Exhibit 1.1
VIALOG CORPORATION
_______ Shares/1/
Common Stock
UNDERWRITING AGREEMENT
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________ ___, 1998
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXX & COMPANY, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vialog Corporation, a Massachusetts corporation (the "Company"), each of
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Conference Source International, Inc., a Georgia corporation, Call Points, Inc.,
a Delaware corporation, Xxxxxxx Square Teleconferencing, Inc., a Massachusetts
corporation, American Conferencing Company, Inc., a Delaware corporation,
Telephone Business Meetings, Inc., a Delaware corporation, Communication
Development Corporation, a Connecticut corporation, and ABC Acquisition
Corporation, a Delaware corporation (the "Vialog Merger Subsidiary") (each, a
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"Subsidiary" and collectively, the "Subsidiaries"), and Xxxxx X. Xxxxxx (the
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"Selling Securityholder") hereby confirm their agreement with the several
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underwriters named in Schedule 1 hereto (the "Underwriters"), for whom you have
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been duly authorized to act as representatives (in such capacities, the
"Representatives"), as set forth below. All references herein to the
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Representatives shall be deemed to be to the Underwriters.
Pursuant to an agreement and plan of reorganization (the "Acquisition
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Agreement") by and among the Company, the Vialog Merger Subsidiary, A Business
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Conference Call, Inc., a Minnesota corporation ("ABCC"), Xxxxxx X. Xxxxxx and
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Xxxxxx X. Xxxxx, the Company through the Vialog Merger Subsidiary, its wholly-
owned subsidiary, will acquire by merger, all of the issued and outstanding
stock of ABCC. The transactions contemplated by the Acquisition Agreement are
herein referred to as the "Acquisition."
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/1/ Plus an option to purchase from Vialog Corporation up to _____________
additional shares to cover over-allotments.
1. Securities. Subject to the terms and conditions herein contained,
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(i) the Company proposes to issue and sell to the several Underwriters an
aggregate of ___ shares (the "Firm Securities") of the Company's common stock,
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par value $.01 per share ("Common Stock") and (ii) the Selling Securityholder
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proposes to sell to the several Underwriters an aggregate of 267,826 shares of
Common Stock, which shares constitute all of the shares of Common Stock owned by
him (the "Selling Securityholder Securities"). The Company also proposes to
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issue and sell to the several Underwriters not more than _______________
additional shares of Common Stock if requested by the Representatives as
provided in Section 4 of this Agreement. Any and all shares of Common Stock to
be purchased by the Underwriters pursuant to such option are referred to herein
as the "Option Securities," and the Firm Securities, the Selling Securityholder
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Securities and any Option Securities are collectively referred to herein as the
"Securities."
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2. Representations and Warranties of the Company and the Subsidiaries. The
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Company and the Subsidiaries, jointly and severally, represent and warrant to
and agree with each of the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-53395) with respect to
the Securities, including a prospectus subject to completion, has been filed by
the Company with the Securities and Exchange Commission (the "Commission") under
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the Securities Act of 1933, as amended (the "Act"), and one or more amendments
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to such registration statement may have been so filed. After the execution of
this Agreement, the Company will file with the Commission either (i) if such
registration statement, as it may have been amended, has been declared by the
Commission to be effective under the Act, either (A) if the Company relies on
Rule 434 under the Act, a Term Sheet (as hereinafter defined) relating to the
Securities, that shall identify the Preliminary Prospectus (as hereinafter
defined) that it supplements containing such information as is required or
permitted by Rules 434, 430A and 424(b) under the Act or (B) if the Company does
not rely on Rule 434 under the Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the Representatives prior
to the execution of this Agreement, or (ii) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the Act, an 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. The
Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering certain
additional Securities, which registration shall be effective upon filing with
the Commission. As used in this Agreement, the term "Original Registration
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Statement" means the registration statement initially filed relating to the
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Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Act and included
in the Prospectus (as hereinafter defined); the term "Rule 462(b) Registration
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Statement" means any registration statement filed with the Commission pursuant
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to Rule
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462(b) under the Act (including the Registration Statement and any Preliminary
Prospectus or Prospectus incorporated therein at the time such Registration
Statement becomes effective); the term "Registration Statement" includes both
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the Original Registration Statement and any Rule 462(b) Registration Statement;
the term "Preliminary Prospectus" means each prospectus subject to completion
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filed with such registration statement or any amendment thereto (including the
prospectus subject to completion, if any, included in the Registration Statement
or any amendment thereto at the time it was or is declared effective); the term
"Prospectus" means:
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(A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule 424(b)(7)
under the Act, together with the Preliminary Prospectus identified therein
that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the prospectus
first filed with the Commission pursuant to Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and if no
prospectus is required to be filed pursuant to Rule 424(b) under the Act,
the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
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of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
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that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or suspending use of
any Preliminary Prospectus. When any Preliminary Prospectus was filed with the
Commission it (i) contained all statements required to be stated therein in
accordance with, and complied in all material respects with the requirements of,
the Act and the rules and regulations of the Commission thereunder and (ii) did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. When the
Registration Statement or any amendment thereto was or is declared effective, it
(i) contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any Term Sheet that is
a part thereof or any amendment or supplement to the Prospectus is filed with
the Commission pursuant to Rule 424(b) (or, if the Prospectus or part thereof or
such amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such amendment or
supplement to the Prospectus was or is declared effective) and on the Firm
Closing Date and any Option Closing Date (both as hereinafter defined), the
Prospectus, as amended or supplemented at any such time, (i) contained or will
contain all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
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of, the Act and the rules and regulations of the Commission thereunder and (ii)
did not or will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (b) do not apply to statements or
omissions made in any Preliminary Prospectus, the Registration Statement or any
amendment thereto or the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein.
(c) If the Company has elected to rely on Rule 462(b) and the Rule 462(b)
Registration Statement has not been declared effective (i) the Company has filed
a Rule 462(b) Registration Statement in compliance with and that is effective
upon filing pursuant to Rule 462(b) and has received confirmation of its receipt
and (ii) the Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under the Act or
the Commission has received payment of such filing fee.
(d) Each written contract to which the Company is a party and to which
reference is made in the Prospectus has been duly and validly executed, is in
full force and effect in accordance with its respective terms, and, except as
set forth in the Prospectus, none of such contracts has been assigned by the
Company; and, except as set forth in the Prospectus, the Company knows of no
present fact, condition or act which could prevent compliance with the terms of
such contracts, as amended to date. Except for amendments or modifications of
such contracts in the ordinary course of business and except as may be disclosed
in the Prospectus, the Company has no intention of exercising any right which it
may have to cancel any of its obligations under any of such contracts, and has
no knowledge that any other party to any of such contracts has any intention not
to render full performance under such contracts. None of the provisions of such
contracts or documents violates any existing applicable law, rule, regulation,
judgment, order or decree of any governmental agency or court having
jurisdiction over the Company or any of its assets or businesses.
(e) The Company and each of the Subsidiaries have been duly organized and
are validly existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation and are duly qualified to transact
business as foreign corporations and are in good standing under the laws of all
other jurisdictions where the ownership or leasing of their respective
properties or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the general
affairs, management, business, condition (financial or otherwise), prospects,
net worth or results of operations of the Company and the Subsidiaries, taken as
a whole (any such event, a "Material Adverse Effect").
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(f) The Company and each of the Subsidiaries have full power (corporate and
other) to own or lease their respective properties and conduct their respective
businesses as described in the Registration Statement and the Prospectus or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus; and
the Company and each of the Subsidiaries have full
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power (corporate and other) to enter into this Agreement and to carry out all
the terms and provisions hereof to be carried out by each of them, respectively.
(g) The issued shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and nonassessable, were
not issued in violation of any preemptive or similar rights and are owned
beneficially by the Company free and clear of any security interests, liens,
encumbrances, equities, claims or restrictions on transferability (other than
those imposed by the Act and the securities or "Blue Sky" laws of certain
jurisdictions) or voting.
(h) The Company has an authorized, issued and outstanding capitalization as
set forth in the Prospectus or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus. All of the issued shares of capital stock of the
Company have been duly authorized and validly issued, were not issued in
violation of any preemptive or similar rights and are fully paid and
nonassessable. No sales of securities have been made by the Company in violation
of the provisions of the Act, the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or state securities laws. The Firm Securities and the
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Option Securities have been duly authorized and at the Firm Closing Date or the
related Option Closing Date (as the case may be), after payment therefor in
accordance herewith, will be validly issued, fully paid and nonassessable. No
holders of outstanding shares of capital stock of the Company are entitled as
such to any preemptive or other rights to subscribe for any of the Securities,
and no holder of securities of the Company has any right which has not been
fully exercised or waived to require the Company to register the offer or sale
of any securities owned by such holder under the Act in the public offering
contemplated by this agreement.
(i) The capital stock of the Company conforms to the description thereof
contained in the Prospectus or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus.
(j) Except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no outstanding
(A) securities or obligations of the Company or any of the Subsidiaries
convertible into or exchangeable for any capital stock of the Company or any
such Subsidiary, (B) warrants, rights or options to subscribe for or purchase
from the Company or any Subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (C) obligations of the
Company or any Subsidiary to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(k) The consolidated financial statements and schedules of the Company and
its consolidated subsidiaries (including the notes thereto) included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present the financial
position of the Company and its consolidated subsidiaries and the results of
operations and changes in financial condition as of the dates and periods
therein specified. Such financial statements and schedules (including the notes
thereto) have been prepared in accordance with generally accepted accounting
principles consistently
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applied throughout the periods involved (except as otherwise noted therein). The
summary and selected financial data set forth under the captions "Summary
Historical and Pro Forma Financial Data" and "Selected Financial Data" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis stated in the Prospectus
(or such Preliminary Prospectus), the information included therein. Except as
described in the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus), the pro forma financial statements under the headings
"Summary Historical and Pro Forma Financial Data" and "Selected Financial Data"
(including the notes thereto) and the other pro forma financial information (but
excluding all projected or forecasted financial information) included in the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) (i) comply as to form in all material respects with the applicable
requirements of Regulation S-X promulgated under the Exchange Act, (ii) have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, and (iii) have been properly computed
on the bases described therein. The assumptions used in the preparation of the
pro forma financial data and other pro forma and projected financial information
included in the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus) are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(l) KPMG Peat Marwick, LLP, who have certified certain financial statements
of the Company and the Subsidiaries and delivered their report with respect to
the audited financial statements and schedules included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), are independent public accountants as
required by the Act and the applicable rules and regulations thereunder.
(m) The execution and delivery of this Agreement have been duly authorized
by the Company and each of the Subsidiaries and this Agreement has been duly
executed and delivered by the Company and each of the Subsidiaries, and is the
valid and binding agreement of the Company and each of the Subsidiaries,
enforceable against the Company and each of the Subsidiaries in accordance with
its terms.
(n) No legal or governmental proceedings are pending to which the Company
or any of the Subsidiaries is a party or to which the property of the Company or
any of the Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus), and
no such proceedings have been threatened against the Company or any of the
Subsidiaries or with respect to any of their respective properties; and no
contract or other document is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement that is not described therein (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or filed as required.
(o) The issuance, offering and sale of the Securities to the Underwriters
by the Company pursuant to this Agreement, the compliance by the Company and
each of the
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Subsidiaries with the other provisions of this Agreement and the consummation of
the other transactions herein contemplated do not (i) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained, such as may be
required under state securities or blue sky laws and, if the registration
statement filed with respect to the Securities (as amended) is not effective
under the Act as of the time of execution hereof, such as may be required (and
shall be obtained as provided in this Agreement) under the Act, or (ii) conflict
with or result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries or any of their
respective properties are bound, or the charter documents or by-laws of the
Company or any of its subsidiaries, or any law or statute or any judgment,
decree, order, rule or regulation of any court or other governmental authority
or any arbitrator applicable to the Company or any of its subsidiaries.
(p) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus, neither the Company nor any
of the Subsidiaries has sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding and there has not been any Material
Adverse Effect, or any development involving a prospective Material Adverse
Effect, except in each case as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(q) None of the Company and the Subsidiaries has, directly or indirectly,
(i) taken 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 Securities or (ii) since the filing of the Registration
Statement (A) sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company (except for the sale of Securities under this Agreement).
(r) The Company has not distributed and, prior to the later of (i) the Firm
Closing Date and (ii) the completion of the distribution of the Securities, will
not distribute any offering material in connection with the offering and sale of
the Securities other than the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or other materials, if any permitted by the Act.
(s) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), (1) the Company and the
Subsidiaries have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction
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not in the ordinary course of business; (2) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any dividend
or distribution of any kind on its capital stock; and (3) there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and the Subsidiaries, except in each case as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(t) The Company and each of the Subsidiaries have good and marketable title
in fee simple to all items of real property and marketable title to all personal
property owned by each of them and/or described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), in each
case free and clear of any security interests, liens, encumbrances, equities,
claims and other defects, except such as do not materially and adversely affect
the value of such property and do not interfere with the use made or proposed to
be made of such property by the Company or such Subsidiary, and any real or
personal property and buildings held under lease by the Company or any of the
Subsidiaries are held under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or such
Subsidiary, in each case except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(u) No labor dispute with the employees of the Company or any of the
Subsidiaries exists or is threatened or imminent that could result in a Material
Adverse Effect, except as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(v) The Company and the Subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, patent applications, trademarks, service
marks, trade names, licenses, copyrights and proprietary or other confidential
information currently employed by them in connection with their respective
businesses, and neither the Company nor any Subsidiary has received any notice
of infringement of or conflict with asserted rights of any third party with
respect to any of the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(w) The Company and each of the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any Subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any Subsidiary has
any 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
would not result in a Material Adverse Effect, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
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(x) No Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such
Subsidiary's capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary's property or assets to the Company or any other Subsidiary of the
Company, except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(y) The Company and each of the Subsidiaries possess all licenses,
certificates, authorizations, consents, orders, approvals and permits issued by,
and has made all declarations and filings with, all appropriate federal, state,
local or foreign regulatory authorities necessary to own or lease and to operate
its respective properties and to conduct their respective businesses as now or
proposed to be conducted as set forth in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), and neither the
Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any such license, certificate, authorization,
consent, order, approval or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(z) Neither the Company nor any of the Subsidiaries will conduct its
operations in a manner that will subject it to registration as an investment
company under the Investment Company Act of 1940, as amended, and this
transaction will not cause the Company to become an investment company subject
to registration under such Act.
(aa) Each of the Company and the Subsidiaries has filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and has paid all taxes required to be
paid by it and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith and
for which the company or such Subsidiary has provided adequate reserves, or as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(bb) Neither the Company nor any of the Subsidiaries is in violation of any
federal or state law or regulation relating to public or occupational safety and
health or to pollution, the environment or the storage, handling or
transportation of hazardous or toxic materials ("Environmental Law") and
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the Company and each Subsidiary have received all permits, licenses or other
approvals required of them under applicable Environmental Law in connection with
the ownership, operation or use of their respective businesses, property and
assets, and the Company and each Subsidiary are in compliance with all terms and
conditions of any such permit, license or approval, except any such violation of
law or regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals which would not, singly or in the aggregate, result in a
Material Adverse Effect, and except as described in or contemplated by the
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Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus), none of the Company
or the Subsidiaries is subject to any liability, absolute or contingent, under
any Environmental Law except for any such liability which would not,
individually or in the aggregate, have a Material Adverse Effect.
(cc) Each certificate signed by any officer of the Company or any of the
Subsidiaries and delivered to the Representatives or counsel for the
Underwriters shall be deemed to be a joint and several representation and
warranty by the Company and each of the Subsidiaries to each Underwriter as to
the matters covered thereby.
(dd) Except for the shares of capital stock of each of the Subsidiaries
owned by the Company, neither the Company nor any Subsidiary owns any shares of
stock or any other equity securities or long-term debt securities or has any
equity interest in any firm, partnership, association or other entity, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(ee) There are no holders of securities of the Company, other than the
Selling Securityholder, who, by reason of the filing of the Registration
Statement, have the right (and have not waived such right) to request the
Company to register under the Act, or to include in the Registration Statement,
securities held by them.
(ff) The Company and each of the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (3) access to assets is
permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(gg) No breach or default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries or any of their respective properties is bound, except for any
such breach, default or event which would not, individually or in the aggregate,
have a Material Adverse Effect.
(hh) None of the Company or the Subsidiaries has any liability for any
prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other plan
which is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to which the Company or any of the Subsidiaries makes or
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ever has made a contribution and in which any employee of the Company or any of
the Subsidiaries is or has ever been a participant. With respect to such
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plans, the Company and each Subsidiary is in compliance in all material
respects with all applicable provisions of ERISA.
(ii) None of the Company or any of the Subsidiaries nor any director,
officer, agent, employee or other person associated with or acting on behalf of
the Company or any of the Subsidiaries has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic governmental official or employee from corporate funds; violated or
is in violation of any provision of the Foreign Corrupt Practices Act of 1977;
or made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(jj) As of the date hereof, the Acquisition has closed in escrow and on
the Firm Closing Date the Acquisition shall have been finally consummated. On
and as of the Firm Closing Date, the merger contemplated by the Acquisition
Agreement shall have become effective pursuant to the laws of Minnesota and
Delaware and the Company shall be the sole record and beneficial owner of the
equity of the surviving corporation of the merger, as contemplated by the
Acquisition Agreement. Other than the payment of the cash consideration to be
paid in the Acquisition, all conditions precedent to the Acquisition have been
satisfied (and not waived) and the Acquisition Agreement has not been modified
or amended in any way and is identical in all respects to the Acquisition
Agreement delivered to the Representatives on or prior to the date hereof. The
Acquisition Agreement will, on the Firm Closing Date, conform in all material
respects to the description thereof contained in the Prospectus.
(kk) The Company has good and marketable title to all of the securities of
the surviving corporation of the merger contemplated by the Acquisition
Agreement, in each case free and clear of any security interests, liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such securities and do not
interfere with the use made or proposed to be made of such securities by the
Company, except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(ll) No relationship, direct or indirect, exists and no transaction has
occurred between or among the Company and/or any of its Subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or suppliers of the
Company and/or any of its Subsidiaries on the other hand, which is required to
be described in the Prospectus and is not so described.
3. Representations and Warranties of the Selling Securityholder.
------------------------------------------------------------
The Selling Securityholder represents and warrants to, and agrees with,
each of the several Underwriters that:
(a) The Selling Securityholder has full power to enter into this Agreement
and to sell, assign, transfer and deliver to the Underwriters the Selling
Securityholder Securities hereunder in accordance with the terms of this
Agreement; and this Agreement has been duly executed and delivered by the
Selling Securityholder, and is the valid and binding agreement of
11
the Selling Securityholder, enforceable against the Selling Securityholder
in accordance with its terms.
(b) The Selling Securityholder has duly executed and delivered a power of
attorney and custody agreement (the "Power-of-Attorney" and the "Custody
Agreement", respectively), each in the form heretofore delivered to the
Representatives, appointing _________________________ as the Selling
Securityholder's attorney-in-fact (the "Attorney-in-Fact") with authority to
execute, deliver and perform this Agreement on behalf of the Selling
Securityholder and appointing _________________________, as custodian thereunder
(the "Custodian"). Certificates in negotiable form, endorsed in blank or
accompanied by blank stock powers duly executed, with signatures appropriately
guaranteed, representing the Selling Securityholder Securities hereunder have
been deposited with the Custodian pursuant to the Custody Agreement for the
purpose of delivery pursuant to this Agreement. The Selling Securityholder has
full power to enter into the Custody Agreement and the Power-of-Attorney and to
perform its obligations under the Custody Agreement. Assuming due authorization,
execution and delivery by the Custodian, the Custody Agreement and the Power-of-
Attorney are the legal, valid, binding and enforceable instruments of the
Selling Securityholder, enforceable against the Selling Securityholder in
accordance with their respective terms. The Selling Securityholder agrees that
each of the Securities represented by the certificates on deposit with the
Custodian is subject to the interests of the Underwriters hereunder, that the
arrangements made for such custody, the appointment of the Attorney-in-Fact and
the right, power and authority of the Attorney-in-Fact to execute and deliver
this Agreement, to agree on the price at which the Securities (including the
Selling Securityholder's Securities) are to be sold to the Underwriters, and to
carry out the terms of this Agreement, are to that extent irrevocable and that
the obligations of the Selling Securityholder hereunder shall not be terminated,
except as provided in this Agreement or the Custody Agreement, by any act of the
Selling Securityholder, by operation of law or otherwise, whether in the case of
any individual Selling Securityholder by the death or incapacity of such Selling
Securityholder, in the case of a trust or estate by the death of the trustee or
trustees or the executor or executors or the termination of such trust or
estate, or in the case of a corporate or partnership Selling Securityholder by
its liquidation or dissolution or by the occurrence of any other event. If any
individual Selling Securityholder, trustee or executor should die or become
incapacitated or any such trust should be terminated, or if any corporate or
partnership Selling Securityholder shall liquidate or dissolve, or if any other
event should occur, before the delivery of such Securities hereunder, the
certificates for such Securities deposited with the Custodian shall be delivered
by the Custodian in accordance with the respective terms and conditions of this
Agreement as if such death, incapacity, termination, liquidation or dissolution
or other event had not occurred, regardless of whether or not the Custodian or
the Attorney-in-Fact shall have received notice thereof.
(c) The Selling Securityholder is the lawful owner of the Selling
Securityholder Securities hereunder and upon sale and delivery of, and payment
for, such Securities, as provided herein, the Selling Securityholder will convey
good and marketable title to such Securities, free and clear of any security
interests, liens, encumbrances, equities, claims or other defects.
12
(d) The Selling Securityholder has not, directly or indirectly, (i) taken
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 the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company (except for
the sale of Selling Securityholder Securities by the Selling Securityholder
under this Agreement).
(e) To the extent that any statements or omissions are made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by the Selling Securityholder specifically
for use therein, such Preliminary Prospectus did, and the Registration Statement
and the Prospectus and any amendments or supplements thereto, when they become
effective or are filed with the Commission, as the case may be, will (i) conform
in all material respects to the requirements of the Act and the respective rules
and regulations of the Commission thereunder and (ii) not include 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 are made, not misleading. The Selling
Securityholder has reviewed the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and the Registration
Statement, and the information regarding the Selling Securityholder set forth
therein under the caption "Selling Securityholder" is complete and accurate.
(f) The sale by the Selling Securityholder of Securities pursuant hereto
is not prompted by any adverse information concerning the Company that is not
set forth in the Registration Statement or the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(g) The sale of the Securities to the Underwriters by the Selling
Securityholder pursuant to this Agreement, the compliance by the Selling
Securityholder with the other provisions of this Agreement, the Custody
Agreement and the consummation of the other transactions herein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the registration statement filed with respect to the Securities (as amended)
is not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the Act,
or (ii) conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Selling
Securityholder is a party or by which the Selling Securityholder or any of the
Selling Securityholder's properties are bound, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental authority
or any arbitrator applicable to the Selling Securityholder.
13
(h) The Selling Securityholder has not distributed and, prior to the later
of (i) the Firm Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any permitted by the Act.
(i) In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Internal Revenue Code of 1986, as amended,
with respect to the transactions herein contemplated, the Selling Securityholder
agrees to deliver to the Representatives prior to or on the Firm Closing Date a
properly completed and executed United States Treasury Department Form W-8 or
W-9 (or other applicable form of statement specified by Treasury Department
regulations in lieu thereof).
4. Purchase, Sale and Delivery of the Securities. (a) On the basis of
---------------------------------------------
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, (i) the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, at a purchase
price of $________ per share, the number of Firm Securities set forth opposite
the name of such Underwriter in Schedule 1 hereto and (ii) the Selling
Securityholder agrees to sell to each of the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from the Selling
Securityholder, at a purchase price of $________ per share, the number of
Selling Securityholder Securities set forth opposite the name of such
Underwriter in Schedule 1 hereto. One or more certificates in definitive form
for the Firm Securities and Selling Securityholder Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company and Selling Securityholder, respectively, at
least 48 hours prior to the Firm Closing Date, shall be delivered by or on
behalf of the Company and Selling Securityholder, respectively, to the
Representatives for the respective accounts of the Underwriters, against payment
by or on behalf of the Underwriters of the purchase price therefor by wire
transfer in same-day funds (the "Wired Funds") to the accounts of the Company
-----------
and the Selling Securityholder, respectively. Such delivery of and payment for
the Firm Securities and Selling Securityholder Securities shall be made at the
offices of Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000 at 9:30 A.M., New York time, on __________, 1998, or at such other place,
time or date as the Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 10 hereof, such time and date
of delivery against payment being herein referred to as the "Firm Closing Date".
-----------------
The Company will make such certificate or certificates for the Firm Securities,
and the Selling Securityholder will (or will cause the Custodian to) make such
certificate or certificates for the Selling Securityholder Securities, available
for checking and packaging by the Representatives at the offices in New York,
New York of the Company's transfer agent or registrar or of Prudential
Securities Incorporated at least 24 hours prior to the Firm Closing Date.
14
(b) For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Securities as contemplated by the Prospectus,
the Company hereby grants to the several Underwriters an option to purchase,
severally and not jointly, the Option Securities. The purchase price to be paid
for any Option Securities shall be the same price per share as the price per
share for the Firm Securities set forth above in paragraph (a) of this Section
4. The option granted hereby may be exercised as to all or any part of the
Option Securities from time to time within thirty days after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading). The Underwriters shall not be under any obligation to purchase any of
the Option Securities prior to the exercise of such option. The Representatives
may from time to time exercise the option granted hereby by giving notice in
writing or by telephone (confirmed in writing) to the Company setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment for
such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and Company
may agree upon or as the Representatives may determine pursuant to Section 10
hereof, is herein called the "Option Closing Date" with respect to such Option
-------------------
Securities. Upon exercise of the option as provided herein, the Company shall
become obligated to sell to each of the several Underwriters, and, subject to
the terms and conditions herein set forth, each of the Underwriters (severally
and not jointly) shall become obligated to purchase from the Company, the same
percentage of the total number of the Option Securities as to which the several
Underwriters are then exercising the option as such Underwriter is obligated to
purchase of the aggregate number of Firm Securities, as adjusted by the
Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 4, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company and the Selling Securityholder hereby acknowledge that the
wire transfer by or on behalf of the Underwriters of the purchase price for any
Shares does not constitute closing of a purchase and sale of the Shares. Only
execution and delivery of a receipt for Shares by the Underwriters indicates
completion of the closing of a purchase of the Shares from the Company or the
Selling Securityholder. Furthermore, in the event that the Underwriters wire
funds to the Company or the Selling Securityholder prior to the completion of
the closing of a purchase of Shares, each of the Company and the Selling
Securityholder hereby acknowledges that until the Underwriters execute and
deliver a receipt for the Shares, by facsimile or otherwise, the Company and the
Selling Securityholder will not be entitled to the Wired Funds transferred to
their respective accounts and shall return such Wired Funds to the Underwriters
as soon as practicable (by wire transfer of same-day funds) upon demand. In
15
the event that the closing of a purchase of Shares is not completed and such
Wired Funds are not returned by the Company or the Selling Securityholder to the
Underwriters on the same day the Wired Funds were received by the Company or the
Selling Securityholder, respectively, the Company and the Selling Securityholder
agree to pay to the Underwriters in respect of each day such Wired Funds are not
returned by it, in same-day funds, interest on the amount of such Wired Funds in
an amount representing the Underwriters' cost of financing as reasonably
determined by Prudential Securities Incorporated.
(d) It is understood that either of you, individually and not as one of the
Representatives, may (but shall not be obligated to) make payment on behalf of
any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations hereunder.
5. Offering by the Underwriters. Upon your authorization of the release
----------------------------
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
6. Covenants of the Company and the Selling Securityholder. Each of the
-------------------------------------------------------
Company and the Selling Securityholder (as to itself only) covenants and agrees
with each of the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required,
the Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Act. During any time when a prospectus relating to the Securities is required
to be delivered under the Act, the Company (i) will comply with all requirements
imposed upon it by the Act and the rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions hereof and of the
Prospectus, as then amended or supplemented, and (ii) will not file with the
Commission the prospectus, Term Sheet or the amendment referred to in the second
sentence of Section 2(a) hereof, any amendment or supplement to such Prospectus,
Term Sheet or any amendment to the Registration Statement or any Rule 462(b)
Registration Statement of which the Representatives previously have been advised
and furnished with a copy for a reasonable period of time prior to the proposed
filing and as to which filing the Representatives shall not have given their
consent. The Company will prepare and file with the Commission, in accordance
with the rules and regulations of the Commission, promptly upon request by the
Representatives or counsel for the Underwriters, any amendments to the
Registration Statement or amendments or supplements to the Prospectus that may
be necessary or advisable in connection with the distribution of the Securities
by the several Underwriters, and will use its best efforts to cause any such
amendment to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time when the
Registration
16
Statement or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and will
provide evidence satisfactory to the Representatives of each such filing or
effectiveness.
(b) The Company will advise the Representatives, promptly after receiving
notice or obtaining knowledge thereof, of (i) the issuance by the Commission of
any stop order suspending the effectiveness of the Original Registration
Statement or any Rule 462(b) Registration Statement or any amendment thereto or
any order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, (ii) the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, (iii)
the institution, threatening or contemplation of any proceeding for any such
purpose or (iv) any request made by the Commission for amending the Original
Registration Statement or any Rule 462(b) Registration Statement, for amending
or supplementing the Prospectus or for additional information. The Company will
use its best efforts to prevent the issuance of any such stop order and, if any
such stop order is issued, to obtain the withdrawal thereof as promptly as
possible.
(c) The Company will arrange for the qualification of the Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
the Representatives may designate and will continue such qualifications in
effect for as long as may be necessary to complete the distribution of the
Securities, provided, however, that in connection therewith the Company shall
-----------------
not be required to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the Act
or (ii) the Option Closing Date, 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 a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the rules or
regulations of the Commission thereunder, the Company will promptly notify the
Representatives thereof and, subject to Section 6(a) hereof, will prepare and
file with the Commission, at the Company's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the Representatives
and to counsel for the Underwriters a signed copy and a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto) and (iii) so long as a
prospectus relating to the Securities is required to be delivered under the Act,
as many copies of each
17
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
as the Representatives may reasonably request; without limiting the application
of clause (iii) of this sentence, the Company, not later than (A) 6:00 P.M., New
York City time, on the date of determination of the public offering price, if
such determination occurred at or prior to 10:00 A.M., New York City time, on
such date or (B) 2:00 P.M., New York City time, on the business day following
the date of determination of the public offering price, if such determination
occurred after 10:00 A.M., New York City time, on such date, will deliver to the
Underwriters, without charge, as many copies of the Prospectus and any amendment
or supplement thereto as the Representatives may reasonably request for purposes
of confirming orders that are expected to settle on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally available to
its securityholders and to the Representatives a consolidated earnings statement
of the Company and its subsidiaries that satisfies the provisions of Section
11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the Securities
as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of any option to purchase or other sale or
disposition) of any shares of Common Stock or any securities convertible into,
or exchangeable or exercisable for, shares of Common Stock for a period of 180
days after the date hereof, except pursuant to this Agreement and except for
issuances pursuant to the exercise of employee stock options outstanding on the
date hereof or pursuant to the terms of convertible securities (including,
without limitation, warrants) of the Company outstanding on the date hereof.
(i) The Company will not, directly or indirectly, (i) take 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
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company (except for the sale of Securities under this Agreement).
(j) The Company will obtain the agreements described in Section 8(f) hereof
prior to the Firm Closing Date.
(k) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in your opinion the market price of the Common Stock has been
or is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
18
Prospectus), the Company will, after notice from you advising the Company to the
effect set forth above, forthwith prepare, consult with you concerning the
substance of, and disseminate a press release or other public statement,
reasonably satisfactory to you, responding to or commenting on such rumor,
publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company shall both
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) and pay the applicable fees in accordance with Rule 111 promulgated
under the Act by the earlier of (i) 10:00 P.M. Eastern time on the date of this
Agreement and (ii) the time confirmations are sent or given, as specified by
Rule 462(b)(2).
(m) The Company will cause the Securities to be duly included for quotation
on the Nasdaq National Market prior to the Firm Closing Date. The Company will
ensure that the Securities remain included for quotation on the Nasdaq National
Market following the Firm Closing Date.
(n) Prior to the Option Closing Date, the Company will furnish to the
Representatives, as soon as they have been prepared, a copy of any unaudited
interim, financial statements of the Company for any period subsequent to the
period covered by the most recent financial statements appearing in the
Prospectus.
(o) During the period of three years after the last date of original
issuance of the Securities, the Company will not be or become an "investment
company" under the Investment Company Act.
(p) The Selling Securityholder will not, directly or indirectly, without
the prior written consent of Prudential Securities Incorporated, offer, sell,
offer to sell, contract to sell, pledge, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale, contract
of sale, pledge, grant of any option to purchase or other sale or disposition)
of any shares of Common Stock legally or beneficially owned by the Selling
Securityholder or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock for a period of 180 days after the date
hereof.
(q) The Selling Securityholder will not, directly or indirectly, (i) 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 the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company (except for the sale of Selling Securityholder Securities by the
Selling Securityholder under this Agreement).
7. Expenses. The Company and the Subsidiaries agree, jointly and
--------
severally, to pay all costs and expenses incident to the performance of their
obligations under this Agreement, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated pursuant to Section 12
hereof, including all costs and expenses
19
incident to (i) the printing or other production of documents with respect to
the transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto, any
Rule 462(b) Registration Statement, any Preliminary Prospectus and the
Prospectus and any amendment or supplement thereto, this Agreement and any blue
sky memoranda, (ii) all arrangements relating to the delivery to the
Underwriters of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Company, (iv) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Securities, including transfer
agent's and registrar's fees, (v) the qualification of the Securities under
state securities and blue sky laws, including filing fees and fees and
disbursements of counsel for the Underwriters relating thereto, (vi) the filing
fees of the Commission and the National Association of Securities Dealers, Inc.
relating to the Securities, (vii) any quotation of the Securities on the Nasdaq
National Market, (viii) any meetings with prospective investors in the
Securities (other than as shall have been specifically approved by the
Representatives to be paid for by the Underwriters) and (ix) advertising
relating to the offering of the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the
Underwriters). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 8 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 12 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including counsel fees and
disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. The Company shall not in any event
be liable to any of the Underwriters for the loss of anticipated profits from
the transactions covered by this Agreement.
8. Conditions of the Underwriters' Obligations. The obligations of the
-------------------------------------------
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
respective representations and warranties of the Company and the Selling
Securityholder contained herein as of the date hereof and as of the Firm Closing
Date, as if made on and as of the Firm Closing Date, to the accuracy of the
statements of the Company's officers made pursuant to the provisions hereof, to
the performance by the Company and the Selling Securityholder of their
respective covenants and agreements hereunder and to the following additional
conditions:
(a) If the Original Registration Statement or any amendment thereto filed
prior to the Firm Closing Date has not been declared effective as of the time of
execution hereof, the Original Registration Statement or such amendment and, if
the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have been declared effective not later than the earlier of (i)
11:00 A.M., New York time, on the date on which the amendment to the
registration statement originally filed with respect to the Securities or to the
Registration Statement, as the case may be, containing information regarding the
initial public offering price of the Securities has been filed with the
Commission and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original
20
Registration Statement, or such later time and date as shall have been consented
to by the Representatives; if required, the Prospectus or any Term Sheet that
constitutes a part thereof and any amendment or supplement thereto shall have
been filed with the Commission in the manner and within the time period required
by Rules 434 and 424(b) under the Act; no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto shall have
been issued, and no proceedings for that purpose shall have been instituted or
threatened or, to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission; and the Company shall have complied with any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date of Xxxxxx, X'Xxxxxxx, Xx Xxxxxx & Xxxxxx, LLP, counsel for the
Company and the Subsidiaries, to the effect that:
(i) the Company and each of the Subsidiaries have been duly organized
and are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation and are duly qualified to
transact business as foreign corporations and are in good standing under
the laws of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses
requires such qualification, except where the failure to be so qualified
would not, individually or in the aggregate, have a Material Adverse
Effect;
(ii) the Company and each of the Subsidiaries have corporate power to
own or lease their respective properties and conduct their respective
businesses as described in the Registration Statement and the Prospectus,
and the Company and each of the Subsidiaries have corporate power to enter
into this Agreement and to carry out all the terms and provisions hereof to
be carried out by it;
(iii) the issued shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and
nonassessable, were not issued in violation of any preemptive or similar
rights and are owned beneficially by the Company free and clear of any
perfected security interest or, to the best knowledge of such counsel, any
other security interests, liens, encumbrances, equities, claims or
restrictions on transferability (other than those imposed by the Act and
the securities or "Blue Sky" laws of certain jurisdictions) or voting;
other than the Subsidiaries, there is no other subsidiary of the Company;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable, have been issued in compliance with
all applicable federal and state securities laws and were not issued in
violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities; no sales of securities have been made
by the Company in violation of the provisions of the Act, the Exchange Act,
or state securities laws; the
21
Firm Securities have been duly authorized by all necessary corporate action
of the Company and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued, fully paid
and nonassessable; the Securities have been duly included for trading on
the Nasdaq National Market; no holders of outstanding shares of capital
stock of the Company are entitled as such to any preemptive or other rights
to subscribe for any of the Securities; and no holders of securities of the
Company are entitled to have such securities registered under the
Registration Statement;
(v) the statements set forth under the heading "Description of Capital
Stock" in the Prospectus, insofar as such statements purport to summarize
certain provisions of the capital stock of the Company, provide a fair
summary of such provisions; and the statements set forth under the headings
"Risk Factors--Regulation," "Business--Regulation," "Business--Legal
Proceedings" and "Description of Capital Stock" in the Prospectus, insofar
as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, provide a fair summary of such legal
matters, documents and proceedings;
(vi) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and the
Subsidiaries. This Agreement has been duly executed and delivered by each
of the Company and the Subsidiaries;
(vii) (A) no legal or governmental proceedings are pending to which
the Company or any of the Subsidiaries is a party or to which the property
of the Company or any of the Subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are not
described therein, and, to the best knowledge of such counsel, no such
proceedings have been threatened against the Company or any of the
Subsidiaries or with respect to any of their respective properties and (B)
no contract or other document is required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that is not described therein or filed as
required;
(viii) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by
the Company and the Subsidiaries with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except
such as have been obtained and such as may be required under state
securities or blue sky laws, or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, lease, or other agreement or
instrument, known to such counsel, to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries
or any of their respective properties are bound, or the charter documents
or by-laws of the Company or any of the Subsidiaries, or any statute or any
judgment,
22
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator known to such counsel and applicable to the
Company or the Subsidiaries or any of their respective properties or
assets;
(ix) the Registration Statement is effective under the Act; any
required filing of the Prospectus, or any Term Sheet that constitutes a
part thereof, pursuant to Rules 434 and 424(b) has been made in the manner
and within the time period required by Rules 434 and 424(b); and no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued, and no proceedings for that purpose have
been instituted or threatened or, to the best knowledge of such counsel,
are contemplated by the Commission;
(x) the Registration Statement originally filed with respect to the
Securities and each amendment thereto, any Rule 462(b) Registration
Statement and the Prospectus (in each case, other than the financial
statements and other financial information contained therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the rules and
regulations of the Commission thereunder;
(xi) if the Company elects to rely on Rule 434, the Prospectus is not
"materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time of its
effectiveness or an effective post-effective amendment thereto (including
such information that is permitted to be omitted pursuant to Rule 430A);
(xii) neither the Company nor any of the Subsidiaries is an
"investment company" or "promoter" or "principal underwriter" for an
"investment company" as such terms are defined in the Investment Company
Act;
(xiii) the merger contemplated by the Acquisition Agreement shall
have become effective pursuant to the laws of Minnesota and Delaware, and
the Company is the sole record and beneficial owner of the shares of the
equity of the surviving corporation of the merger;
(xiv) except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding (A) securities or obligations of the Company or any of the
Subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such Subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any Subsidiary any such
capital stock or any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any Subsidiary to issue
any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options; and
(xv) to the knowledge of such counsel, each of the Company and the
Subsidiaries hold all material licenses, certificates and permits from
governmental
23
authorities necessary for the conduct of its business as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
Such counsel shall also state that they have no reason to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits 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.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of the State of ________, to the extent satisfactory in form
and scope to counsel for the Underwriters, upon the opinion of [insert name of
---------------
local counsel], addressed to the Underwriters and dated the Firm Closing Date, a
--------------
copy of which will be attached to the opinion of counsel for the Company. The
foregoing opinion shall also state that the Underwriters are justified in
relying upon such opinion of [insert name of local counsel], copies of such
------------------------------
opinion shall be delivered to the Representatives and counsel for the
Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Cadwalader, Xxxxxxxxxx & Xxxx, counsel for the Underwriters,
with respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters. In rendering such opinion, such
counsel may rely as to all matters of law upon the opinion of Xxxxxx, X'Xxxxxxx,
XxXxxxxx & Xxxxxx, LLP referred to in paragraph (b) above.
(d) The Representatives shall have received from KPMG Peat Marwick, LLP a
letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent public accountants with respect to the
Company and its consolidated subsidiaries within the meaning of the Act and
the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial statements
and schedules and pro forma financial statements examined by them and
included in the Registration Statement and the Prospectus comply in form in
all material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and regulations;
24
(iii) on the basis of their limited review in accordance with
standards established by the American Institute of Certified Public
Accountants of any interim unaudited consolidated condensed financial
statements of the Company and its consolidated subsidiaries as indicated in
their report included in the Registration Statement and the Prospectus,
carrying out certain specified procedures (which do not constitute an
examination made in accordance with generally accepted auditing standards)
that would not necessarily reveal matters of significance with respect to
the comments set forth in this paragraph (iii), a reading of the minute
books of the shareholders, the board of directors and any committees
thereof of the Company and each of its consolidated subsidiaries, and
inquiries of certain officials of the Company and its consolidated
subsidiaries who have responsibility for financial and accounting matters,
nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated condensed financial statements of the
Company and its consolidated subsidiaries included in the Registration
Statement and the Prospectus do not comply in form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited consolidated
financial statements included in the Registration Statement and the
Prospectus;
(B) at a specific date not more than five business days prior to the
date of such letter, there were any changes in the capital stock or
long-term debt of the Company and its consolidated subsidiaries or any
decreases in net current assets or stockholders' equity of the Company
and its consolidated subsidiaries, in each case compared with amounts
shown on the March 31, 1998 unaudited consolidated balance sheet
included in the Registration Statement and the Prospectus, or for the
period from April 1, 1998 to such specified date there were any
decreases (or increases in any negative amounts), as compared with the
period commencing January 1, 1998 and ending on such date which is the
same number of days after January 1, 1998 as the specified date is
after April 1, 1998, in net revenues, loss before income taxes or
total or per share amounts of net loss of the Company and its
consolidated subsidiaries, except in all instances for changes,
decreases or increases set forth in such letter;
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting records
of the Company and its consolidated subsidiaries and are included in the
Registration Statement and the Prospectus under the captions "Prospectus
Summary," "Risk Factors," "Capitalization," "Dilution," "Selected Financial
Data," "Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Management," "Certain Transactions,"
"Principal Stockholders" and "Description of Capital Stock" and in Exhibit
11 to the Registration Statement, and have compared such amounts,
percentages and financial information with such records of the Company and
its consolidated subsidiaries and with information derived from such records
and have found them to be in agreement, excluding any questions of legal
interpretation; and
25
(v) on the basis of a reading of the unaudited pro forma consolidated
condensed financial statements included in the Registration Statement and the
Prospectus, carrying out certain specified procedures that would not necessarily
reveal matters of significance with respect to the comments set forth in this
paragraph (v), inquiries of certain officials of the Company and the
Subsidiaries and ABCC who have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the unaudited pro forma consolidated
condensed financial statements, nothing came to their attention that caused them
to believe that the unaudited pro forma consolidated condensed financial
statements do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of such statements.
In the event that the letters referred to above set forth any such changes,
decreases or increases, it shall be a further condition to the obligations of
the Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(e) The Representatives shall have received a certificate, dated the Firm
Closing Date, of the principal executive officer and the principal financial or
accounting officer of the Company and each of the Subsidiaries to the effect
that:
(i) the representations and warranties of the Company and each of the
Subsidiaries in this Agreement are true and correct as if made on and as of
the Firm Closing Date; the statements of the Company's and the
Subsidiaries' officers made pursuant to any certificate delivered in
accordance with the provisions hereof shall be true and correct in all
material respects as if made on and as of the Firm Closing Date. The
Registration Statement, as amended as of the Firm Closing Date, does not
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading, and
the Prospectus, as amended or supplemented as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
the Company has performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Firm
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto has been issued, and no proceedings for
that purpose have
26
been instituted or threatened or, to the best of the Company's knowledge,
are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the Company
nor any of the Subsidiaries has sustained any material loss or interference
with their respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from
any labor dispute or any legal or governmental proceeding, and there has
not been any material adverse change, or any development involving a
prospective material adverse change which could result in a Material
Adverse Effect, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto).
(f) The Representatives shall have received from each person who is a
director or officer of the Company and each other person or entity who owns
10,000 shares of Common Stock an agreement to the effect that such person will
not, directly or indirectly, without the prior written consent of Prudential
Securities Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or otherwise sell
or dispose (or announce any offer, sale, offer of sale, contract of sale,
pledge, grant of any option to purchase or other sale or disposition) of any
shares of Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock for a period of 180 days after the date
of this Agreement.
(g) On or before the Firm Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
(h) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading on the Nasdaq National Market.
(i) The Representatives shall have received evidence to their satisfaction
that: (i) on or before the Firm Closing Date, the Acquisition shall have been
finally consummated; (ii) on and as of the Firm Closing Date, the merger
contemplated by the Acquisition Agreement shall have become effective pursuant
to the laws of Minnesota and Delaware and the Company shall be the sole record
and beneficial owner of the equity of the surviving corporation of the merger,
as contemplated by the Acquisition Agreement; (iii) other than the payment of
the cash consideration to be paid in the Acquisition, all conditions precedent
to the Acquisition shall have been satisfied (and not waived) and the
Acquisition Agreement shall not have been modified or amended in any way and
shall be identical in all respects to the Acquisition Agreement delivered to the
Representatives on or prior to the date hereof; and (iv) the Acquisition
Agreement shall, on the Firm Closing Date, conform in all material respects to
the description thereof contained in the Prospectus.
(j) The Selling Securityholder shall have furnished to the Representatives
the opinion of ______________________________, counsel for the Selling
Securityholder, dated the Closing Date, to the effect that:
27
(i) The Selling Securityholder has full power to enter into this
Agreement, the Custody Agreement and the Power-of-Attorney and to sell,
transfer and deliver the Securities being sold by the Selling
Securityholder hereunder in the manner provided in this Agreement and to
perform its obligations under the Custody Agreement; this Agreement, the
Custody Agreement and the Power-of-Attorney have been duly executed and
delivered by the Selling Securityholder; the Custody Agreement and the
Power-of-Attorney are the legal, valid, binding and enforceable instruments
of the Selling Securityholder, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(ii) the delivery by the Selling Securityholder to the several
Underwriters of certificates for the Selling Securityholder Securities
against payment therefor as provided herein, will convey good and
marketable title to such Securities to the several Underwriters, free and
clear of all security interests, liens, encumbrances, equities, claims or
other defects; and
(iii) the sale of the Selling Securityholder Securities to the
Underwriters by the Selling Securityholder pursuant to this Agreement, the
compliance by the Selling Securityholder with the other provisions of this
Agreement, the Custody Agreement and the consummation of the other
transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained and such as may be required
under state securities or blue sky laws, or (ii) conflict with or result in
a breach or violation of any of the terms and provisions of, or constitute
a default under any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which the Selling Securityholder is a party or
by which the Selling Securityholder or any of the Selling Securityholder's
properties are bound, or any statute or any judgment, decree, order, rule
or regulation of any court or other governmental authority or any
arbitrator applicable to the Selling Securityholder.
In rendering such opinion, such counsel may rely, as to matters of fact, to
the extent such counsel deems proper, on certificates of Selling Securityholder
and public officials and, as to matters involving the application of laws of any
jurisdiction other than the State of ________ or the United States, to the
extent satisfactory in form and scope to counsel for the Underwriters, upon the
opinion of [insert name of local counsel]. The foregoing opinion shall also
state that the Underwriters are justified in relying upon such opinion of
[insert name of local counsel], and copies of such opinion shall be delivered to
the Representatives and counsel for the Underwriters.
(k) The Representatives shall have received a certificate from the Selling
Securityholder, dated the Closing Date, to the effect that:
28
(i) the representations and warranties of the Selling Securityholder
in this Agreement are true and correct as if made on and as of the Closing
Date;
(ii) to the extent that any statements or omissions are made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by the Selling Securityholder
specifically for use therein, the Registration Statement, as amended as of
the Closing Date, does not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein
not misleading, and the Prospectus, as amended or supplemented as of the
Closing Date, does not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and
(iii) The Selling Securityholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior to the
Closing Date.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company and the Selling Securityholder shall
furnish to the Representatives such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Representatives
and counsel for the Underwriters shall reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
9. Indemnification and Contribution. (a) The Company and the Subsidiaries,
--------------------------------
jointly and severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company or any of the Subsidiaries in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any material
fact contained in (A) the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto or (B) any application or other document, or any amendment or
supplement thereto, executed by the Company or based upon written
information furnished by or on behalf of the
29
Company filed in any jurisdiction in order to qualify the Securities under
the securities or blue sky laws thereof or filed with the Commission or any
securities association or securities exchange (each an "Application"),
-----------
(iii) the omission or alleged omission to state in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or
(iv) any untrue statement or alleged untrue statement of any material
fact contained in any audio or visual materials used in connection with the
marketing of the Securities, including without limitation, slides, videos,
films, tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other out-of-pocket expenses (including, without
limitation, expert witness fees, charges or expenses) reasonably incurred by
such Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
-------- -------
Company or any Subsidiary will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and provided, further, that the Company or any
-------- -------
Subsidiary will not be liable to any Underwriter or any person controlling such
Underwriter with respect to any such untrue statement or omission made in any
Preliminary Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Securities from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Act, unless such failure to deliver the Prospectus (as amended or supplemented)
was a result of noncompliance by the Company or any Subsidiary with Section 6(d)
and (e) of this Agreement. This indemnity agreement will be in addition to any
liability which the Company or any of the Subsidiaries may otherwise have. The
Company and the Subsidiaries will not, without the prior written consent of the
Underwriter or Underwriters purchasing, in the aggregate, more than fifty
percent (50%) of the Securities, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not any
such Underwriter or any person who controls any such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act is a party to
such claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of all of the Underwriters and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
30
(b) The Selling Securityholder agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, each Underwriter and each person who controls the Company or any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company, any such director, officer, such Underwriter or any such controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Selling Securityholder in Section 3 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any material
fact contained in (A) the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or (B) any Application executed by the Selling Securityholder or
based upon written information furnished by or on behalf of the Selling
Securityholder, or
(iii) the omission or the alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, or any
Application a material fact required to be stated therein or necessary to
make the statements therein not misleading,
and will reimburse, as incurred, the Company, any such director, officer, such
Underwriter or any such controlling person for any legal or other out-of-pocket
expenses (including, without limitation, expert witness fees, charges or
expenses) reasonably incurred by the Company, such director, officer, such
Underwriter or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by the Selling Securityholder for
use therein; provided, however, that the Selling Securityholder, in the case of
-------- -------
clauses (ii) and (iii), will not be liable to any Underwriter or any person
controlling such Underwriter with respect to any such untrue statement or
omission made in any Preliminary Prospectus that is corrected in the Prospectus
(or any amendment or supplement thereto) if the person asserting any such loss,
claim, damage or liability purchased Securities from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented) at or
prior to the written confirmation of the sale of such Securities to such person
in any case where such delivery of the Prospectus (as amended or supplemented)
is required by the Act; and, subject to the limitation set forth immediately
preceding this clause. This indemnity agreement will be in addition to any
liability which the Selling Securityholder may otherwise have. The Selling
Securityholder will not, without the prior written consent of the Underwriter or
Underwriters purchasing, in the aggregate, more than fifty percent (50%) of the
Securities, settle or comprise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
31
indemnification may be sought hereunder (whether or not any such Underwriter or
any person who controls any such Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act is a party to such claim, action, suit
or proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding. The
liability of the Selling Securityholder under this Section 9(b) shall not exceed
an amount equal to the initial public offering price of the Selling
Securityholder Securities.
(c) Each Underwriter, severally and not jointly, will indemnify and hold
harmless each of the Company, the Subsidiaries, their directors, officers who
signed the Registration Statement, each person, if any, who controls the Company
or any of the Subsidiaries within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and the Selling Securityholder against any
losses, claims, damages or liabilities to which the Company, any of the
Subsidiaries, any such director, officer or controlling person or the Selling
Securityholder may become subject under the Act, Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any Application or (ii) the omission or the
alleged omission to state therein a material fact required to be stated in the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or any Application or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein: and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by the Company, any of
the Subsidiaries, any such director, officer or controlling person or the
Selling Securityholder in connection with investigating or defending any such
loss, claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(d) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
-------- -------
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the
32
indemnifying party, the indemnifying party shall not have the right to direct
the defense of such action on behalf of such indemnified party or parties and
such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 9 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
9, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(e) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 9 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Securities or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Subsidiaries and the Selling
Securityholder on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total proceeds from the offering (before
deducting expenses) received by the Company, the Subsidiaries and the Selling
Securityholder bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault of the parties 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 Subsidiaries, the Selling
Securityholder or the Underwriters, the parties' relative intents, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other
33
equitable considerations appropriate in the circumstances. The Company, the
Subsidiaries and the Selling Securityholder and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total discounts, commissions and other compensation received by such
Underwriter under this Agreement, less the aggregate amount of any damages that
such Underwriter has otherwise been required to pay in respect of the same or
any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section II (f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company or the Subsidiaries, each officer of the Company or
the Subsidiaries who signed the Registration Statement and each person, if any,
who controls the Company or any of the Subsidiaries within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act or the Selling
Securityholder, shall have the same rights to contribution as the Company, the
Subsidiaries or the Selling Securityholder.
10. Default of Underwriters. If one or more Underwriters default in their
-----------------------
obligations to purchase Firm Securities, Option Securities or Selling
Securityholder Securities hereunder and the aggregate number of such Securities
that such defaulting Underwriter or Underwriters agreed but failed to purchase
is ten percent or less of the aggregate number of Firm Securities, Option
Securities or Selling Securityholder Securities to be purchased by all of the
Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities, Option
Securities or Selling Securityholder Securities that such defaulting Underwriter
or Underwriters agreed but failed to purchase. If one or more Underwriters so
default with respect to an aggregate number of Securities that is more than ten
percent of the aggregate number of Firm Securities, Option Securities or Selling
Securityholder Securities, as the case may be, to be purchased by all of the
Underwriters at such time hereunder, and if arrangements satisfactory to the
Representatives are not made within 36 hours after such default for the purchase
by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company and the Subsidiaries
other than as provided in Section 11 hereof. In the event of any default by
34
one or more Underwriters as described in this Section 10, the Representatives
shall have the right to postpone the Firm Closing Date or the Option Closing
Date, as the case may be, established as provided in Section 4 hereof for not
more than seven business days in order that any necessary changes may be made in
the arrangements or documents for the purchase and delivery of the Firm
Securities, Option Securities or Selling Securityholder Securities, as the case
may be. As used in this Agreement, the term "Underwriter" includes any person
-----------
substituted for an Underwriter under this Section 10. Nothing herein shall
relieve any defaulting Underwriter from liability for its default.
11. Survival. The respective representations, warranties, agreements,
--------
covenants, indemnities and other statements of the Company and the Subsidiaries,
their officers and the several Underwriters set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement shall remain
in full force and effect, regardless of (i) any investigation made by or on
behalf of the Company and the Subsidiaries, any of their respective officers or
directors, the Selling Securityholder, any Underwriter or any controlling person
referred to in Section 9 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 7 and 9 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
12. Termination. (a) This Agreement may be terminated with respect to the
-----------
Firm Securities, Option Securities or Selling Securityholder Securities in the
sole discretion of the Representatives by notice to the Company given prior to
the Firm Closing Date or the related Option Closing Date, respectively, in the
event that the Company shall have failed, refused or been unable to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder at or prior thereto or, if at or prior to the Firm Closing Date or
such Option Closing Date, respectively,
(i) the Company or any of the Subsidiaries shall have, in the sole
judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute, or any legal or governmental
proceeding, or there shall have been any material adverse change, or any
development involving a prospective material adverse change (including
without limitation a change in management or control of the Company,
Telephone Business Meetings, Inc. or Communication Development
Corporation), in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and the
Subsidiaries, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto);
(ii) trading in the Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities generally
on the New York Stock Exchange, American Stock Exchange or Nasdaq National
Market shall have been suspended or minimum or maximum prices shall have
been established on any such exchange or market system;
35
(iii) a banking moratorium shall have been declared by New York,
Massachusetts or United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or material
adverse change in general economic, political or financial conditions
having an effect on the U.S. financial markets that, in the sole judgment
of the Representatives, makes it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by
the Registration Statement, as amended as of the date hereof; or
(v) The Acquisition Agreement shall have terminated, or in the
reasonable view of the Representatives, the Acquisition will not be finally
consummated on or prior to the Firm Closing Date with no material changes
in form or substance to the Acquisition or Acquisition Agreement from that
described in the Prospectus (exclusive of any amendment or supplement
thereto).
(b) Termination of this Agreement pursuant to this Section 12 shall be
without liability of any party to any other party except as provided in Section
11 hereof.
13. Information Supplied by Underwriters. The statements set forth in the
-------------------------------------
last paragraph on the front cover page and under the heading "Underwriting" in
any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 9 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
14. Notices. All communications hereunder shall be in writing and, if
-------
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group, with a copy to Xxxxxxxxx & Company, Inc., 00000 Xxxxx Xxxxxx
Xxxxxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxx, and a copy to Cadwalader Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxx; and if sent to the Company, shall
be delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to the Company at Vialog Corporation, 00 Xxx Xxxxxxx Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, with a copy
to Xxxxxx, X'Xxxxxxx, XxXxxxxx & Lougee, LLP, 1700 BankBoston Tower, 000 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx; and if sent
to the Selling Securityholder, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Xxxxx X. Xxxxxx,
______________, __________________.
15. Successors. This Agreement shall inure to the benefit of and shall be
----------
binding upon the several Underwriters, the Company, the Subsidiaries and the
Selling Securityholder and their respective successors and legal
representatives, and nothing expressed or mentioned
36
in this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that
(i) the indemnities of the Company, the Subsidiaries and the Selling
Securityholder contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Underwriters contained in Section 9 of this Agreement shall
also be for the benefit of the directors of the Company and the Subsidiaries,
the officers of the Company and the Subsidiaries who have signed the
Registration Statement and any person or persons who control the Company or the
Subsidiaries within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Securities from any Underwriter shall be deemed a
successor because of such purchase.
16. Applicable Law. The validity and interpretation of this Agreement,
--------------
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
17. Consent to Jurisdiction and Service of Process. All judicial
----------------------------------------------
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, the Company and the Selling
Securityholder accept for itself and in connection with its properties,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts and waives any defense of forum non conveniens and irrevocably agrees to
be bound by any judgment rendered thereby in connection with this Agreement.
The Company designates and appoints Xxxxx X. Xxxxxx and/or Xxxxx X. Xxxxxx, and
the Selling Securityholder designates and appoints ________________, and such
other persons as may hereafter be selected by the Company or the Selling
Securityholder irrevocably agreeing in writing to so serve, as their respective
agents to receive on the behalf of each service of all process in any such
proceedings in any such court, such service being hereby acknowledged by the
Company and the Selling Securityholder to be effective and binding service in
every respect. A copy of any such process so served shall be mailed by
registered mail to the Company and/or the Selling Securityholder at the address
provided for such party in Section 14 hereof; provided, however, that, unless
-------- -------
otherwise provided by applicable law, any failure to mail such copy shall not
affect the validity of service of such process. If any agent appointed by the
Company or the Selling Securityholder refuses to accept service, the Company or
the Selling Securityholder, as the case may be, hereby agrees that service of
process sufficient for personal jurisdiction in any action against the Company
and/or the Selling Securityholder in the State of New York may be made by
registered or certified mail, return receipt requested, to the Company and the
Selling Securityholder at the address provided for such party in Section 14
hereof, and each of the Company and the Selling Securityholder hereby
acknowledges that such service shall be effective and binding in every respect
with respect to itself. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of any
37
Underwriter to bring proceedings against the Company and/or the Selling
Securityholder in the courts of any other jurisdiction.
18. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
38
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and each of the
several Underwriters.
Very truly yours,
THE COMPANY AND SUBSIDIARIES:
VIALOG CORPORATION
By ________________________
[Title]
CONFERENCE SOURCE INTERNATIONAL, INC.
By ________________________
[Title]
CALL POINTS, INC.
By ________________________
[Title]
XXXXXXX SQUARE TELECONFERENCING, INC.
By ________________________
[Title]
AMERICAN CONFERENCING COMPANY, INC.
By ________________________
[Title]
39
TELEPHONE BUSINESS MEETINGS, INC.
By ________________________
[Title]
COMMUNICATION DEVELOPMENT CORPORATION
By ________________________
[Title]
ABC ACQUISITION CORPORATION
By ________________________
[Title]
THE SELLING SECURITYHOLDER:
____________________________
Xxxxx X. Xxxxxx
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXX & COMPANY, INC.
By PRUDENTIAL SECURITIES INCORPORATED
By _____________________
Xxxx-Xxxxxx Canfin
Managing Director
For itself and on behalf of the Representatives.
40
SCHEDULE 1
UNDERWRITERS
Number of Firm
Securities to
Underwriter be Purchased
------------------------------------------------------ --------------
Prudential Securities Incorporated....................
Xxxxxxxxx & Company, Inc..............................
[insert names of other Underwriters
------------------------------------------------------
alphabetically by bracket or in other
------------------------------------------------------
order determined by Prudential
------------------------------------------------------
Securities Incorporated -
------------------------------------------------------
Equity Transactions Group]
------------------------------------------------------
Total....................................... ____________
41
