information
furnished in writing by or on behalf of any Underwriter expressly for use in the
registration statement relating to the Shares as originally filed or in any
amendment thereof, any related preliminary prospectus or the Prospectus or in
any amendment thereof or supplement thereto, as the case may be.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action or written notice of any threat thereof, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify each party against whom indemnification is to be sought
in writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 9). In case any such action is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties (it being understood, however, that the indemnifying party
or parties shall not be liable for the fees and expenses of more than one
separate local counsel in any one action or series of related actions in the
same jurisdiction representing the indemnified party or parties in such action).
Anything in this Section 9 to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent shall not be
unreasonably withheld.
23
10. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 9 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Selling Shareholders, taken together, and the Underwriters shall contribute
to the aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting, in the case of losses, claims, damages, liabilities and expenses
suffered by the Company or the Selling Shareholders, any contribution received
by the Company or the Selling Shareholders from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company) as incurred to which the Company and the
Selling Shareholders taken together, and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company and the Selling Shareholders taken together, and the
Underwriters from the offering of the Shares or, if such allocation is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Company and the Selling Shareholders, taken together, and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders, taken together, and the Underwriters shall be deemed to be
in the same proportion as (x) the total proceeds from the offering (net of
underwriting discount but before deducting expenses) received by the Company and
the Selling Shareholders and (y) the underwriting discount received by the
Underwriters, respectively, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the Selling
Shareholders, taken together, and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Shareholders and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 10 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 10, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount (as set forth on the cover
page of the Prospectus) applicable to the Shares purchased by such Underwriter
hereunder, and (ii) 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. Notwithstanding
the provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the
24
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of this
Section 10, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of this Section 10. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties, notify each party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 10 or otherwise. No party shall be liable
for contribution with respect to any action or claim settled without its
consent; provided, however, that such consent shall not be unreasonably
withheld.
11. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in
its or their obligation to purchase Firm Shares or Additional Shares hereunder,
and if the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by you
pursuant to subsection (b) below) exceed in the aggregate 10% of the number of
Firm Shares or Additional Shares, the number of Firm Shares or Additional Shares
to which the default relates shall be purchased by the non-defaulting
Underwriters in proportion to the respective proportions which the numbers of
Firm Shares set forth opposite their respective names in Schedule I hereto bear
to the aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters.
(b) In the event that such default relates to more than
10% of the Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be to which such default relates on
the terms contained herein. In the event that within five calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 11, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company and the Selling Shareholders to sell the Additional Shares shall
thereupon terminate, without liability on the part of the Company or the Selling
Shareholders with respect thereto (except in each case as provided in Sections
6, 9(a) and 10 hereof) or the Underwriters but nothing in this Agreement shall
relieve a defaulting Underwriter or Underwriters of its or their liability, if
any, to the
25
other Underwriters and the Company and the Selling Shareholders for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares
to which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you, the Company or the Selling Shareholders shall have the right to postpone
the Closing Date or Additional Closing Date, as the case may be, for a period,
not exceeding five business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which may thereby be made necessary or advisable. The term "Underwriter" as used
in this Agreement shall include any party substituted under this Section 11 with
like effect as if it had originally been a party to this Agreement with respect
to such Firm Shares and Additional Shares.
12. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters,
the Company and the Selling Shareholders contained in this Agreement, including
the agreements contained in Section 6, the indemnity agreements contained in
Section 9 and the contribution agreements contained in Section 10, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof, or by or on
behalf of the Company, any of its officers and directors or any controlling
person thereof, or by or on behalf of any Selling Shareholder and shall survive
delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Sections l and 2 and the agreements contained in
Sections 6, 9, 10 and 13(d) hereof shall survive the termination of this
Agreement, including termination pursuant to Section 11 or 13 hereof.
13. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the later
of (i) when you and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution and delivery
of this Agreement by the Company, the Selling Shareholders and you. If the
Registration Statement shall not have been declared effective by the Commission
on or prior to 5:30 P.M. on the date hereof, this Agreement shall thereupon
terminate without liability to the Company, the Selling Shareholders or the
Underwriters except as herein expressly provided. Until this Agreement becomes
effective as aforesaid, it may be terminated by the Company or the Selling
Shareholders by notifying you or by you notifying the Company and the Selling
Shareholders. Notwithstanding the foregoing, the provisions of this Section 13
and of Sections 1, 2, 6, 9 and 10 hereof shall at all times be in full force and
effect.
(b) You shall have the right to terminate this Agreement
at any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, (A) if any domestic or international event or act or
occurrence has materially disrupted, or in your
26
opinion will in the immediate future materially disrupt, the market for the
Company's securities or securities in general; or (B) if trading on the New York
or American Stock Exchanges shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, on the New York or American Stock Exchanges
by the New York or American Stock Exchanges or by order of the Commission or any
other governmental authority having jurisdiction; or (C) if a banking moratorium
has been declared by a New York, Florida or federal authority or if any new
restriction materially adversely affecting the distribution of the Firm Shares
or the Additional Shares, as the case may be, shall have become effective; or
(D) (i) if the United States becomes engaged in hostilities or there is an
escalation of hostilities involving the United States or there is a declaration
of a national emergency or war by the United States or (ii) if there shall have
been such a change in political, financial or economic conditions, if the effect
of any such event in (i) or (ii) as in your judgment makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Firm Shares
or the Additional Shares, as the case may be, on the terms contemplated by the
Prospectus.
(c) Any notice of termination pursuant to this Section 13
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any
of the provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 13(a) hereof or (ii) Section 11(b) or 13(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company or any Selling Shareholder to perform any agreement herein or comply
with any provision hereof, the Company and the Selling Shareholders will,
subject to demand by you, reimburse the Underwriters for all reasonable
out-of-pocket expenses (including the fees and expenses of their counsel),
incurred by the Underwriters in connection herewith.
14. Notice. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxxxx; if sent to the Company,
shall be mailed, delivered, or telegraphed and confirmed in writing to the
Company, 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxx, Chief Financial Officer; and if sent to any Selling Shareholder, shall
be mailed, delivered or telegraphed and confirmed in writing to such Selling
Shareholder c/o Xxxxxxxx X. Xxxxxx, Independent Drive, Suite 3104, Xxxxxxxxxxxx,
Xxxxxxx 00000.
15. Parties. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Underwriters, the Company and the Selling
Shareholders and the controlling persons, directors, officers, employees and
agents referred to in Sections 9 and 10, and their respective successors and
assigns (including the heirs and personal representatives of the individual
Selling Shareholders), and no other person shall have or be construed to have
27
any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provision herein contained. The term "successors
and assigns" shall not include a purchaser, in its capacity as such, of Shares
from any of the Underwriters.
16. Counterparts. This Agreement may be executed in one or more
counterparts which together shall constitute one and the same instrument.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
28
If the foregoing correctly sets forth the understanding among
you, the Company and the Selling Shareholders, please so indicate in the space
provided below for that purpose.
Very truly yours,
IMC MORTGAGE COMPANY
By _____________________________
FOR THE SELLING SHAREHOLDERS
LISTED ON SCHEDULE II AND
SCHEDULE III HERETO
By _____________________________
Attorney in Fact
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXXXXXX & CO., INC.
PAINEWEBBER INCORPORATED
By: Bear, Xxxxxxx & Co. Inc.
By __________________________________
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
29
SCHEDULE I
Number of Firm
Name of Underwriter Shares to Be Purchased
------------------- -------------------------
Bear, Xxxxxxx & Co. Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxxxxxx & Co., Inc.
PaineWebber Incorporated
Total ........ 7,000,000
------------------------------
SCHEDULE II
Name of Firm Shares Number of Firm
Selling Shareholder Shares to Be Sold
------------------------ ------------------
Total ........... 1,400,000
------------------------------
SCHEDULE III
Percentage of
Name of Maximum Number of Additional Shares
Additional Shares Additional in Excess of _______
Selling Shareholder Shares to Be Sold to be Sold
------------------- ------------------ -----------
SCHEDULE IV
Directors & Officers:
----------------------
Xxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. XxXxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxx X. XxxXxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxx X. Wyckle
Shareholders:
--------------
All shareholders holding 100,000 shares or more.
