MANTECH INTERNATIONAL CORPORATION
6,150,000 Shares/1/
Class A Common Stock
Underwriting Agreement
December __, 2002
Xxxxxxxxx/Quarterdeck, LLC
Xxxx Xxxxx Xxxx Xxxxxx Incorporated
U.S. Bancorp Xxxxx Xxxxxxx
Xxxxx, Xxxxxxxx & Xxxx, Inc.
BB&T Capital Markets/Xxxxx & Xxxxxxxxxxxx, Inc.
As Representatives of the Several Underwriters
c/x Xxxxxxxxx/Quarterdeck, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
ManTech International Corporation, a Delaware corporation ("Company"),
proposes to issue and sell to the underwriters named in Schedule I hereto (the
"Underwriters"), for which you are acting as representatives (the
"Representatives"), and Xxxxxx X. Xxxxxxxx, the Xxxxxxxx Family Trust #1 u/a/
dated April 24, 1994 and Xxxx X. Xxxxx, Xx. (collectively, the "Selling
Stockholders" and each a "Selling Stockholder"), acting severally and not
jointly, propose to sell to the several Underwriters an aggregate of 6,150,000
shares (the "Firm Shares") of the Company's Class A common stock, par value $.01
per share (the "Class A Common Stock"), of which 4,500,000 shares are to be sold
by the Company (the "Company Firm Shares") and 1,650,000 shares are to be sold
by the Selling Stockholders (the "Selling Stockholders Firm Shares"). The
Company has also agreed to sell up to an aggregate of 876,500 shares (the
"Company Additional Shares") of Class A Common Stock and Xxxx X. Xxxxx, Xx. has
also agreed to sell up to an aggregate of 46,000 shares of Class A Common Stock
(the "Selling Stockholder Additional Shares," and, together with the Company
Additional Shares, the "Additional Shares") to cover over-allotments, if any.
The Firm Shares and the Additional Shares are hereinafter collectively referred
to as the "Shares."
You have advised us that, subject to the terms and conditions herein
contained, you desire to purchase the Firm Shares and that you propose to make a
public offering of the Firm Shares as soon as you deem advisable after the
Registration Statement referred to below becomes effective.
--------
/1/ Plus an option to purchase from the Company and Xxxx X. Xxxxx, Xx. (one
of the Selling Stockholders) up to an aggregate 922,500 Additional Shares
to cover over-allotments.
The terms that follow, when used in this Agreement, shall have the
meanings indicated. "Preliminary Prospectus" shall mean each prospectus subject
to completion included in the Company's Registration Statement on Form S-1
referred to in Section 1(a)(i) below and includes each preliminary prospectus
and any supplement thereto relating to the Shares which has heretofore been
furnished to the Underwriters and dealers for distribution and use.
"Registration Statement" shall mean the registration statement referred to in
Section 1(a)(i) below, including all exhibits, as amended at the Representation
Date (as defined in Section 1(a) hereof) (or, if not effective at the
Representation Date, in the form in which it shall become effective), all
financial statements and schedules thereto and, if any post-effective amendment
thereto becomes effective prior to any Closing Date (as defined in Section 3
hereof), shall also mean such registration statement as so amended. The term
"Registration Statement" shall include Rule 430A Information (as defined herein)
deemed to be included therein on the date the registration statement becomes
effective (the "Effective Date") as provided by Rule 430A (as defined below) and
also any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"). "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended, and "Exchange Act Rules and
Regulations" shall mean the rules and regulations of the Securities and Exchange
Commission (the "Commission") thereunder. "Prospectus" shall mean the prospectus
first filed with the Commission pursuant to Rule 424(b) under the Act, and the
prospectus included in the Registration Statement at the time it becomes
effective. "Rule 158," "Rule 424," "Rule 434" and "Rule 430A" refer to such
rules under the Act (the rules and regulations under the Act, the "Act
Regulations"), and "Rule 430A Information" means information with respect to the
Shares and the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. For purposes of the
representations and warranties contained herein, to the extent reference is made
to the Prospectus and at the relevant time the Prospectus is not yet in
existence, such reference shall be deemed to be to the most recent Preliminary
Prospectus. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or Preliminary Prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval system ("XXXXX").
1. Representations and Warranties of the Company.
---------------------------------------------
(a) The Company represents and warrants to each of the Underwriters as of
the date hereof (such date being referred to as the "Representation Date"), as
follows:
(i) The Company has satisfied the conditions for use of Form S-1 under the
Act, as set forth in the general instructions thereto, and has filed with the
Commission a registration statement on Form S-1 (Registration No. 333-101226),
including a Preliminary Prospectus, for the registration under the Act of the
offering and sale of the Shares (the "Offering"). The Company has filed one or
more amendments thereto, including to the related Preliminary Prospectus, each
of which has previously been furnished to the Representatives. After the
execution of this Agreement, the Company will file with the Commission either
(A) prior to effectiveness of such registration statement, a further amendment
to such registration statement (including a form of prospectus), a copy of which
amendment has been furnished to and approved by the Representatives prior to the
execution of this Agreement, or (B) after effectiveness of such registration
statement, a prospectus in the form most recently included in
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an amendment to such registration statement (or, if no amendment shall have been
filed, in such registration statement) in accordance with Rules 430A and 424(b)
of the Act Regulations and as have been provided to and approved by the
Representatives prior to execution of this Agreement. No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(ii) Neither the Commission nor any "blue sky" or securities authority of
any jurisdiction in which the Shares have been offered has issued any order
preventing or suspending the use of any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto. On the Effective Date, the Registration
Statement did, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on each Closing Date, the Prospectus will, in
all material respects, comply with the applicable requirements of the Act and
the Act Regulations; on the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; on the Effective Date if not filed pursuant to Rule
424(b), and on the date of any filing pursuant to Rule 424(b) and each Closing
Date, the Prospectus did not and will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and each Preliminary Prospectus and the Prospectus
delivered to the Underwriters for use in connection with the Offering will, at
the time of such delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T under the Act. Notwithstanding anything to the
contrary in this Agreement, the Company makes no representations or warranties
as to the information contained in or omitted from the Registration Statement,
any Preliminary Prospectus or the Prospectus in accordance with information
provided in writing to the Company by or on behalf of the Underwriters through
the Representatives expressly for use in any Preliminary Prospectus, the
Registration Statement or the Prospectus, and the Company agrees that the only
information provided in writing by or on behalf of Underwriters to the Company
expressly for use in any Preliminary Prospectus, the Registration Statement or
the Prospectus is (1) other than the information contained in the penultimate
paragraph and the paragraph preceding the penultimate paragraph of the section
set forth under the caption "Underwriting," that information contained in the
section set forth under the caption "Underwriting" in the Prospectus which does
not describe the terms of this Agreement, and (2) that information on the cover
page of the Prospectus stating that the Underwriters expect to deliver the
Shares to purchasers on or about __________, 2002.
(iii) The Company has been duly organized and is validly existing and in
good standing under the laws of the State of Delaware, with all requisite power
(corporate and other) and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus, and is duly qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature or location of its
properties (owned, leased or managed) or the conduct of its business requires
such qualification, except where the failure so to qualify would not,
individually or in the aggregate, have an adverse effect on the condition
(financial or other), business, properties, assets, rights, operations,
prospects or results of operations of the Company or any of the Subsidiaries (as
hereinafter defined) that is or would be, material to the Company and the
Subsidiaries, taken as a whole, whether or not occurring in the ordinary course
of business (a "Material Adverse Effect").
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(iv) The only subsidiaries (as defined in Rule 405 under the Act) of the
Company are the subsidiaries listed on Exhibit 21.1 to the Registration
Statement (individually, a "Subsidiary" and collectively, the "Subsidiaries").
The only significant subsidiaries (as significant is defined in Rule 405 under
the Act and Rule 1-02(w) of Regulation S-X for purposes of the Act) of the
Company are the subsidiaries listed on Schedule 1(a)(iv) to this Agreement (the
"Significant Subsidiaries"). Each of the Subsidiaries is a corporation or other
entity duly organized, validly existing and in good standing in the jurisdiction
of its incorporation with all requisite power (corporate or other) and authority
to own, lease, manage and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, and is duly
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature or location of its properties (owned, leased or
managed) or the conduct of its business requires such qualification, except
where the failure to so qualify would not, individually or in the aggregate,
have a Material Adverse Effect.
(v) The Company has filed with or furnished to the Commission all reports
and other documents and information required to be so filed or furnished by the
Company pursuant to the Exchange Act and the Exchange Act Rules and Regulations.
(vi) Each of the Company and each Subsidiary possesses all authorizations,
approvals, orders, licenses, certificates, franchises and permits of and from,
and has made all declarations and filings with, all regulatory or governmental
officials, bodies and tribunals ("Permits") that are necessary for the
ownership, leasing, management or operation of their respective properties and
to the conduct of the business of the Company and its Subsidiaries taken as a
whole as described in the Registration Statement and the Prospectus except where
the failure to possess such Permits would not be expected have a Material
Adverse Effect, and none of the Company or any of the Subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such
Permits. Except as described in the Registration Statement and Prospectus, each
of the Company and each Subsidiary has fulfilled and performed all its current
material obligations with respect to such Permits except where such failure to
perform would not be expected to have a Material Adverse Effect and no event has
occurred that allows, or after notice or lapse of time, or both, would allow,
revocation or termination thereof or result in any other material impairment of
the rights of the holder of any such Permit and such Permits contain no
restrictions that are materially burdensome to the Company or any of the
Subsidiaries. The Company and each of the Subsidiaries are, in all material
respects, in compliance with all federal, state, local and foreign laws, rules,
regulations, orders and consents of any governmental agency or body or court
and, to the knowledge of the Company, except as set forth in the Registration
Statement and Prospectus, no prospective change in any such federal, state,
local or foreign laws, rules, regulations, orders or consents has been adopted
or is proposed which, when made effective, would have a Material Adverse Effect.
The property and business of the Company and the Subsidiaries conform in all
material respects to the descriptions thereof contained in the Registration
Statement and the Prospectus.
(vii) All of the Company's issued and outstanding capital stock has been
duly authorized, validly issued and is fully paid and nonassessable, and the
Company's outstanding classes of capital stock, including, without limitation,
the Class A Common Stock, and the capitalization (authorized and outstanding) of
the Company conform in all material respects to the descriptions thereof and the
statements made with respect thereto in the
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Registration Statement and the Prospectus as of the date set forth therein under
"Capitalization" and "Description of Capital Stock, Certificate of Incorporation
and Bylaws." None of the issued and outstanding shares of the Company's capital
stock including, without limitation, the Class A Common Stock, have been issued
in violation of any preemptive or other rights to subscribe for or purchase
shares of capital stock of the Company. Except as described in the Registration
Statement and the Prospectus, there are no outstanding securities convertible
into or exchangeable for, and no outstanding options, warrants or other rights
to purchase, any shares of the capital stock of the Company, nor any agreements
or commitments to issue any of the same, and there are no preemptive or other
rights to subscribe for or to purchase, and no restrictions upon the voting or
transfer of, any capital stock of the Company pursuant to the Company's
certificate of incorporation or bylaws or any agreement or other instrument to
which the Company is a party. All offers and sales of the Company's capital
stock prior to the date hereof were at all relevant times duly registered or
exempt from the registration requirements of the Act, and were duly registered
or the subject of an available exemption from the registration requirements of
the applicable state securities or blue sky laws. The form of certificates for
the Shares complies with the requirements of Section 158 of the Delaware General
Corporation Law.
(viii) All the outstanding shares of capital stock or other equity
interests of each Subsidiary have been duly authorized and validly issued and
are fully paid and nonassessable, and, except as described in the Registration
Statement and Prospectus, all outstanding shares of capital stock and other
equity interests of such Subsidiaries are owned of record and beneficially by
the Company, either directly or through one of the other Subsidiaries, free and
clear of any security interests, liens, encumbrances, equities or other claims.
Except as described in the Registration Statement and Prospectus, there are no
outstanding rights, warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interest
in any Subsidiary.
(ix) Except as described in the Registration Statement and Prospectus, each
of the Company and each Subsidiary has good and marketable title to, and is
possessed of, each property, right, interest or estate constituting the
properties and assets described in the Registration Statement and the Prospectus
as owned by it or reflected in the Financial Statements (as defined below), free
and clear of all liens, charges, security interests, pledges, encumbrances and
restrictions and other claims, except such as are described in the Registration
Statement and the Prospectus or such as are not burdensome and do not interfere
with the use or proposed use of the property or the conduct of the business of
the Company or any Significant Subsidiary in a manner that is or would be
material to the business of the Company and the Subsidiaries taken as a whole.
Each of the Company and each of the Subsidiaries has leases for all properties
that are material to the conduct of the business of the Company and its
Subsidiaries as described in the Registration Statement and the Prospectus (the
"Leases). Each of the Leases is valid, subsisting and enforceable, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights or by general equitable principles, and no event has occurred
which, with the passage of time or the giving of notice or both, would cause a
material breach of, or default under, any such Lease. None of the Company or any
Subsidiary owns any real property.
(x) No Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution with
respect to such
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Subsidiary's capital stock or other equity interests to the Company or a
Subsidiary, as the case may be, from repaying to the Company or a Subsidiary any
loans or advances to such Subsidiary from the Company or a Subsidiary or from
transferring any of such Subsidiary's property or assets to the Company or any
Subsidiary, except as described in the Registration Statement, the Prospectus
and that certain Business Loan and Security Agreement with Citizens Bank of
Pennsylvania, PNC Bank N.A., Branch Banking and Trust Company of Virginia and
Chevy Chase Bank, F.S.B.
(xi) The Company has all corporate power, authority, authorizations,
approvals, orders, licenses, certificates and permits to enter into this
Agreement and to carry out the provisions and conditions hereof, including, but
not limited to, the issuance and delivery of the Shares to the Underwriters as
provided herein. This Agreement has been duly and validly authorized by the
Company and duly executed and delivered by the Company and constitutes a legal,
valid and binding agreement of the Company.
(xii) The Company and each Significant Subsidiary owns, or possesses
adequate rights to use, all patents, patent rights, licenses, inventions,
trademarks, service marks, trade names, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information or procedures) and other rights necessary for the conduct of its
business as described in the Registration Statement and the Prospectus, and
except as described in the Registration Statement and the Prospectus, none of
the Company or any of the Subsidiaries has received a notice, or has any
knowledge, of any infringement or other conflict with the asserted rights of
others in any such respect that could reasonably be expected to have a Material
Adverse Effect.
(xiii) The Shares (A) to be issued and sold by the Company have been duly
and validly authorized for issuance by the Company and the Company has the
corporate power and authority to issue, sell and deliver the Company Firm Shares
and the Company Additional Shares to the Underwriters and (B) to be sold by the
Selling Stockholders to the Underwriters have been duly authorized and are (or,
in the case of Shares to be converted from Class B Common Stock into Class A
Common Stock immediately prior to the Closing, will be upon such conversion)
validly issued, fully paid and non-assessable; and when the Company Firm Shares
and the Company Additional Shares are issued and delivered and when the Selling
Stockholders Firm Shares and the Selling Stockholder Additional Shares are
delivered against payment therefor as provided by this Agreement, the Company
Firm Shares and the Company Additional Shares and the Selling Stockholders Firm
Shares and the Selling Stockholder Additional Shares will be validly issued,
fully paid and nonassessable, and the issuance of such Company Firm Shares and
the Company Additional Shares and the Selling Stockholders Firm Shares and the
Selling Stockholder Additional Shares will not be subject to any preemptive or
similar rights.All corporate action required to be taken by the stockholders or
the Board of Directors of the Company for the authorization, issuance and sale
of the Company Firm Shares and the Company Additional Shares has been duly and
validly taken. The Company Firm Shares, Company Additional Shares, Selling
Stockholders Firm Shares and Selling Stockholder Additional Shares conform in
all material respects to the description of the Class A Common Stock set forth
in the Registration Statement and the Prospectus under the caption "Description
of Capital Stock, Certificate of Incorporation and Bylaws."
(xiv) To the Company's knowledge, each of Deloitte & Touche LLP and Ernst &
Young
LLP, whose reports are included in the Registration Statement and who has
certified certain of the Financial Statements and the Aegis Financial Statements
(each as hereinafter defined), respectively, and PricewaterhouseCoopers LLP are
independent certified public accountants with respect to the Company and the
Subsidiaries, and, in the case of Ernst & Young LLP, with respect to Aegis
Research Corporation ("Aegis"), respectively, under the meaning of and as
required by the Act and the Act Regulations.
(xv) The consolidated financial statements and related schedules and notes
included in the Registration Statement and the Prospectus with respect to the
Company and the Subsidiaries (the "Financial Statements") present fairly the
financial position of the Company and the Subsidiaries, on the basis stated in
the Registration Statement, as of the respective dates thereof and the results
of operations and cash flows of the Company and the Subsidiaries, for the
respective periods covered thereby, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire period
involved, except as otherwise disclosed in the Registration Statement and the
Prospectus and all adjustments necessary for a fair presentation of results for
such periods have been made. The consolidated financial statements and related
schedules and notes included in the Registration Statement and the Prospectus
with respect to Aegis (the "Aegis Financial Statements") present fairly the
financial position of Aegis, on the basis stated in the Registration Statement,
as of the respective dates thereof and the results of operations and cash flows
of Aegis, for the respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the entire period involved, except as otherwise disclosed in the
Registration Statement and the Prospectus and all adjustments necessary for a
fair presentation of results for such periods have been made. The summary
consolidated financial data, the selected consolidated financial information and
the quarterly consolidated financial data included under the captions "Summary
Financial Data," "Selected Financial Data" and "Quarterly Results of
Operations," respectively, in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited consolidated financial statements of the Company included therein. The
backlog and GSA Schedule Contract Value data included in the Registration
Statement and the Prospectus are complete and accurate in all material respects
and present fairly, in all material respects, the information shown therein; the
assumptions used in the preparation of the backlog and GSA Schedule Contract
Value data included in the Registration Statement and Prospectus are reasonable
and the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein. No other financial
statements, schedules or data of the Company and its Subsidiaries are required
by the Act or the Act Regulations to be included or incorporated by reference in
the Registration Statement or Prospectus. The pro forma information and related
notes included in the Registration Statement and the Prospectus presents fairly
the information shown therein, complies as to form in all material respects with
the Commission's rules and guidelines with respect to pro forma information,
have been properly compiled on the pro forma basis described therein, and, in
the opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate under the
circumstances.
(xvi) The Company and each Subsidiary maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management's general or specific authorization; (B)
transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
(C) access to assets is permitted only in accordance with management's general
or specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xvii) The Company and each Subsidiary maintains insurance issued by
insurers of nationally recognized financial responsibility and covering its
properties, operations, personnel and businesses. Such insurance insures against
such losses and risks and in such amounts as are prudent and customary in the
businesses in which the Company and its Subsidiaries are engaged. None of the
Company or any Subsidiary has been refused any insurance coverage sought or
applied for; and, except as described in the Registration Statement and the
Prospectus, none of the Company or any Subsidiary has reason to believe that it
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers, as may be
necessary to continue its business at a cost that could not reasonably be
expected to have a Material Adverse Effect. All such insurance is outstanding
and duly in force on the date hereof.
(xviii) Except as set forth in the Registration Statement and the
Prospectus, the Company and the Subsidiaries are in compliance in all material
respects with all federal, state, local or foreign laws or regulations relating
to pollution or protection of human health and safety, the environment or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"). Except
as set forth in the Registration Statement and the Prospectus, none of the
Company or any of the Subsidiaries has authorized, conducted or has knowledge of
the generation, transportation, storage, use, treatment, disposal or release of
any hazardous substance, hazardous waste, hazardous material, hazardous
constituent, toxic substance, pollutant, contaminant, petroleum product, natural
gas, liquefied gas or synthetic gas, defined or regulated under any
Environmental Law on, in or under any property in violation of any applicable
law, other than such that would not reasonably be expected to have a Material
Adverse Effect. Except as set forth in the Registration Statement and the
Prospectus, there is no pending or, to the Company's knowledge, threatened
claim, action, litigation or any administrative agency proceeding involving the
Company or any of the Subsidiaries or their respective properties, nor has the
Company or any of the Subsidiaries received any written notice, or any oral
notice to any executive officer of the Company or any other employee responsible
for receipt of any such notice, from any governmental entity or third party,
that (A) alleges a violation of any Environmental Laws by the Company or any of
the Subsidiaries or any person or entity whose liability for a violation of an
Environmental Law the Company or any Subsidiary has retained or assumed either
contractually or by operation of law; (B) alleges the Company or any of the
Subsidiaries is a liable party under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq., or any state
superfund law; (C) alleges possible contamination of the environment by the
Company or any of the Subsidiaries; or (D) alleges possible contamination of any
of the Company's or the Subsidiaries' properties, other than such, in each case,
that would not reasonably be expected to have a Material Adverse Effect.
(xix) Each of the Company and each Subsidiary (A) is in compliance, in all
material respects, with any and all applicable foreign, federal, state and local
laws, rules,
regulations, treaties, statutes and codes promulgated by any and all
governmental authorities (including pursuant to the Occupational Health and
Safety Act) relating to the protection of human health and safety in the
workplace ("Occupational Laws"); (B) has received all material permits, licenses
or other approvals required of it under applicable Occupational Laws to conduct
its business as currently conducted; and (C) is in compliance, in all material
respects, with all terms and conditions of such permit, license or approval, and
the Company does not have knowledge of any facts, circumstances or developments
relating to its operations or cost accounting practices that could reasonably be
expected to form the basis for or give rise to such actions, suits,
investigations or proceedings. No action, proceeding, revocation proceeding,
writ, injunction or claim is pending or, to the Company's knowledge, threatened
against the Company or any Subsidiary relating to Occupational Laws.
(xx) There is (A) no material unfair labor practice complaint pending
against the Company or, to the Company's knowledge, threatened against it before
the National Labor Relations Board or any state or local labor relations board,
and no material grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or, to its
knowledge, threatened against it, (B) no labor dispute in which the Company is
involved nor, to the Company's knowledge, is any labor dispute imminent, other
than routine disciplinary and grievance matters, and (C) to the Company's
knowledge, no union representation question existing with respect to the
employees of the Company and no union organizing activities are taking place.
The Company has not received written notice that (i) any executive, key employee
or significant group of employees of the Company plans to terminate employment
with the Company or (ii) any such executive or key employee is subject to any
noncompete, nondisclosure, confidentiality, employment, consulting or similar
agreement that would be violated by the present or proposed business activities
of the Company.
(xxi) Neither the Company nor any of the Subsidiaries is in violation of
its respective charter or bylaws or other organizational documents. Neither the
Company nor any Subsidiary is, nor with the passage of time or the giving of
notice or both would be, in violation of any federal, state, local or foreign
law, statute, ordinance, administrative or governmental rule, regulation or code
applicable to the Company or any of the Subsidiaries, including, without
limitation, the Federal Acquisitions Regulations and supplements and the Truth
in Negotiations Act, or of any judgment, order or decree of any court or
governmental agency or body or of any arbitrator having jurisdiction over the
Company or any of the Subsidiaries, or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any mortgage, loan agreement, note, bond, debenture, credit
agreement or any other evidence of indebtedness or in any agreement, contract,
indenture, lease, deed of trust or other instrument to which the Company or any
of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound, or to which any of the property or assets of the Company
or any of the Subsidiaries is subject, other than (i) as described in the
Registration Statement and the Prospectus, or (ii) any violation of, or default
with respect to, any of the foregoing that would not reasonably be expected to
have a Material Adverse Effect.
(xxii) There is no legal or governmental action, suit, investigation or
proceeding before or by any court, arbitrator or governmental agency or body
pending or, to the Company's knowledge, threatened, against the Company or any
of the Subsidiaries, or to which any of their respective properties, officers or
personnel is subject, nor does the Company have
knowledge of any facts, circumstances or developments relating to its or its
Subsidiaries' operations or cost accounting practices that could reasonably be
expected to form the basis for or give rise to such actions, suits,
investigations or proceedings (A) that are required to be described in the
Registration Statement or the Prospectus but are not described as required, (B)
except as disclosed in the Prospectus that, if adversely determined, could
reasonably be expected to have a Material Adverse Effect, (C) that could prevent
or adversely affect the transactions contemplated by this Agreement or (D) that
could result in the suspension of the effectiveness of the Registration
Statement and/or prevent or suspend the use of the Preliminary Prospectus or
Prospectus in any jurisdiction. The Company is not a party to or subject to the
provisions of any injunction, judgment, decree or order of any court, regulatory
body or other governmental agency or body, other than (x) as described in the
Registration Statement or Prospectus or (y) such judgments that would not have a
Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor any
of their respective directors or officers has been subject to any investigations
or proceedings by the Securities and Exchange Commission.
(xxiii) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) none of the Company or any of the Subsidiaries (1) has issued or
granted any securities or interests or rights to acquire capital stock other
than in connection with the exercise of any outstanding options or warrants
which are reflected in the Registration Statement and the Prospectus, (2)
incurred any material liability or obligation, direct, indirect or contingent,
other than liabilities and contingencies which were incurred in the ordinary
course of business, (3) entered into any transaction, not in the ordinary course
of business, that is material to the Company and the Subsidiaries taken as a
whole, (4) entered into any transaction with an affiliate of the Company (as the
term "affiliate" is defined in Rule 405 promulgated by the Commission pursuant
to the Act), which would otherwise be required to be disclosed in the
Registration Statement and the Prospectus or (5) declared or paid any dividend
on its capital stock or made any other distribution to its equity holders, (B)
there has not been any material change in the capital stock or other equity
interests, or material increase in the short-term debt or long-term debt, of the
Company or any of the Subsidiaries and (C) there has been no change or
development with respect to the condition (financial or otherwise), business,
properties, assets, rights, operations, management, prospects, net worth or
results of operations of the Company or any of the Subsidiaries that could
reasonably be expected to have a Material Adverse Effect.
(xxiv) Neither the execution, delivery or performance of this Agreement,
the offer, issuance, sale or delivery of the Shares, nor the consummation of the
other transactions contemplated hereby and by the Registration Statement and the
Prospectus (A) requires the consent, approval, authorization or order of or
provision by the Company to any court or governmental agency or body applicable
to the Company or any Subsidiary, except such as have been obtained under the
Act and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Shares by the Underwriters
or such as may be required by the National Association of Securities Dealers,
Inc. (the "NASD") and such other approvals as have been obtained, (B) will
conflict with, result in a breach or violation of, or constitute a default under
the terms of any agreement, contract, indenture, loan agreement, note, lease,
deed of trust or other instrument to which the Company or any of the Significant
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, (C) will conflict with or violate any provision of the
charter, bylaws or other
organizational documents of the Company or any Subsidiary, (D) will result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of the Subsidiaries or an acceleration of
indebtedness pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject, or (E) will conflict with or
violate any federal, state, local or foreign law, statute or regulation, or any
judgment, order, consent, decree or memorandum of understanding applicable to
the Company or any Subsidiary of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the Company or
any of the Subsidiaries or their respective properties.
(xxv) The Company has not distributed and, prior to the later to occur of
the Closing Date or completion of the distribution of the Shares, will not
distribute without the prior consent of Xxxxxxxxx/Quarterdeck, LLC ("Jefferies")
any offering material in connection with the Offering other than the
Registration Statement, any Preliminary Prospectus, the Prospectus or other
materials, if any, permitted by the Act and the Act Regulations and the use of
which has been approved in advance by Jefferies.
(xxvi) None of the Company or any Subsidiary nor, to the Company's
knowledge, any officer, director, employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any Subsidiary, or
received or retained any funds, in violation of any law, rule or regulation, or
which payment, receipt or retention of funds is of a character required to be
disclosed in the Registration Statement or the Prospectus.
(xxvii) There are no outstanding loans, advances (except normal advances
for business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company or any of its Subsidiaries to or for the benefit of
any of the officers or directors or stockholders of the Company or any of its
Subsidiaries or any of the members of the families of any of them, except as
disclosed in the Registration Statement, the Preliminary Prospectus and the
Prospectus.
(xviii) The Company (including all predecessors of the Company) and each of
the Subsidiaries have filed (or have obtained extensions thereto) all federal,
state, local and foreign tax returns that are required to be filed (other than
returns with respect to which failure to so file could not be expected to have a
Material Adverse Effect), which returns are complete and correct in all material
respects, and have paid all taxes shown on such returns and all assessments
received by them with respect thereto to the extent that the same have become
due, except those taxes that are being contested or protested in good faith by
the Company or its Subsidiaries and as to which any reserves required under
generally accepted accounting principles have been established; and there is no
tax deficiency that has been or, to the knowledge of the Company, could
reasonably be expected to be asserted or threatened against the Company or any
Subsidiary or any of their respective assets or properties which could
reasonably be expected to have a Material Adverse Effect.
(xxix) Except for the shares of capital stock or other equity interests of
each of the Subsidiaries, neither the Company nor any of the Subsidiaries owns
any share of stock or any other securities of any corporation or has any equity
interest in any firm, partnership,
association, limited liability company, joint venture or other entity other than
as reflected in the consolidated financial statements included in the
Registration Statement and the Prospectus.
(xxx) No holder of any security of the Company has the right (other than a right
which has been waived in writing or complied with) to have any security
owned by
such holder included in the Registration Statement and, except as described in
the Registration Statement and the Prospectus, no holder of any security of the
Company has the right to demand registration of any security owned by such
holder during the period ending 12 months after the date of the Prospectus.
(xxxi) Neither the Company nor any Subsidiary or their respective officers,
directors, employees or agents on behalf of the Company or any Subsidiary have
taken, directly or indirectly, (A) any action designed to cause or to result in,
or that has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares, or (B) since the filing of the
Registration Statement (1) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of the Shares or (2) paid or agreed to pay
any person any compensation for soliciting another to purchase any securities of
the Company.
(xxxii) As of the date of the Prospectus, neither the Company nor any of
the Subsidiaries is currently planning any probable acquisitions for which
disclosure of pro forma financial information would be required by the Act or
the Act Regulations.
(xxxiii) The Company has given notice of the additional listing of the
Shares on the Nasdaq National Market.
(xxxiv) Neither the Company nor any Subsidiary is, and, upon consummation
of the Offering contemplated by the Prospectus, the Company will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations of the Commission thereunder, and is
not subject to registration under such act.
(xxxv) To the Company's knowledge, no officer, director or beneficial owner
of 5% or more of the Class A Common Stock of the Company has any affiliation or
association with the NASD or any member thereof.
(xxxvi) There are no contracts, agreements or other documents which are of
a character required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Act or by the Act Regulations which have not
been described in the Prospectus or filed as exhibits to the Registration
Statement as required by the Act Regulations. The contracts so described or
otherwise described in the Prospectus or filed as exhibits to the Registration
Statement are in full force and effect on the date hereof, and neither the
Company or any Subsidiary nor, to the Company's knowledge, any other party is in
material breach of or default under any of such contracts. The Company has not
received any written notice of such default or breach. The descriptions of such
contracts in the Prospectus and the Registration Statement are accurate
summaries thereof and fairly present, in all material respects, the information
purported to be summarized. All such agreements to which the Company or any of
its Subsidiaries is a party have been duly authorized, executed and delivered by
the Company or a Subsidiary, constitute valid and binding agreements of the
Company or a Subsidiary, and are enforceable against the Company or a Subsidiary
in accordance with the terms thereof, except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally, or by
general equitable principles.
(xxxvii) No transactions have occurred and no relationship, direct or
indirect, exists between or among the Company or any Subsidiary on the one hand,
and the directors, officers, stockholders, customers or suppliers of the Company
or any Subsidiary (or any partner, affiliate or associate of any of the
foregoing persons or entities) on the other hand, which is required to be
described in the Prospectus which is not so described.
(xxxviii) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
(xxxix) There are no claims, payments, issuances, arrangements or
understandings, whether oral or written, for services in the nature of a
finder's, consulting or origination fee with respect to the sale of the Shares
hereunder or any other arrangements, agreements, understandings, payments or
issuances with respect to the Company or any Subsidiary, or any of their
respective officers, directors, stockholders, partners, employees or affiliates
on behalf of the Company or any Subsidiary that may affect the Underwriter's
compensation, as determined by the NASD, other than as described in the
Prospectus.
(xl) The Company has obtained written agreements and delivered such
agreements to the Representatives as of the date hereof ("Lock-Up Agreements")
to the effect and in substantially the form(s) attached hereto as Schedule
1(a)(xl) from each of its directors and executive officers, and the stockholders
identified on Schedule 1(a)(xl) hereto.
(xli) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-14 under the Exchange Act); (ii)
such disclosure controls and procedures are designed to ensure that material
information relating to the Company, including its consolidated subsidiaries, is
made known to the Company's principal executive officer and its principal
financial officer by others within those entities, particularly during the
periods in which the periodic reports required under the Exchange Act are being
prepared; and (iii) such disclosure controls and procedures are effective in all
material respects to perform the functions for which they were established.
(xlii) The Company's auditors and the audit committee of the board of
directors have been advised of (i) all significant deficiencies in the design or
operation of internal controls which could adversely affect the Company's
ability to record, process, summarize and report financial data and have
identified for the Company's auditors any material weaknesses in internal
controls; and (ii) any fraud, whether or not material, that involves management
or other employees who have a significant role in the Company's internal
controls.
(xliii) Since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in internal
controls or in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies and
material weaknesses.
(xxxiv) The Company has provided the Representatives true, correct and
complete copies of all documentation pertaining to any extension of credit in
the form of a personal loan made, directly or indirectly, by the Company to any
director or executive officer of the Company, and to any family member or
Affiliate of any director or executive officer of the Company. Since July 30,
2002, the Company has not, directly or indirectly, including through any
subsidiary: (i) extended credit, arranged to extend credit, or renewed any
extension of credit, in the form of a personal loan, to or for any director or
executive officer of the Company, or to any family member or Affiliate of any
director or executive office of the Company; or (ii) made any material
modification, including any renewal thereof, to any term of any personal loan to
any director or executive officer of the Company, or any family member or
Affiliate of any director executive officer, which loan was outstanding on July
30, 2002.
(xlv) Any certificate signed by any officer of the Company delivered to the
Representatives or to counsel for the Underwriters pursuant to the terms of this
Agreement shall be deemed a representation and warranty by the Company to
the
Underwriters as to the matters covered thereby.
2. Representations and Warranties of the Selling Stockholders.
----------------------------------------------------------
(a) Each Selling Stockholder, severally and not jointly, represents and
warrants to each Underwriter as of the Representation Date, as follows with
respect to himself or itself, as applicable:
(i) The Selling Stockholder is the lawful owner of the Shares to be sold by
such Selling Stockholder pursuant to this Agreement (or has the right to acquire
such Shares upon conversion of shares of Class B Common Stock, of which the
Selling Stockholder is the lawful owner) and has (or will have upon conversion
of shares of Class B Common Stock), and on each Closing Date, as applicable,
will have, good, valid and clear title to such Shares, free of any and all
restrictions on transfer, liens, encumbrances, security interests, equities,
claims and other defects whatsoever.
(ii) The Selling Stockholder has, and on each Closing Date, as applicable,
will have, full legal right, power and authority, and all authorizations and
approvals required by law, to enter into this Agreement and to sell, assign,
transfer and deliver the Shares to be sold by the Selling Stockholder in the
manner provided herein.
(iii) This Agreement has been duly executed and delivered by or on behalf
of the Selling Stockholder and is a legal, valid and binding agreement of the
Selling Stockholder.
(iv) Upon delivery of and payment for the Shares to be sold by each Selling
Stockholder pursuant to this Agreement, good, valid and clear title to such
Shares will pass to the Underwriters, free and clear of all restrictions on
transfer, liens, encumbrances, security interests, equities, claims and defects
whatsoever.
(v) The execution, delivery and performance of this Agreement by the
Selling Stockholder, the compliance by the Selling Stockholder with all the
provisions hereof and the consummation by the Selling Stockholder of the
transactions contemplated hereby will not (A) require such Selling Stockholder
to obtain any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except as such may
be required under the securities or blue sky laws of the various states or as
have been or will be obtained), (B) conflict with or constitute a breach of any
of the terms or provisions of, or a default under, any indenture, loan
agreement, mortgage, deed of trust, lease, license or other agreement or
instrument to which such Selling Stockholder is a party or by which such Selling
Stockholder or any property of such Selling Stockholder is bound or (C) to such
Selling Stockholder's knowledge, violate or conflict with any applicable
federal, state, local or foreign law, statute, rule, regulation or judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over such Selling Stockholder or any property of such Selling
Stockholder.
(vi) The information in the Registration Statement and Prospectus under the
caption "Principal and Selling Stockholders" which specifically relates to such
Selling Stockholder does not, and will not on any Closing Date, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and the Selling
Stockholder has agreed to immediately notify the Company, if, at any time during
the period when a Prospectus is required by law to be delivered in connection
with sales of Shares by an Underwriter or a dealer, there is any material change
in such information.
(vii) The Selling Stockholder has not taken, and will not take, directly or
indirectly, any action designed to, or which might reasonably be expected to,
cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares pursuant to the
distribution contemplated by this Agreement, and, other than as permitted by the
Act, the Selling Stockholder has not distributed and will not distribute any
prospectus or other offering material in connection with the Offering.
(viii) Each certificate signed by or on behalf of the Selling Stockholder
and delivered to the Underwriters or counsel of the Underwriters shall be deemed
to be a representation and warranty by such Selling Stockholder to the
Underwriters as to the matters covered thereby.
3. Sale and Delivery to the Underwriters; Closing.
----------------------------------------------
(a) Subject to the terms and conditions and in reliance upon the
representations, warranties, covenants and agreements herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$_____ per share (the "Purchase Price"), that number of Firm Shares which bears
the same proportion to the aggregate number of Firm Shares to be issued and sold
by the Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the aggregate number of Firm Shares, subject
to adjustment in accordance with Section 10 hereof.
(b) Subject to the terms and conditions and in reliance upon the
representations, warranties, covenants and agreements herein set forth, each
Selling Stockholder, severally and not jointly, agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from each Selling Stockholder, at the Purchase Price, that number of Firm Shares
which bears the same proportion to the aggregate number of Firm Shares to be
sold by such Selling Stockholder as the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I bears to the aggregate number of Firm
Shares, subject to adjustment in accordance with Section 10 hereof.
(c) Each of the Company and Xxxx X. Xxxxx, Xx., severally and not jointly,
grants to the Underwriters an option to purchase all or any part of the
Additional Shares at the Purchase Price. Subject to the terms and conditions and
in reliance upon the representations, warranties, covenants and agreements
herein set forth, Additional Shares may be purchased from the Company and Xxxx
X. Xxxxx, Xx., for the accounts of the respective Underwriters in the same
proportion that the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
Such option may be exercised only to cover over-allotments in the sale of the
Firm Shares by the Underwriters and may be exercised in whole or in part at any
time and from time to time within 30 days after the date of this Agreement, in
each case upon written or facsimile notice, or verbal or telephonic notice
confirmed by written or facsimile notice, by the Underwriters to the Company and
Xxxx X. Xxxxx, Xx. no later than 12:00 noon, New York City time, on the business
day before the Firm Shares Closing Date (as hereinafter defined) or at least two
business days before the Additional Shares Closing Date (as hereinafter
defined), as the case may be, setting forth the number of Additional Shares to
be purchased and the time and date (if other than the Firm Shares Closing Date)
of such purchase. Notwithstanding anything to the contrary set forth herein, the
initial 46,000 Additional Shares to be purchased by the Underwriters pursuant to
this Section 3 shall be Selling Stockholder Additional Shares which shall be
purchased from Xxxx X. Xxxxx, Xx. and any Additional Shares in excess thereof to
be purchased by the Underwriters shall be Company Additional Shares which shall
be purchased exclusively from the Company.
(d) Payment of the purchase price for, and delivery of, the Firm Shares to
be purchased by the Underwriters shall be made at the offices of Xxxxxxxxx &
Company, Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as shall be agreed upon by the Representatives and the Company
at 10:00 A.M. on the third (fourth, if the pricing occurred after 4:30 p.m. on
any given day) business day after the date of this Agreement, or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called the "Firm Shares Closing Date"). Payment shall be made to
the Company and each
16
Selling Stockholder by wire transfer and payable in immediately available funds
to the order of the Company and each Selling Stockholder against delivery to the
Underwriters of the Firm Shares.
(e) Payment of the purchase price for, and delivery of, the Additional
Shares to be purchased by the Underwriters shall be made at the offices as set
forth above or at such other place as shall be agreed upon by the
Representatives and the Company at the time and on the date (which may be the
same as, but in no event shall be earlier than, the Firm Shares Closing Date)
specified in the notice referred to in Section 3(c) hereof (such time and date
of delivery and payment are called the "Additional Shares Closing Date"). The
Firm Shares Closing Date and the Additional Shares Closing Date are called,
individually, a "Closing Date" and together, the "Closing Dates." Payment shall
be made to the Company and Xxxx X. Xxxxx, Xx. by wire transfer and payable in
immediately available funds to the order of the Company and Xxxx X. Xxxxx, Xx.
against delivery to the Underwriters of the applicable Additional Shares.
(f) The Shares shall be in such denominations and registered in such names
as the Representatives may request in writing at least two business days before
the Firm Shares Closing Date or, in the case of the Additional Shares, on the
day of notice of exercise of the option as described in Section 3(c) hereof. The
Shares will be made available for examination and packaging by the Underwriters
not later than 1:00 P.M. on the last business day prior to the Firm Shares
Closing Date (or the Additional Shares Closing Date in the case of the
Additional Shares) at such place as is reasonably designated by the
Representatives. If the Representatives so elect, delivery of the Shares may be
made by credit through full FAST transfer to the accounts of The Depository
Trust Company designated by the Representatives.
(g) It is understood that the Representatives, individually and not as
Representatives of the several Underwriters, may (but shall not be obligated to)
make payment to the Company on behalf of any Underwriter or Underwriters for any
Shares to be purchased by such Underwriter or Underwriters in connection with
the Offering. Any such payment by the Representatives shall not relieve such
Underwriter or Underwriters from any of its or their other obligations
hereunder.
4. Covenants of the Company.
------------------------
(a) The Company covenants with each Underwriter as follows:
(i) The Company will use its reasonable best efforts to cause the
Registration Statement, if not effective at the Representation Date, and any
amendment thereto, to become effective, as promptly as possible after the filing
thereof and agrees to prepare the Prospectus in a form approved by the
Underwriters. The Company will not file any amendment to the Registration
Statement or amendment or supplement to the Prospectus of which the
Representatives shall not previously have been advised and furnished with a copy
or to which the Representatives shall reasonably object in writing after a
reasonable opportunity to review such amendment or supplement. Subject to the
foregoing sentences in this clause 4(a)(i), if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Prospectus
or supplement to the Prospectus is otherwise required under Rule 424(b), the
Company will cause the Prospectus, properly completed, or such supplement
thereto, to be filed
17
with the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (A) when the Registration Statement, if not effective at the
Representation Date, and any amendment thereto, shall have become effective, (B)
when the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (C) when any amendment to
the Registration Statement shall have been filed or become effective, (D) of
receipt of any comments from the Commission or any request by the Commission for
any amendment of or supplement to the Registration Statement or any Prospectus
or for any additional information, (E) of the receipt by the Company of any
notification of, or if the Company otherwise has knowledge of, the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose, (F) 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 such purpose
and (G) when, prior to termination of the Offering of the Shares, any document
shall have been filed by the Company under the Act or the Exchange Act or under
the rules and regulations promulgated thereunder. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the lifting thereof.
(ii) If, at any time when a prospectus relating to the Shares is required
to be delivered under the Act or the Act Regulations in connection with the
Offering of the Shares, any event occurs as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement or amend or
supplement the Prospectus to comply with the Act or the Act Regulations, the
Company promptly will prepare and file with the Commission, at the Company's
expense, an amendment or supplement which will correct such statement or
omission or effect such compliance and will use its reasonable best efforts to
cause the same to become effective as soon as possible; and, in case any
Underwriter is required to deliver a prospectus after such time, the Company
upon request, but at the expense of such Underwriter, will promptly prepare such
amendment or amendments to the Registration Statement and such Prospectus or
Prospectuses as may be necessary to permit compliance with the requirements of
the Act and the Act Regulations. Neither your consent to, nor your delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7.
(iii) During such period when a prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, the Company, at
its expense, will furnish to each Underwriter or mail to its order copies of the
Registration Statement, the Prospectus, the Preliminary Prospectus and all
amendments and supplements to any suchdocuments in each case as soon as
available and in such quantities as such Underwriter may reasonably request, for
the purposes contemplated by the Act.
(iv) The Company consents to the use of the Prospectus in accordance with
the provisions of the Act and with the securities or blue sky laws of the
jurisdictions in which the Shares are offered by the Underwriters and by all
dealers to whom Shares may be sold, both in connection with the Offering and for
such period of time thereafter as the Prospectus is required
18
by the Act to be delivered in connection with the sales by any Underwriter or
dealer. The Company will comply with all requirements imposed upon it by the Act
as the same may be amended so far as necessary to permit the continuance of
sales of or dealing in the Shares in accordance with the provisions hereof and
the Prospectus.
(v) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives a consolidated earnings
statement or statements of the Company and the Subsidiaries covering a
twelve-month period beginning with the first full calendar quarter following the
Effective Date which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 thereunder (it being understood that such delivery requirements shall
be deemed met by the Company's compliance with the Company's reporting
requirements pursuant to the Exchange Act and the Exchange Rules and
Regulations).
(vi) The Company will (A) on or before the Closing Date, deliver to the
Representatives manually signed copies of the Registration Statement as
originally filed and of each amendment thereto filed prior to the time the
Registration Statement becomes effective and, promptly upon the filing thereof,
manually signed copies of each post-effective amendment, if any, to the
Registration Statement (together with, in each case, all exhibits thereto unless
previously furnished to you) and will also deliver to you, for distribution to
the Underwriters, a sufficient number of additional conformed copies of each of
the foregoing (but without exhibits) so that one copy of each may be distributed
to each Underwriter, (B) as promptly as possible deliver to you and send to the
several Underwriters, at such office or offices as you may designate, as many
copies of the Preliminary Prospectus and Prospectus as you may reasonably
request and (C) thereafter from time to time during the period in which a
prospectus is required by law to be delivered by an Underwriter or dealer,
likewise send to the Underwriters as many additional copies of the Prospectus
and as many copies of any supplement to the Prospectus and of any amended
Prospectus, filed by the Company with the Commission, as you may reasonably
request for the purposes contemplated by the Act.
(vii) During the 90 day period following the Effective Date, the Company
shall cause each new director elected or appointed to the Company's Board of
Directors and each executive officer hired by the Company, in each case who
would be required to file statements of Beneficial Ownership in accordance with
Section 16 of the Exchange Act, to enter into a Lock-Up Agreement which will
terminate on the 91st day following the Effective Date.
(viii) The Company will apply the net proceeds from the Offering and sale
of the Shares to be sold by the Company in accordance with the description set
forth in the "Use of Proceeds" section of the Prospectus.
(ix) The Company will cooperate with the Underwriters and their counsel in
connection with endeavoring to obtain and maintain the qualification or
registration, or exemption from qualification, of the Shares for offer and sale
under the applicable securities laws of such states of the United States and
other jurisdictions as the Underwriters may designate; provided, that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to taxation or general service of process in any jurisdiction where
it is not now so subject.
19
(x) To the extent it is required to do so under the Exchange Act, the
Company will continue to file on a timely basis all reports and any definitive
proxy or information statement so required to be filed with the Commission and
furnish to its stockholders annual reports containing financial statements
certified by independent public accountants and with quarterly summary financial
information in reasonable detail which may be unaudited. During the period of
five years from the date hereof, the Company will deliver to the Representatives
and, upon request, to each of the other Underwriters, copies of each annual
report of the Company and each other report furnished by the Company to its
shareholders.
(xi) The Company will not, and will not permit any Subsidiary to, at any
time, directly or indirectly (A) take any action designed to cause or result in,
or that has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Shares or (B) (1) sell, bid for,
purchase or pay anyone any compensation for soliciting purchases of the Shares
or (2) pay or agree to pay any person any compensation for soliciting another to
purchase any other securities of the Company.
(xii) The Company will comply with all the provisions of any undertakings
contained in the Registration Statement.
(xiii) The Company will not for a period of 90 days following the date of
the Prospectus, without the prior written consent of Jefferies, (A) directly or
indirectly, offer, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, lend, pledge, hypothecate or otherwise dispose of or
transfer or enter into any transaction which is designed, or might reasonably be
expected, to result in the disposition of any shares of capital stock of the
Company or any securities convertible into or exercisable or exchangeable for or
repayable with shares of capital stock of the Company (other than (1) the
Shares, (2) shares of capital stock of the Company or securities convertible
into or exercisable or exchangeable for shares of capital stock of the Company
which are issued, sold or exchanged in connection with an acquisition by the
Company or one of its Subsidiaries, (3) shares of capital stock of the Company
or securities convertible into or exercisable or exchangeable for shares of
capital stock of the Company which are issued, sold or awarded pursuant to the
Management Incentive Plan as contemplated by and described in the Registration
Statement and Prospectus; provided, however, that any such shares of capital
stock or other securities issued, sold or awarded under the Management Incentive
Plan shall not vest or become exercisable prior to the 90th day following the
date of the Prospectus or (4) pursuant to the exercise of currently outstanding
options, warrants or rights which are described in the Registration Statement
and Prospectus), or enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of shares of such capital stock of the Company or securities
convertible into or exercisable or exchangeable for shares of capital stock of
the Company whether any such transaction is to be settled by delivery of capital
stock, or other securities, in cash or otherwise or (B) file (or participate in
the filing of) a registration statement with the Commission in respect of any
shares of capital stock of the Company or securities convertible into or
exercisable or exchangeable for such capital stock (except for (x) a
registration statement on Form S-8 or (y) a registration statement on (I) Form
S-4 covering the issuance of shares of capital stock in connection with and as
currency for an acquisition by the Company or (II) Form S-1 or other applicable
form
20
covering resales of capital stock issued by the Company in connection with and
as currency for, an acquisition by the Company; provided, however, that in no
event shall the Company cause or permit such registration statement on Form S-4
or such registration statement on Form S-1 or other applicable form to be
declared or become effective until the 90th day following the date of the
Prospectus) or (C) publicly announce any intention to effect any transaction
described in clause (A) or clause (B) during the ninety (90) days following the
date of the Prospectus, other than the transactions that are specifically
permitted by clause (A) and clause (B). In addition, (A) during the ninety (90)
days following the date of the Prospectus, the Company will not (x) release any
executive officer, director or security holder of the Company (other than each
of the Selling Stockholders) from their obligations under any similar agreement
with the Company not to sell, transfer or dispose of securities of the Company
for the 90-day period following the date of the Prospectus and (y) waive
compliance with any prohibitions on trading which may be in effect during such
90-day period under the Company's trading policy as previously provided to the
Representatives and in effect on the date hereof and (B) during the 180 days
following the date of the Prospectus, the Company will not (x) release any
Selling Stockholder from their obligations under any similar agreement with the
Company not to sell, transfer or dispose of securities of the Company for the
180-day period following the date of the Prospectus and (y) waive compliance
with any prohibitions on trading which may be in effect during such 180-day
period under the Company's trading policy as previously provided to the
Representatives and in effect on the date hereof.
(xiv) The Company shall use commercially reasonable efforts to cause the
Shares to be quoted on the Nasdaq National Market and shall use its reasonable
best efforts to maintain such trading while the Shares are outstanding for a
period of three hundred sixty five (365) days following the Firm Shares Closing
Date; provided, however, that during the 365-day period, the Company may apply
to list the securities on a national securities exchange in lieu of being
included for quotation on the Nasdaq National Market.
5. Covenants of the Selling Stockholders.
-------------------------------------
(a) Each Selling Stockholder, severally and not jointly, covenants with
each Underwriter with respect to himself or itself, as applicable, as follows:
(i) The Selling Stockholder will advise the Underwriters promptly of the
happening of any event known to the Selling Stockholder during any period in
which a prospectus relating to the Shares is required to be delivered under the
Act which, in the judgment of such Selling Stockholder, would require the making
of any change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading.
(ii) The Selling Stockholder will pay all federal and other taxes, if any, on
the transfer and sale of the Shares being sold by the Selling Stockholder to the
Underwriters. The Selling Stockholder will deliver to Jefferies on or prior to
the first Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form in lieu thereof).
21
6. Payment of Expenses.
-------------------
(a) The Company shall, regardless of whether the Offering contemplated by
this Agreement and the Prospectus is consummated, be responsible for and shall
pay all costs, fees and expenses incurred in connection with or incident to the
proposed Offering, including, without limitation, (A) all expenses and taxes
incident to the authorization, issuance, sale and delivery of the Shares to be
sold by the Company to the Representatives, (B) all expenses incident to the
registration of the Shares under the Act, (C) all costs of preparing stock
certificates, including printing and engraving costs, (D) all fees and expenses
of the registrar and transfer agent of the Shares, (E) without limiting clause
(A) above, all necessary, transfer and other stamp taxes in connection with the
issuance and sale of the Shares to be sold by the Company to the Underwriters,
(F) all fees and expenses of the Company's counsel, the Company's independent
accountants and any other experts or consultants retained by or on behalf of the
Company in connection with the Offering, (G) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of
the Registration Statement, each Preliminary Prospectus and the Prospectus,
including all exhibits and financial statements, and all amendments and
supplements provided for herein, including, without limitation, any
post-effective amendments, the blue sky memoranda, this Agreement, the Agreement
among Underwriters, the Underwriters' Questionnaire and Power of Attorney, (H)
the filing fees and expenses incurred by the Company or the Underwriters in
connection with exemptions from qualifying or registering (or obtaining
qualification or registration of) all or any part of the Shares for offer and
sale and determination of eligibility for investment under the blue sky or other
securities laws of such jurisdictions as the Representatives may designate
(including related fees and expenses of counsel to the Underwriters), (I) the
fees paid or incurred in connection with filings made with the NASD (including
related fees and expenses of counsel to the Underwriters not to exceed $10,000),
(J) all travel and lodging fees and expenses incurred by or on behalf of
officers and representatives of the Company in connection with presentations to
prospective purchasers of the Shares, (K) all word processing charges, messenger
and duplicating services, facsimile expenses and other customary expenses of the
Company related to the proposed Offering, (L) the costs and expenses relating to
preparation and delivery to the Underwriters of five closing binders, (M) all
applicable listing or other fees relating to the Shares, including, without
limitation, the fees relating to quotation of the Class A Common Stock on the
Nasdaq National Market and (N) all other costs and expenses incident to the
performance by the Company and each Selling Stockholder of their obligations
under this Agreement; provided, however, that except as provided in this Section
6 and in Section 11, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel.
(b) Each Selling Stockholder will pay, either directly or by reimbursement,
all fees and expenses incident to the performance of such Selling Stockholder's
obligations under this Agreement, which are not otherwise specifically provided
for herein, including without limitation, the underwriting discounts and
commissions applicable to the Selling Stockholders Firm Shares or the Selling
Stockholder Additional Shares.
(c) Unless otherwise specifically stated in Section 8(b), no fee, cost or
expense paid or payable by or to Jefferies or any of its affiliates shall be
credited against any other fee, cost or expense paid or payable by or to
Jefferies or any of its affiliates.
22
7. Conditions of the Underwriters' Obligation.
------------------------------------------
The several obligations of the Underwriters to purchase the Shares
hereunder are subject to the accuracy of the representations and warranties of
the Company and the Selling Stockholders herein contained as of the date hereof
and on each Closing Date, to the accuracy of the statements of the Company and
the Selling Stockholders made in any certificate or certificates pursuant to the
provisions hereof as of the date of thereof and on each Closing Date and to the
performance by each of the Company and each of the Selling Stockholders of its
obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later than
5:30 P.M. on the date hereof, or at such later time and date as may be approved
by the Representatives and the Company, and shall remain effective at each
Closing Date. No stop order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Shares under the Act shall
be in effect or proceedings therefor initiated or threatened by the Commission.
If the Company has elected to rely upon Rule 430A, the price of the Shares and
any price-related or other information previously omitted from the effective
Registration Statement pursuant to Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) within the prescribed time period,
and prior to the Firm Shares Closing Date, the Company shall have provided
evidence satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been promptly
filed and declared effective in accordance with the requirement of Rule 430A.
(b) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, and except as set forth in or
contemplated in the Prospectus, there shall not have occurred (i) any change in
or affecting the business (including, without limitation, a change in management
or control of the Company), properties, prospects, condition (financial or
other), or results of operations of the Company or the Subsidiaries, taken as a
whole, or adverse change in the capital stock, short-term debt or long-term debt
of the Company which, in the good faith judgment of the Representatives,
materially adversely affects the market for the Shares or otherwise makes it
impracticable or inadvisable to proceed with the Offering or to purchase the
Shares as contemplated by this Agreement or (ii) any material loss or
interference with the business or properties of the Company or any of the
Subsidiaries from fire, explosion, acts of terrorism, flood or other casualty,
whether or not covered by insurance, or from any labor dispute, (iii) any
development involving any court or legislative or other governmental or
administrative action, order or decree, which is not set forth or fully
described in the Registration Statement and the Prospectus and which would have
a Material Adverse Effect, if in the judgment of the Representatives any such
development makes it impracticable or inadvisable to proceed with completion of
the Offering and the sale of and payment for the Shares, or (iv) any development
involving any governmental investigation involving the Company or any Subsidiary
which is not set forth or fully described in the Registration Statement and the
Prospectus if in the judgment of the Representatives any such development makes
it impracticable or inadvisable to proceed with completion of the Offering and
the sale and payment for the Shares.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation,
investigation or
23
other proceeding instituted against the Company or any of the
Subsidiaries or any of their respective officers, directors or senior management
personnel, before or by any federal, state, local or foreign court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, or arbitrator, in which such litigation, investigation or proceeding an
unfavorable ruling, decision or finding would result in a Material Adverse
Effect or may affect the Company's or any Selling Stockholder's ability to
perform their respective obligations under this Agreement.
(d) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Shares, the Registration
Statement and the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby and by the Registration
Statement and Prospectus shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Company and each Selling
Stockholder shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
(e) (i) Xxxxxx & Xxxxxx, counsel for the Company and the Selling
Stockholders, shall have furnished to the Underwriters their opinion, reasonably
satisfactory in form and substance to counsel for the Underwriters, dated each
Closing Date and (ii) Xxxxxxx Xxxxx, general counsel to the Company, shall have
furnished to the Underwriters his opinion, reasonably satisfactory in form and
substance to counsel for the Underwriters, dated each Closing Date, relating to
matters pertaining to Subsidiaries of the Company organized outside the United
States.
(f) Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, shall have
furnished to the Underwriters an opinion with respect to such matters as may be
reasonably requested by the Underwriters, dated each Closing Date.
(g) The following conditions contained in clauses (A) through (E) of this
Section 7(g) shall have been satisfied on and as of each Closing Date and the
Company shall have furnished to the Underwriters a certificate of the Company,
signed by the Chairman of the Board or the President and the principal financial
or accounting officer of the Company, dated such Closing Date, to the effect
that the signers of such certificate have examined and reviewed the Registration
Statement, the Prospectus, any supplement or amendment to the Prospectus and
this Agreement and that:
(A) the representations and warranties of the Company in this Agreement are
true and correct on and as of such Closing Date, with the same effect as if made
on such Closing Date; and the Company has complied with all the agreements and
satisfied all the conditions under this Agreement on its part to be performed or
satisfied at or prior to such Closing Date;
(B) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, threatened;
24
(C) since the date of the most recent financial statements included in the
Prospectus, there has been no change or development involving a prospective
change, with respect to the business, properties, financial condition or results
of operations of the Company or the Subsidiaries, taken as a whole, that could
reasonably be expected to have a Material Adverse Effect;
(D) Based on his knowledge, the Registration Statement does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered by this
Registration Statement; and
(E) Based on his knowledge, the financial statements and other financial
information included in this Registration Statement, fairly present in all
material respects the financial condition, results of operations and cash flows
of the Company as of, and for, the periods presented in this Registration
Statement.
(h) As of each Closing Date, each Selling Stockholder shall have furnished
to the Underwriters a certificate of such Selling Stockholder, signed by such
Selling Stockholder, dated each Closing Date, to the effect that: (i) such
Selling Stockholder has carefully examined and reviewed the Registration
Statement, the Prospectus, any supplement or amendment to the Prospectus and
this Agreement and that the representations and warranties of such Selling
Stockholder in this Agreement are true and correct on and as of such Closing
Date, with the same effect as if made on such Closing Date; and (ii) such
Selling Stockholder has complied with all the agreements and satisfied all the
conditions under this Agreement on its part to be performed or satisfied at or
prior to such Closing Date.
(i) At the Effective Date, and at each Closing Date, the Representatives
shall have received from each of Deloitte & Touche LLP, PricewaterhouseCoopers
LLP and Ernst & Young LLP a letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the respective dates
set forth above (i) confirming that they are independent public accountants
within the meaning of the Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date thereof (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date thereof), the conclusions and
finding of such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(j) The Nasdaq National Market shall have approved the Shares for
inclusion, subject only to official notice of issuance and evidence of
satisfactory distribution.
(k) At each Closing Date, counsel for the Underwriters shall have been
furnished with such information, certificates and documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Shares as contemplated herein and related proceedings, or to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained, or otherwise in
25
onnection with the Offering contemplated hereby; and all opinions and
certificates mentioned above or elsewhere in this Agreement shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
(l) The Representatives shall have received the Lock-Up Agreements
referenced in Section 1(a)(xl).
8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify, defend and hold harmless, each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, to the fullest extent lawful from and
against any losses, expenses, claims, damages or liabilities (including any and
all investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted), which, jointly or severally, any of them may become subject
under the Act, the Exchange Act, or any other federal, state, local or foreign
statute or regulation, at common law or otherwise insofar as such losses,
expenses, claims, damages or liabilities arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in (A)
the Registration Statement, any Preliminary Prospectus or the Prospectus, or in
any amendment thereof or supplement thereto, or (B) any blue sky application or
other document executed by the Company specifically for that purpose or based
upon information furnished by the Company in writing filed in any state or other
jurisdiction in order to qualify any or all of the Shares under the securities
laws thereof or filed with the Commission or any securities association or
securities exchange (each, an "Application"), or (C) in any materials or
information provided to investors by, or with the approval of, the Company in
connection with the marketing of the Offering, including any roadshow or
investor presentations made to investors by the Company (whether in person or
electronically), or (ii) the omission or alleged omission to state (with respect
to (A), (B) or (C) above) therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (iii) subject to the last sentence
of this Section 8(a), any untrue statement or alleged untrue statement made in
Section 1(a) of this Agreement by the Company; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
expense, claim, damage or liability 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 the written information
furnished to the Company by the Representatives on behalf of any Underwriters
expressly for use in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
any Application or any materials described in (C) above; and provided, further,
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any Preliminary Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the benefit of any
such Underwriter, the directors, officers, employees or agents of such
Underwriter or any persons controlling such Underwriter and the Company shall
not be liable to any such Underwriter, the directors, officers, employees or
agents of such Underwriter or any persons controlling such Underwriter, from
whom the person asserting any such losses, expenses, claims, damages or
liabilities purchased the Shares concerned, to the extent that any such loss,
expense, claim, damage or liability results from the
26
fact that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Shares to such person, a copy of the
Prospectus, as the same may be amended or supplemented, as required by the Act
(if required thereby), and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in such Prospectus and the Company had
previously furnished copies thereof to such Underwriter on a timely basis in
order to permit the Prospectus (as the same may be amended or supplemented) to
be sent or given. The foregoing indemnity agreement shall be in addition to any
liability that the Company may otherwise have. Solely for purposes of the
indemnity agreement with respect to the matters described in clause (iii) of
this Section 8(a), the term Material Adverse Effect as used to qualify or limit
any representation made by the Company in this Agreement shall mean a Material
Adverse Effect as such term is defined in Section 1(a)(iii) of this Agreement
without giving effect to the term "prospects."
(b) Each Selling Stockholder, severally and not jointly, agrees to
indemnify, defend and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person
who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the fullest extent lawful from and against
any losses, expenses, claims, damages or liabilities (including any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), which, jointly or severally, any of them may become subject
under the Act, the Exchange Act, or any other federal, state, local or foreign
statute or regulation, at common law or otherwise, as such expenses are
incurred, insofar as such losses, expenses, claims, damages or liabilities arise
out of or are based upon (i) any untrue statement or alleged untrue statement of
a material fact contained (A) in the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
that is based upon information provided by or on behalf of such Selling
Stockholder or information under the caption "Principal and Selling
Stockholders" that specifically relates to such Selling Stockholder, or (B) in
any Application executed by such Selling Stockholder specifically for that
purpose or based upon information furnished by or on behalf of such Selling
Stockholder filed in any Application, or (ii) the omission or alleged omission
to state therein with respect to either (A) or (B) a material fact required to
be stated therein or necessary to make the statements therein not misleading or
(iii) any untrue statement or alleged untrue statement made in Section 2(a) of
this Agreement by such Selling Stockholder; provided, however, that such Selling
Stockholder will not be liable in any such case to the extent that any such
loss, expense, claim, damage or liability 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 the written
information furnished to such Selling Stockholder or the Company by the
Representatives on behalf of any Underwriters expressly for use in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or any Application; and
provided, further, that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus, the
indemnity agreement contained in this Section 8(b) shall not inure to the
benefit of any such Underwriter, the directors, officers, employees or agents of
such Underwriter or any persons controlling such Underwriter and such Selling
Stockholder shall not be liable to any such Underwriter, the directors,
officers, employees or agents of such Underwriter or any persons controlling
such Underwriter, from whom the person asserting any
27
such losses, expenses, claims, damages or liabilities purchased the Shares
concerned, to the extent that any such loss, expense, claim, damage or liability
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Shares to such person, a
copy of the Prospectus, as the same may be amended or supplemented, as required
by the Act (if required thereby), and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in such Preliminary Prospectus was corrected in such Prospectus and such
Selling Stockholder had previously furnished copies thereof to such Underwriter
on a timely basis in order to permit the Prospectus (as the same may be amended
or supplemented) to be sent or given. The foregoing indemnity agreement shall be
in addition to any liability that such Selling Stockholder may otherwise have.
(c) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Company, each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director of the Company and each officer who signs the Registration Statement,
and each Selling Stockholder, to the same extent as the foregoing indemnities
from the Company and each Selling Stockholder to each Underwriter, the
directors, officers, employees, and agents of such Underwriter and any person
controlling such Underwriter, but only insofar as such loss, expense, claim,
damage or liability arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission made in reliance on or in
conformity with information relating to such Underwriter furnished in writing to
the Company by the Representatives on behalf of such Underwriter, expressly for
use in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability that any Underwriter may
otherwise have.
(d) If any action is brought against an indemnified party under this
Section 8, the indemnified party or parties shall promptly notify the
indemnifying party in writing of the institution of such action (provided that
the failure to give such notice shall not relieve the indemnifying party of any
liability which it may have pursuant to this Agreement, unless and to the extent
the indemnifying party did not otherwise learn of such action and such failure
has resulted in the forfeiture of substantive rights or defenses by the
indemnifying party) and the indemnifying party shall assume the defense of such
action, including the employment of counsel and payment of reasonable expenses.
The indemnified party or parties shall have the right to employ separate counsel
(including local counsel) in any such case and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by the indemnifying party in connection with the
defense of such action, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to take charge of the
defense of such action within a reasonable time after notice of the institution
of such action, (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them that are different
from or additional to those available to the indemnifying party or (iv) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest (in which case the
indemnifying party 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 party and paid as incurred;
provided that the indemnifying party shall only be responsible for the fees and
expenses of one counsel for the indemnified party or parties hereunder. Anything
in this paragraph to the contrary
28
notwithstanding, the indemnifying party shall not be liable for any settlement
of any such claim or action effected without its written consent, which consent
shall not be unreasonably withheld. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent involves only the payment of monetary damages and includes
an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(e) If the indemnification provided for in this Section 8 is unavailable to
an indemnified party under subsections (a), (b) or (c) of this Section 8 or is
insufficient to hold harmless a party indemnified thereunder, in respect of any
losses, expenses, claims, damages or liabilities referred to therein, then each
applicable indemnifying party shall contribute to the amount paid in settlement
of any action, suit or proceeding or any claims asserted, but after deducting
any contribution received by an applicable indemnified party from persons who
may also be liable for contribution, including persons who control the
indemnified party within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, in such proportion as is appropriate to reflect the relative
benefits received by the Company or the Selling Stockholders on the one hand,
and the Underwriters on the other hand, from the Offering or, if, but only 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 or the Selling Stockholders on the one hand,
and the Underwriters on the other hand, in connection with the statements or
alleged statements or omissions or alleged omissions which resulted in such
losses, expenses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company or the
Selling Stockholders on the one hand, and the Underwriters on the other hand,
shall be deemed to be in the same proportion as the total proceeds from the
Offering (net of underwriting discounts but before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company or the Selling Stockholders on the one hand, and the Underwriters on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, expenses, claims and liabilities referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any claim or action. The Company,
the Selling Stockholders and the Underwriters agree that it would not be just
and equitable if contribution pursuant hereto 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 8(e), no Underwriter shall be required to contribute any amount in
excess of the underwriting discount received by it by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled
29
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 8(e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The Company and the Selling Stockholders may agree, as between
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of such liability for which they each
shall be responsible; provided that in the absence of any such agreement, such
liability shall be allocated in accordance with each such party's pro rata
portion of the aggregate net proceeds from the Offering contemplated hereby.
(g) The liability of each Selling Stockholder under the Selling
Stockholders' representations and warranties contained in Section 2 hereof and
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the price received by such Selling
Stockholder for the Shares sold by such Selling Stockholder to the Underwriters.
9. Survival. The respective indemnity and contribution agreements contained in
Section 8 hereof and the covenants, warranties and other representations of the
Company and the Selling Stockholders contained in this Agreement or contained in
certificates of officers of the Company or the Selling Stockholders submitted
pursuant hereto, shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or any of their
respective officers, employees, directors, stockholders or persons who control
the Underwriters within the meaning of Section 15 of the Act, or by or on behalf
of the Company or any of its directors, officers, employees or any person who
controls the Company within the meaning of Section 15 of the Act or any Selling
Stockholder, and shall survive delivery of and payment for the Shares.
10. Default by an Underwriter. If one or more of the Underwriters shall fail or
refuse on the Firm Shares Closing Date or the Additional Shares Closing Date to
purchase and pay for any of the Shares agreed to be purchased by such
Underwriter or Underwriters hereunder on such date and the aggregate number of
Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as the Representatives may
specify, to purchase the Firm Shares or Additional Shares, as the case may be,
which such defaulting Underwriter or Underwriters, as the case may be, agreed
but failed or refused to purchase on such date; provided that in no event shall
the number of Firm Shares or Additional Shares, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 3 hereof be increased
pursuant to this Section 10 by an amount in excess of one-tenth of such number
of Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Firm Shares Closing Date or on the
Additional Shares Closing Date, as the case may be, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares, or Additional Shares,
as the case may be, and the aggregate number of Firm Shares or Additional
Shares, as the case may be, with respect to which such default occurs is more
than one-tenth of
30
the aggregate number of Shares to be purchased on such date by all Underwriters
in the event of a default by an Underwriter and arrangements satisfactory to the
Representatives and the Company for purchase of such Shares are not made within
48 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Selling Stockholders and the
Company. In any such case which does not result in termination of this
Agreement, either the Representatives or the Company shall have the right to
postpone the Firm Shares Closing Date or the Additional Shares Closing Date, as
the case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of any such Underwriter under this Agreement.
11. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by written notice to
the Company and the Selling Stockholders prior to the Firm Shares Closing Date
(or, if applicable, the Additional Shares Closing Date) (i) if there shall occur
any failure, refusal or inability of the Company or the Selling Stockholders to
satisfy any of the conditions contained in Section 7 hereof or (ii) if, since
the date of this Agreement and prior to the Firm Shares Closing Date (or, if
applicable, the Additional Shares Closing Date), (A) there has occurred any
material adverse change in the financial markets of the United States or in
political, financial or economic conditions in the United States or any outbreak
or material escalation of hostilities or any other insurrection or armed
conflict or declaration by the United States of a national emergency or war or
other calamity or crisis, the effect of which on the financial securities
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Shares on the terms
and in the manner contemplated by the Prospectus, (B) trading in any of the
securities of the Company has been suspended by the Commission, or trading
generally on the New York Stock Exchange or the Nasdaq National Market has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by the New York Stock
Exchange or the Nasdaq National Market or by order of the Commission or any
other governmental authority or (C) a banking moratorium has been declared by
any of the federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 11 or any
other provision of this Agreement, such termination shall be without liability
of any party to any other party except the provisions of Sections 6, 8 and 11(c)
shall remain in full force and effect.
(c) Notwithstanding any other provisions hereof, (i) if this Agreement
shall be terminated by the Representatives under Section 11, the Company will
bear and pay the expenses to be paid by the Company pursuant to Section 6 hereof
and (ii) if this Agreement shall be terminated by the Representatives under
Section 11(a)(i), in addition to its obligations pursuant to Section 8 and
Section 11(c)(i) hereof, the Company will reimburse the out-of-pocket expenses
of the several Underwriters (including reasonable fees and disbursements of
counsel for the underwriters) incurred in connection with this Agreement and the
proposed purchase and Offering of the Shares, and promptly upon demand the
Company will pay such amounts to the Representatives.
31
12. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed, delivered or transmitted
by facsimile or telegraphed and confirmed. Notices to the Representatives or the
Underwriters shall be directed to the Underwriters, c/x Xxxxxxxxx & Company,
Inc., 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of
Xxxxx Xxxxx, with a copy to Xxxxxx, Xxxxx & Bockius LLP, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention of Xxxxxx Xxxxx, Esq.; notices to the Company or
the Selling Stockholders shall be directed to 00000 Xxx Xxxxxxx Xxxxxxx,
Xxxxxxx, XX 00000, attention of Xxxxxx Xxxxxxxx, with a copy to Xxxxxx & Xxxxxx,
Xxxxx 000, 0000 Xxxxxx Xxxxxxxxx, XxXxxx, Xxxxxxxx 00000, attention of Xxxxxx
Xxx, Esq.
13. Parties. This Agreement shall inure to the benefit of and be binding upon
the Underwriters, the Company, the Selling Stockholders and their respective
successors and legal representatives and controlling persons and officers,
employees, directors and stockholders referred to in Sections 8 and 9 and their
respective heirs and legal representatives. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to provide any person, firm or
corporation, other than the Underwriters, the Company, the Selling Stockholders
and their respective successors and legal representatives and the controlling
persons and officers, employees, directors and stockholders referred to in
Sections 8 and 9 and their respective heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company, the Selling Stockholders and their respective
successors and legal representatives, and said controlling persons,
stockholders, officers and directors and their respective heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Shares from the Underwriters shall be deemed to be a successor by
reason merely of such purchase.
7. Construction; Choice of Law. This Agreement incorporates the entire
understanding of the parties and supersedes all previous agreements relating to
the subject matter hereof should they exist. This Agreement and any issue
arising out of or relating to the parties' relationship hereunder shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to the principles of conflicts of law thereof.
8. Jurisdiction and Venue. Each party hereto consents specifically to the
exclusive jurisdiction of the federal courts of the United States sitting in the
Southern District of New York, or if such federal court declines to exercise
jurisdiction over any action filed pursuant to this Agreement, the courts of the
State of New York in the County of New York, and any court to which an appeal
may be taken in connection with any action filed pursuant to this Agreement, for
purposes of all legal proceedings arising out of or relating to this Agreement.
In connection with the foregoing consent, each party irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the court's exercise of personal jurisdiction over each party to this
Agreement or the laying of venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum. Each party further irrevocably waives its right to a
trial by jury and consents that service of process may be effected in any manner
permitted under the laws of the State of New York.
32
9. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
10. Partial Unenforceability. The invalidity or unenforceability of any section,
paragraph or provision of this Agreement shall not affect the validity or
enforceability of any other section, paragraph or provision hereof. If any
section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
11. General. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company, the Selling Stockholders and the
Representatives.
[Remainder of page intentionally left blank]
* * * * *
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and each Selling Stockholder a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement among the Underwriters, the Company and the Selling
Stockholders in accordance with its terms.
Very truly yours,
MANTECH INTERNATIONAL CORPORATION
By:
---------------------------------------------
Name:
Title:
SELLING STOCKHOLDER
------------------------------------------
Xxxxxx X. Xxxxxxxx
CONFIRMED AND ACCEPTED, SELLING STOCKHOLDER as of the date first above written:
XXXXXXXXX/QUARTERDECK, LLC, ________________________________________
Xxxx Xxxxx Xxxx Xxxxxx Incorporated Xxxxxxxx Family Trust #1/u/a dated April 24,
1994
U.S. Bancorp Xxxxx Xxxxxxx
Xxxxx, Xxxxxxxx & Xxxx, Inc.
BB&T Capital Markets/Xxxxx & Xxxxxxxxxxxx, Inc.
For themselves and as Representatives of the
Several Underwriters named in Schedule 1
----------
of this Agreement
--------------------------------------------------------
SELLING STOCKHOLDER
By: Xxxxxxxxx/Quarterdeck, LLC
-----------------------------------------
Xxxx X. Xxxxx, Xx.
By:
---------------------------------
Name:
Title:
Xxxxxxxxx & Company, Inc.
By:
---------------------------------
Name:
Title:
Schedule I
Number of Firm Shares
--------------------------------------
Underwriter To Be Purchased
Xxxxxxxxx/Quarterdeck, LLC and Xxxxxxxxx & Company, Inc.
Xxxx Xxxxx Xxxx Xxxxxx Incorporated
U.S. Bancorp Xxxxx Xxxxxxx
Xxxxx, Xxxxxxxx & Xxxx, Inc.
BB&T Capital Markets/Xxxxx & Xxxxxxxxxxxx, Inc.
-----------------
Total
=================
