Exhibit 1.2
Shares
___________
Axiom Inc.
Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
July _____, 1997
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
X.X. XXXXXX SECURITIES LTD.
As Lead Managers of the several
International Managers named in Schedule 1,
c/x Xxxxxx Brothers International (Europe)
0 Xxxxxxxxx, 0xx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Dear Sirs:
Axiom Inc., a Delaware corporation (the "Company") and an
indirect wholly-owned subsidiary of Security Services plc, a
corporation organized under the laws of England and Wales
(the "Parent"), proposes to sell__________shares (the "Firm
Stock") of the Company's Common Stock, par value $0.01 per
share (the "Common Stock"), to the several International
Managers named in Schedule 1 hereto (together, the
"International Managers"). In addition, the Company
proposes to grant to the International Managers options to
purchase up to an additional__________shares of the Common
Stock on the terms and for the purposes set forth in Section
2 (the "Option Stock"). The Firm Stock and the Option
Stock, if purchased, are hereinafter collectively called the
"International Stock." This is to confirm the agreement
concerning the purchase of the International Stock from the
Company by the International Managers.
It is understood by all parties that the Company and the
Parent are concurrently entering into an agreement dated the
date hereof (the "U.S. Underwriting Agreement") providing
for the sale by the Company of an aggregate of ____ shares
of the Common Stock (including the over-allotments option
thereunder, the "U.S. Stock") through arrangements with
certain Underwriters in the United States and Canada (the
"U.S. Underwriters"), for whom Xxxxxx Brothers Inc. and X.X.
Xxxxxx Securities Inc. are acting as representatives (the
"Representatives"). Except as used in Sections 2, 3, 4, 10
and 11 herein, and except as the context may otherwise
require, references herein to the
"Stock" shall include all the Common Stock that may be sold
pursuant to either this Agreement or the U.S. Underwriting
Agreement. The International Managers and the U.S.
Underwriters simultaneously are entering into an agreement
among the U.S. and international underwriting syndicates
(the "Agreement Between U.S. Underwriters and International
Managers") which provides for, among other things, the
transfer of the Stock between the two syndicates. Two forms
of prospectus are to be used in connection with the offering
and sale of the Stock contemplated by the foregoing, one
relating to the U.S. Stock and one relating to the
International Stock. The international form of prospectus
will be identical to the U.S. prospectus except for certain
substitute pages as included in the registration statement
and amendments thereto referred to below. References herein
to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the
international and U.S. versions thereof. The U.S.
Underwriters and the International Managers are collectively
referred to herein as the "Underwriters."
1. Representations, Warranties and Agreements of the
Company and the Parent. The Company and the Parent
represent, warrant and agree, severally and jointly, that:
(a) A registration statement on Form S-1 (File No.
333-25439), including all amendments thereto, with respect
to the Stock has (i) been prepared by the Company in
conformity with the requirements of the United States
Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations (the "Rules and Regulations")
of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such
registration statement and of the amendments thereto have
been delivered by the Company to you as the lead managers
(the "Lead Managers") of the U.S. Underwriters. As used in
this Agreement, "Effective Time" means the date and the time
as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date
of the Effective Time; "Preliminary Prospectus" means each
prospectus included in such registration statement, or
amendments thereof, before it became effective under the
Securities Act and any prospectus filed with the Commission
by the Company with the consent of the Lead Managers
pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such registration statement,
as amended, at the Effective Time, including all information
contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 5(a) hereof and deemed to be a part
of the
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registration statement as of the Effective Time pursuant to
paragraph (b) of Rule 430A of the Rules and Regulations; and
"Prospectus" means such final prospectus, as first filed
with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Rules and Regulations. Neither the Commission
nor the securities authority of any jurisdiction has issued
any order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any
Preliminary Prospectus, the Prospectus, the Registration
Statement, or any amendment or supplement thereto, refusing
to permit the effectiveness of the Registration Statement,
or suspending the registration or qualification of the
Stock, nor has any of such authorities instituted or
threatened to institute any proceeding with respect to such
an order.
(b) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will, when they become effective or are
filed with the Commission, as the case may be, conform in all
respects to the requirements of the Securities Act and the Rules
and Regulations and do not and will not, as of the applicable
Effective Date (as to the Registration Statement and any amendment
or supplement thereto) and as of the applicable filing date (as to
the Prospectus and any amendment or supplement thereto) contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation
or warranty is made as to information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and
in conformity with written information furnished to the Company
through the Lead Managers or the Representatives by or on behalf of
any Underwriter specifically for inclusion therein.
(c) The Company and its subsidiary have been duly
incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which
their ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where the
failure to so qualify would not have a material adverse effect on
the general affairs, management, financial position, stockholders'
equity, results of operations, properties, assets, liabilities,
future prospects or business of the Company and its subsidiary,
taken as a whole (herein, a "Material Adverse Effect"), and have
all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged.
The Company has complied in all respects with the applicable
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requirements under Delaware law for changing its corporate name.
To date, the Company's sole subsidiary has not conducted any
material business operations and is not a "significant subsidiary,"
as such term is defined in Rule 405 of the Rules and Regulations.
(d) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the
Prospectus; and except as otherwise set forth in the
Prospectus, are owned directly or indirectly by the Parent,
free and clear of all liens, encumbrances, equities or
claims and there are no preemptive rights or other rights to
subscribe for or to purchase or any restriction upon the
voting or transfer of any Common Stock pursuant to the
Company's articles of incorporation, by-laws or other
governing documents or any agreement or other instrument to
which the Company is a party or by which it may be bound.
(e) The shares of Stock to be issued and sold by the
Company to the International Managers hereunder and under
the U.S. Underwriting Agreement have been duly and validly
authorized and, when issued and delivered against payment
therefor as provided herein and under the U.S. Underwriting
Agreement, will be duly and validly issued, fully paid and
non-assessable and the Stock will conform to the description
thereof contained in the Prospectus; and the issuance of the
Stock is not subject to preemptive or other similar rights
that have not been waived.
(f) Upon payment for and delivery of the Common Stock
pursuant to this Agreement, the International Managers, or
other persons in whose names Common Stock is registered,
will acquire good and valid title to such Common Stock, in
each case free and clear of all liens, encumbrances,
equities, preemptive rights and other claims arising through
the Company.
(g) The Company and the Parent have all requisite corporate
power and authority to execute and deliver this Agreement and to
perform their obligations hereunder. This Agreement has been duly
authorized, executed and delivered by the Company and the Parent.
(h) The execution, delivery and performance of this
Agreement by the Company and the Parent and the consummation of the
transactions contemplated hereby, including but not limited to (i)
the Company's corporate name change from Securicor Communications
Inc. to Axiom Inc., (ii) the disposition of certain divisions and
assets of the CompanyAxiom Inc, and (iii) the merger of Securicor
Telesciences,
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Inc. with and into AxiomSecuricor the Company (collectively,
the "Reorganization")Communications,Inc., (ii) the
disposition of certain divisions and assets of Securicor
Communications, Inc. in connection with such merger, and
(iii) the Company's corporate name change, will not conflict
with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or the
Parent is a party or by which the Company or the Parent is
bound or to which any of the property or assets of the
Company or the Parent is subject, nor will such actions
result in any violation of the provisions of the certificate
of incorporation, by-laws or other organizational documents
of the Company or the Parent or any statute or any order,
rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or the Parent or
any of their properties or assets; and except for the
registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the United States
Securities Exchange Act of 1934, as amended (the "Exchange
Act") and applicable state securities laws in connection
with the purchase and distribution of the U.S. Stock by the
U.S. Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company
and the Parent and the consummation of the transactions
contemplated hereby.
(i) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
file a registration statement under the Securities Act with respect
to any securities of the Company owned or to be owned by such
person or the right (other than rights which have been waived or
satisfied) to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(j) Except as described in the Prospectus, the Company has
not sold or issued any shares of Common Stock during the six-month
period preceding the date of the Prospectus, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants outstanding prior to the commencement of such six-month
period.
(k) Neither the Company nor its subsidiary has sustained,
since the date of the latest audited financial statements included
in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity,
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whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since such date,
there has not been any change in the capital stock or long-term
debt of the Company or its subsidiary or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity, results of operations, properties,
assets, liabilities, future prospects or business of the Company
and its subsidiary, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus.
(l) The financial statements (including the related notes
and supporting schedules) filed as part of the Registration
Statement or included in the Prospectus present fairly the
financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved.
(m) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company, whose report appears in the
Prospectus and who have delivered the initial letter referred to in
Section 8(g) hereof, are independent public accountants as required
by the Securities Act and the Rules and Regulations.
(n) Neither the Company nor its subsidiary owns any real
property. The Company and its subsidiary have good and marketable
title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company and
its subsidiary; and all real and personal property and buildings
held under lease by the Company and its subsidiary are held by them
under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company and its subsidiary.
(o) The Company and its subsidiary carry, or are covered by,
insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of
their properties.
(p) The Company and its subsidiary own or possess adequate
rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and
licenses
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necessary for the conduct of their respective businesses and have
not received any notice that the conduct of their respective
businesses will conflict with, and have not received any notice of
any claim of conflict with, any such rights of others.
(q) There are no legal or governmental proceedings pending
to which the Company is a party or, to the Company's knowledge, of
which any property or assets of the Company is the subject which,
if determined adversely to the Company, might have a Material
Adverse Effect; and to the Company's and the Parent's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(r) There are no contracts or other documents which are
required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the
Registration Statement.
(s) No relationship, direct or indirect, exists between or
among the Company on the one hand, and any director, nominee
for election as a director, officer, stockholder, customer
or supplier of the Company on the other hand, which is
required to be described in the Prospectus which is not so
described.
(t) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company or the Parent, is
imminent which might be expected to have a Material Adverse Effect.
(u) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable
event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company would
have any liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan" or (ii)
Section 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such qualification.
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(v) The Company and its subsidiary have filed all federal,
state and local income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon,
and no tax deficiency has been determined adversely to the Company
or its subsidiary which has had, nor do the Company or the Parent
have any knowledge of any tax deficiency which, if determined
adversely to the Company, might have, a Material Adverse Effect.
(w) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or
granted any securities other than securities issued pursuant to
employee benefit plans, qualified stock or equity option plans or
other employee compensation plans, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business,
(iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(x) The Company (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for
its assets is compared with existing assets at reasonable intervals.
(y) Neither the Company nor its subsidiary (i) is in
violation of its certificate of incorporation or by-laws, (ii) is
in default in any material respect, and no event has occurred
which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its
properties or assets is subject and (iii) is in violation in any
material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any material license,
permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the
conduct of its business.
(z) Neither the Company nor its subsidiary, nor, to the
Company's knowledge, any director, officer, agent, employee or
other person associated with
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or acting on behalf of the Company, has used any corporate funds
for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; has made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or
is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or has made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(aa) Neither the Company nor its subsidiary is an "investment
company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the Commission
thereunder.
(bb) Neither the Company nor any of its officers, directors,
or affiliates (as defined in the Rules and Regulations) has taken
or will take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected
to cause or result in the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the shares of the Stock.
2. Purchase of the International Stock by the International
Managers. On the basis of the representations and warranties
contained in, and subject to the terms and conditions of, this
Agreement, the Company agrees to sell [____________] shares of the
Firm Stock to the several International Managers and each of the
International Managers, severally and not jointly, agrees to
purchase the number of shares of the Firm Stock set opposite that
International Manager's name in Schedule l hereto. Each
International Manager shall be obligated to purchase from the
Company that number of shares of the Firm Stock which represents
the same proportion of the number of shares of the Firm Stock to be
sold by the Company as the number of shares of the Firm Stock set
forth opposite the name of such International Manager in Schedule l
represents of the total number of shares of the Firm Stock to be
purchased by all of the International Managers pursuant to this
Agreement. The respective purchase obligations of the
International Managers with respect to the Firm Stock shall be
rounded among the International Managers to avoid fractional
shares, as the Lead Managers may determine.
In addition, the Company grants to the International Managers an
option to purchase up to [___________] shares of Option Stock. Such
option is granted solely for the purpose of covering
over-allotments in the sale of Firm Stock and is exercisable as
provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally for the account of the International Managers
in proportion to the number of shares of Firm Stock set opposite
the name of such International Managers in Schedule l hereto. The
respective purchase obligations of each International Manager with
respect to the Option
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Stock shall be adjusted by the Lead Managers so that no
International Manager shall be obligated to purchase Option Stock
other than in l00 share amounts. The price of both the Firm Stock
and any Option Stock shall be $__________ per share.
The Company shall not be obligated to deliver any of the Stock
to be delivered on the First Delivery Date or the Second Delivery
Date (as hereinafter defined), as the case may be, except upon
payment for all the Stock to be purchased on such Delivery Date as
provided herein and under the U.S. Underwriting Agreement.
3. Offering of International Stock by the International
Managers. Upon authorization by the Lead Managers of the release
of the Firm Stock, the several International Managers propose to
offer the Firm Stock for sale upon the terms and conditions set
forth in the Prospectus.
It is understood that [__________] shares of the Firm Stock will
initially be reserved by the several International Managers and
U.S. Underwriters for offer and sale upon the terms and conditions
set forth in the Prospectus and in accordance with the rules and
regulations of the National Association of Securities Dealers, Inc.
to employees and persons having business relationships with the
Company who have heretofore delivered to the Lead Managers offers
or indications of interest to purchase shares of Firm Stock in form
satisfactory to the Lead Managers, and that any allocation of such
Firm Stock among such persons will be made in accordance with
timely directions received by the Lead Managers from the Company;
provided, that under no circumstances will the Lead Managers or any
International Manager be liable to the Company or to any such
person for any action taken or omitted in good faith in connection
with such offering to employees and persons having business
relationships with the Company. It is further understood that any
shares of such Firm Stock which are not purchased by such persons
will be offered by the International Managers to the public upon
the terms and conditions set forth in the Prospectus.
Each International Manager agrees that, except to the extent
permitted by the Agreement Between International Managers and U.S.
Underwriters, it will not offer or sell any of the Stock inside of
the United States and Canada.
4. Delivery of and Payment for the International Stock.
Delivery of and payment for the Firm Stock shall be made at the
office of Xxxxxxxxxx & Xxxxx LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx,
XX 00000, at 10:00 A.M., New York City time, on the third full
business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the Lead
Managers and the Company. This date and time are sometimes
referred to as the First Delivery Date. On the First Delivery
Date, the Company shall deliver or cause to be delivered
certificates representing the Firm
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Stock to the Lead Managers for the account of each International
Manager against payment to or upon the order of the Company of the
purchase price by certified or official bank check or checks
payable in immediately available funds. Time shall be of the
essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each
International Manager hereunder. Upon delivery, the Firm Stock
shall be registered in such names and in such denominations as the
Lead Managers shall request in writing not less than two full
business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the
Firm Stock, the Company shall make the certificates representing
the Firm Stock available for inspection by the Lead Managers in New
York, New York, not later than 2:00 P.M., New York City time, on
the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement the option granted in Section 2 may be exercised in
whole or in part, at any time and from time to time, upon written
notice being given to the Company by the Lead Managers. Such
notice shall set forth the aggregate number of shares of Option
Stock as to which the option is being exercised, the names in which
the shares of Option Stock are to be registered, the denominations
in which the shares of Option Stock are to be issued and the date
and time, as determined by the Lead Managers, when the shares of
Option Stock are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor
earlier than the second business day after the date on which the
option shall have been exercised nor later than the fifth business
day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are
sometimes referred to as the "Second Delivery Date" and the First
Delivery Date and the Second Delivery Date are sometimes each
referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made
at the place specified in the first sentence of the first paragraph
of this Section 4 (or at such other place as shall be determined by
agreement between the Lead Managers and the Company) at 10:00 A.M.,
New York City time, on the Second Delivery Date. On the Second
Delivery Date, the Company shall deliver or cause to be delivered
the certificates representing the Option Stock to the Lead Managers
for the account of each International Manager against payment to or
upon the order of the Company of the purchase price by certified or
official bank check or checks payable in immediately available
funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition
of the obligation of each International Manager hereunder. Upon
delivery, the Option Stock shall be registered in such names and in
such denominations as the Lead Managers shall request in the
aforesaid written notice. For the purpose of
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expediting the checking and packaging of the certificates for the
Option Stock, the Company shall make the certificates representing
the Option Stock available for inspection by the Lead Managers in
New York, New York, not later than 2:00 P.M., New York City time,
on the business day prior to the Second Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Lead
Managers and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than Commission's close of business on
the second business day following the execution and delivery of
this Agreement or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Securities Act; to make no
further amendment or any supplement to the Registration Statement
or to the Prospectus except as permitted herein; to advise the Lead
Managers, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Lead Managers
with copies thereof; to advise the Lead Managers, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts
to obtain its withdrawal;
(b) To furnish promptly to each of the Lead Managers and to
counsel for the International Managers a signed copy of the
Registration Statement as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to the Lead Managers such number of
the following documents as the Lead Managers shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto,
and (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; and, if the delivery of the
Prospectus is required at any time after the Effective Time in
connection with the offering or sale of the Stock or any other
securities relating thereto and if at such time any events shall
have occurred as a result of which the Prospectus as
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then amended or supplemented would include an 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 when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to
amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Lead Managers and, upon their
request, to file such document and to prepare and furnish without
charge to each International Manager and to any dealer in
securities as many copies as the Lead Managers may from time to
time reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Company or the Lead
Managers, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Lead Managers and counsel for the
International Managers and obtain the consent of the Lead Managers
to the filing;
(f) As soon as practicable after the Effective Date (but in
no event later than 15 months after the Effective Date), to make
generally available to the Company's security holders and to
deliver to the Lead Managers an earnings statement of the Company
(which need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of five years following the Effective Date,
to furnish to the Lead Managers copies of all materials furnished
by the Company to its shareholders and all public reports and all
reports and financial statements furnished by the Company to the
principal national securities exchange upon which the Common Stock
may be listed pursuant to requirements of or agreements with such
exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Lead Managers may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions
as the Lead Managers may request and to comply with such laws so as
to permit the continuance of sales and dealings therein
13
in such jurisdictions for as long as may be necessary to complete
the distribution of the Stock;
(i) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, offer for sale, sell or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common
Stock (other than the Stock and shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof or pursuant to
currently outstanding options, warrants or rights), or sell or
grant options, rights or warrants with respect to any shares of
Common Stock (other than the grant of options pursuant to option
plans existing on the date hereof), without the prior written
consent of Xxxxxx Brothers International (Europe) on behalf of the
Lead Managers;
(j) Prior to the Effective Date, to apply for the inclusion
of the Stock for quotation on the Nasdaq National Market and to use
its best efforts to effect such quotation, subject only to official
notice of issuance, prior to the First Delivery Date;
(k) To apply the net proceeds from the sale of the Stock
being sold by the Company as set forth in the Prospectus; and
(l) To take such steps as shall be necessary to ensure that
the Company shall not become an "investment company" within the
meaning of such term under the Investment Company Act of 1940 and
the rules and regulations of the Commission thereunder.
6. Further Agreement of the Parent. The Parent agrees:
For a period of 180 days from the date of the Prospectus,
not to, and not to allow or cause Securicor Communications LTD, the
Company's direct parent, or the Company to directly or indirectly,
offer for sale, sell or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the
future of) any shares of Common Stock, or sell or grant options,
rights or warrants with respect to any shares of Common Stock,
without the prior written consent of Xxxxxx Brothers International
(Europe) on behalf of the Lead Managers.
7. Expenses. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Stock and
any taxes payable in that
14
connection; (b) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing
the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus
and any amendment or supplement to the Prospectus, all as provided
in this Agreement; (d) the costs of producing and distributing this
Agreement, the U.S. Underwriting Agreement, the Agreement Between
International Managers and International Managers, any Supplemental
Agreement Among International Managers, the Agreement Among
International Managers, the International Selling Agreement and any
other related documents in connection with the offering, purchase,
sale and delivery of the Stock; (e) the filing fees incident to
securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Stock; (f) any
applicable listing or other fees including the fees for quotation
of the Common Stock on the Nasdaq National Market; (g) the fees and
expenses of qualifying the Stock under the securities laws of the
several jurisdictions as provided in Section 5(h) and of preparing,
printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the International Managers); (h)
all costs and expenses of the International Managers, including the
fees and disbursements of counsel for the International Managers,
incident to the offer and sale of Common Stock by the International
Managers to employees and persons having business relationships
with the Company, as described in Section 3; and (i) all other
costs and expenses incident to the performance of the obligations
of the Company and the Parent under this Agreement; provided that,
except as provided in this Section 7 and in Section 12 the
International Managers shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer
taxes on the Stock which they may sell and the expenses of
advertising any offering of the Stock made by the International
Managers.
8. Conditions of International Managers' Obligations. The
respective obligations of the International Managers hereunder are
subject to the accuracy, when made and on each Delivery Date, of
the representations and warranties of the Company and the Parent
contained herein, to the performance by the Company and the Parent
of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a); no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or
otherwise shall
15
have been complied with or otherwise adequately addressed to the
Commission's satisfaction.
(b) No International Manager or U.S. Underwriter shall have
discovered and disclosed to the Company on or prior to such
Delivery Date that the Registration Statement or the Prospectus or
any amendment or supplement thereto contains an untrue statement of
a fact which, in the opinion of Xxxxxxxxxx & Xxxxx LLP, counsel for
the International Managers, is material or omits to state a fact
which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein
not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement,
the U.S. Underwriting Agreement, the Stock, the Registration
Statement and the Prospectus, and all other legal matters relating
to this Agreement and the transactions contemplated hereby,
including but not limited to the Reorganization, shall be reasonably
satisfactory in all material respects to counsel for the
International Managers, and the Company and the Parent shall have
furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) Wolf, Block, Xxxxxx & Xxxxx-Xxxxx shall have furnished
to the Lead Managers its written opinion, as counsel to the
Company, addressed to the International Managers and dated such
Delivery Date, in form and substance reasonably satisfactory to the
Lead Managers, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do business and
is in good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to
be so qualified could not be expected to have a Material Adverse
Effect, has all power and authority necessary to own or hold its
properties and conduct the businesses in which it is engaged and
has complied in all respects with the applicable requirements under
Delaware law for changing its corporate name;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company (including the shares of Stock being delivered
on such Delivery Date) have been duly and validly authorized and
issued, are fully paid and non-
16
assessable and conform to the description thereof contained in the
Prospectus;
(iii) Pursuant to the Company's certificate of
incorporation or by-laws there are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the voting
or transfer of, any shares of the Stock, nor is there, to such
counsel's knowledge, any agreement or other instrument relating to
the foregoing to which the Company is a party or by which the
Company may be bound;
(iv) All real property and buildings held under lease by the
Company and its subsidiary are held by them under valid, subsisting
and enforceable leases, except where the failure to be so held
could not be expected to have a Material Adverse Effect with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company and its subsidiary;
(v) To such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or its subsidiary is a party or of
which any property or assets of the Company or its subsidiary is
the subject which, if determined adversely to the Company or its
subsidiary, might have a Material Adverse Effect; and, to such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such
opinion, the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein and to such
counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and, no proceeding for
that purpose is pending or threatened by the Commission;
(vii)The Registration Statement and the Prospectus and
any further amendments or supplements thereto made by the Company
prior to such Delivery Date (other than the financial statements
and schedules and other financial data contained therein, as to
which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Securities Act
and the Rules and Regulations;
17
(viii) To such counsel's knowledge, there are no contracts
or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not
been described or filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules and
Regulations;
(ix) The Company has all requisite corporate power and
authority to execute and deliver this Agreement and the U.S.
Underwriting Agreement and to perform its obligations hereunder and
thereunder and this Agreement and the U.S. Underwriting Agreement
have each been duly authorized, executed and delivered by the
Company;
(x) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the compliance
by the Company with all of the provisions of this Agreement and the
consummation of the transactions contemplated hereby, including but
not limited to the Reorganization, will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument listed as an
exhibit to the Registration Statement, nor will such actions result
in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of its properties or assets; and, except for the registration
of the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
by the National Association of Securities Dealers, Inc. (the
"NASD") or under the Exchange Act and applicable state securities
laws in connection with the purchase and distribution of the Stock
by the International Managers and the U.S. Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement by the Company or the Parent and the consummation of the
transactions contemplated hereby including but not limited to the
Reorganization; and
(xi) Except as described in the Prospectus, to such
counsel's knowledge, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with
18
respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities
Act.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United
States of America and the General Corporation Law Statute of the
State of Delaware. Such counsel shall also have furnished to the
Lead Managers a written statement, addressed to the International
Managers and dated such Delivery Date, in form and substance
satisfactory to the Lead Managers, to the effect that (x) such
counsel has acted as counsel to the Company in connection with the
Reorganization and the preparation of the Registration Statement,
and (y) based on the procedures set forth therein but without
independent check or verification, no facts have come to the
attention of such counsel which lead it to believe that the
Registration Statement, as of the Effective Date, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein not misleading. The foregoing statement may
be qualified by a statement to the effect that such counsel does
not (i) assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement
or the Prospectus or (ii) express any views to the financial
statements and schedules and other financial data contained therein.
(e) Xxxxxxx Xxxxx[U.K. Counsel] shall have furnished to the
Lead Managers its written opinion, as United Kingdom counsel to the
Parent, addressed to the Lead Managers and the International
Managers and dated such Delivery Date, in form and substance
reasonably satisfactory to the Lead Managers, to the effect that:
(i) The Parent is a company incorporated and existing
with limited liability under the laws of England.
(ii) The searches made at the Company's Registry in London
on a recent date revealed no order or resolution for the winding up
of the Parent, no notice of appointment of a receiver and no notice
of an administration order. Such opinion may state that such
searches are not capable of revealing whether or not a petition for
an administration order or winding up order has been presented and
that notice of an administration or winding up order made or
resolution passed or receiver appointed may not be filed at the
Companies Registry immediately. Such opinion may further state
that a director of the Parent has certified to such counsel to
19
the effect that to such director's knowledge no such event had
occurred at a recent date.
(iii) The Parent has all requisite corporate power to
execute and deliver this Agreement and perform its obligations
hereunder.
(iv) The execution and delivery of this Agreement by the
Parent and the performance of its obligations hereunder have been
duly authorized by appropriate corporate action of the Parent.
(v) The choice of law and submission to jurisdiction
clauses contained in this Agreement would be recognized by the High
Court in England such that a final and conclusive money judgment of
the courts of New York properly obtained against the Parent
pursuant to this Agreement otherwise than through fraud or
proceedings opposed to natural justice would be capable of being
enforced in England in sterling save where its enforcement would be
contrary to public policy.
(vi) The execution, delivery and performance by the Parent
of this Agreement will not violate any provision of (i) any English
law or regulation applicable to companies generally or (ii) the
Parent's Memorandum or Articles of Association.
(vii) No authorizations, approvals, consents, licences,
exemptions, filings, registrations, notarizations or other
requirements of or with United Kingdom governmental, judicial or
public bodies or authorities are required in connection with the
execution, delivery or performance of this Agreement. Such opinion
may further state that the issue of stock by the Company pursuant
to this Agreement for full consideration to persons unconnected
(directly or indirectly) with the Parent is covered by the Treasury
general consent 15th March 1988 pursuant to section 765 of the
Income and Corporation Taxes Xxx 0000.
(viii) No stamp, registration or similar taxes or charges
are payable in England in respect of this Agreement.
(ix) The Parent is the registered holder of the entire
issued share of capital of Securicor Communications Ltd.
(f) The Lead Managers shall have received from Xxxxxxxxxx &
Xxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated such Delivery
20
Date, with respect to the issuance and sale of the Stock, the
Registration Statement, the Prospectus and other related matters as
the Lead Managers may reasonably require, and the Company and the
Parent shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon
such matters.
(g) At the time of execution of this Agreement, the Lead
Managers shall have received from Xxxxxx Xxxxxxxx LLP a letter, in
form and substance satisfactory to the Lead Managers, addressed to
the Underwriters and dated the date hereof (i) confirming that they
are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of
the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters"
to underwriters in connection with registered public offerings.
(h) With respect to the letter of Xxxxxx Xxxxxxxx LLP
referred to in the preceding paragraph and delivered to the Lead
Managers concurrently with the execution of this Agreement (the
"initial letter"), the Company shall have furnished to the Lead
Managers a letter (the "bring-down letter") of such accountants,
addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of
accountants under Rule 201 of Regulation S-X of the Commission,
(ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information is
given in the Prospectus, as of a date not more than five days prior
to the date of the bring-down letter), the conclusions and findings
of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the
initial letter.
(i) The Company and the Parent shall have furnished to the
Lead Managers certificates, dated such Delivery Date, of their
respective Chairman of the Board, President or a Vice President and
their chief financial officers stating that:
21
(i) The representations, warranties and agreements of the
Company and the Parent in Section 1 are true and correct as of such
Delivery Date; the Company has complied with all its agreements
contained herein; and the conditions set forth in Sections 8(a) and
8(i) have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since the
Effective Date no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statement or
the Prospectus and is not so set forth.
(j) (i) Neither the Company nor its subsidiary shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus or (ii) since such date there
shall not have been any change in the capital stock or long-term
debt of the Company or its subsidiary or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders'
equity, results of operations, properties, assets, liabilities,
future prospects or business of the Company and its subsidiary,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii),
is, in the judgment of the Lead Managers, so material and adverse
as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Stock being delivered on
such Delivery Date on the terms and in the manner contemplated in
the Prospectus.
(k) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange or
the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by United States
Federal or state authorities, (iii) the United States shall have
become
22
engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect
of international conditions on the financial markets in the United
States shall be such), the effect of which, in any such case
described in clause (i), (ii), (iii) or (iv), is to make it, in the
judgment of a majority in interest of the several International
Managers, impracticable or inadvisable to proceed with the public
offering or delivery of the Stock being delivered on such Delivery
Date on the terms and in the manner contemplated in the Prospectus.
(l) The Nasdaq National Market shall have approved the Stock
for inclusion, subject only to official notice of issuance and
evidence of satisfactory distribution.
(m) The closing under the U.S. Underwriting Agreement shall
have occurred concurrently with the Closing hereunder on the
Delivery Date.
(n) You shall have been furnished such additional documents
and certificates as you or counsel for the International Managers
may reasonably request related to this Agreement and the
transactions contemplated hereby.
All opinions, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to counsel for the
International Managers.
9. Indemnification and Contribution.
(a) The Company and the Parent, severally and jointly, shall
indemnify and hold harmless each International Manager, its
officers and employees and each person, if any, who controls any
International Manager within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating
to purchases and sales of Stock), to which that International
Manager, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other
document prepared or executed by the Company (or based upon any
written information furnished
23
by the Company) specifically for the purpose of qualifying any or
all of the Stock under the securities laws of any state or other
jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) any act or failure to
act or any alleged act or failure to act by any International
Manager in connection with, or relating in any manner to, the Stock
or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (i) or (ii)
above (provided that neither the Company nor the Parent shall be
liable under this clause (iii) to the extent that it is determined
in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any
such acts or failures to act undertaken or omitted to be taken by
such International Manager through its gross negligence or willful
misconduct), and shall reimburse each International Manager and
each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that
International Manager, officer, employee or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that neither the Company
nor the Parent shall be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application, in
reliance upon and in conformity with written information concerning
such International Manager furnished to the Company through the
Lead Managers by or on behalf of any International Manager
specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Company or the
Parent may otherwise have to any International Manager or to any
officer, employee or controlling person of that International
Manager.
(b) Each International Manager, severally and not jointly,
shall indemnify and hold harmless the Company, its officers and
employees, each of its directors (including any person who, with
his or her consent, is named in the Registration Statement as about
to become a director of the Company), and each person, if any, who
controls the Company within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several,
or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a
24
material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the
omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information concerning such International
Manager furnished to the Company through the Lead Managers by or on
behalf of that International Manager specifically for inclusion
therein, and shall reimburse the Company and any such director,
officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which any International
Manager may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under this Section 9,
notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 9 except to the
extent it has been materially prejudiced by such failure and,
provided further, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 9. If any such
claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 9
for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Lead
Managers shall have the right to employ counsel to represent
jointly the Lead Managers and those other International Managers
and their respective officers, employees and controlling persons
who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the International Managers
against the Company or the Parent under this Section 9 if, in the
reasonable judgment of the Lead Managers, it is advisable for the
Lead Managers and those
25
International Managers, officers, employees and controlling persons
to be jointly represented by separate counsel, and in that event
the fees and expenses of such separate counsel shall be paid by the
Company or the Parent. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless, such settlement, compromise or consent
includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff
in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 9(a) or 9(b) in respect
of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect
the relative benefits received by the Company and the Parent on the
one hand and the Underwriters on the other from the offering of the
Stock or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Parent on
the one hand and the International Managers on the other with
respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative
benefits received by the Company and the Parent on the one hand and
the International Managers on the other with respect to such
offering shall be deemed to be in the same proportion as the total
net proceeds from the International Stock purchased under this
Agreement received by the Company and the Parent, on the one hand,
and the total underwriting discounts and commissions received by
the International Managers with respect to the shares of the
International Stock purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the
shares of the International Stock under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission
or alleged
26
omission to state a material fact relates to information supplied
by the Company, the Parent or the International Managers, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company, the Parent and the International Managers
agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata
allocation (even if the International Managers were treated as one
entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section shall be deemed
to include, for purposes of this Section 9(d), any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 9(d), no
International Manager shall be required to contribute any amount in
excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such International
Manager has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such
fraudulent misrepresentation. The International Managers'
obligations to contribute as provided in this Section 9(d) are
several in proportion to their respective underwriting obligations
and not joint.
(e) The International Managers severally confirm and the
Company acknowledges that the statements with respect to the public
offering of the Stock by the International Managers set forth on
the cover page of, the legends concerning stabilization and passive
market making on the inside front cover page of, and, except for
the 14th and 15th paragraphs thereunder, the text appearing under
the caption "Underwriting" in, the Prospectus are correct and
constitute the only information concerning such International
Managers furnished in writing to the Company by or on behalf of the
International Managers specifically for inclusion in the
Registration Statement and the Prospectus.
10. Defaulting International Managers. If, on either Delivery
Date, any International Manager defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting
International Managers shall be obligated to purchase the Stock
which the defaulting International Manager agreed but failed to
purchase on such Delivery Date in the respective proportions which
the number of shares of the Firm Stock set opposite the name of
each remaining non-defaulting International Manager in Schedule 1
hereto bears to the total number of shares of the Firm Stock set
opposite the names of all the remaining non-defaulting
International Managers in Schedule 1 hereto; provided,
27
however, that the remaining non-defaulting International Managers
shall not be obligated to purchase any of the Stock on such
Delivery Date if the total number of shares of the Stock which the
defaulting International Manager or International Managers agreed
but failed to purchase on such date exceeds 9.09% of the total
number of shares of the Stock to be purchased on such Delivery
Date, and any remaining non-defaulting International Manager shall
not be obligated to purchase more than 110% of the number of shares
of the Stock which it agreed to purchase on such Delivery Date
pursuant to the terms of Section 2. If the foregoing maximums are
exceeded, the remaining non-defaulting International Managers, or
those other underwriters satisfactory to the Lead Managers who so
agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, all
the Stock to be purchased on such Delivery Date. If the remaining
International Managers or other underwriters satisfactory to the
Lead Managers do not elect to purchase the shares which the
defaulting International Manager or International Managers agreed
but failed to purchase on such Delivery Date, this Agreement (or,
with respect to the Second Delivery Date, the obligation of the
International Managers to purchase, and of the Company to sell, the
Option Stock) shall terminate without liability on the part of any
non-defaulting International Manager or the Company or the Parent,
except that the Company and the Parent will continue to be liable
for the payment of expenses to the extent set forth in Sections 7
and 12. As used in this Agreement, the term "International
Manager" includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule 1
hereto who, pursuant to this Section 10, purchases Firm Stock which
a defaulting International Manager agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting
International Manager of any liability it may have to the Company
and the Parent for damages caused by its default. If other
underwriters are obligated or agree to purchase the Stock of a
defaulting or withdrawing International Manager, either the Lead
Managers or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the
opinion of counsel for the Company or counsel for the International
Managers may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
11. Termination. The obligations of the International Managers
hereunder may be terminated by the Lead Managers by notice given to
and received by the Company prior to delivery of and payment for
the Firm Stock if, prior to that time, any of the events described
in Sections 8(i) or 8(j), shall have occurred or if the
International Managers shall decline to purchase the Stock for any
reason permitted under this Agreement.
12. Reimbursement of International Managers' Expenses. If (a)
the Company shall fail to tender the Stock for delivery to the
International Managers by
28
reason of any failure, refusal or inability on the part of the
Company or the Parent to perform any agreement on its part to be
performed, or because any other condition of the International
Managers' obligations hereunder required to be fulfilled by the
Company or the Parent is not fulfilled, the Company and the Parent,
severally and jointly, will reimburse the International Managers
for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the International Managers in
connection with this Agreement and the proposed purchase of the
Stock, and upon demand the Company and the Parent, severally and
jointly, shall pay the full amount thereof to the Lead Managers.
If this Agreement is terminated pursuant to Section 10 by reason of
the default of one or more International Managers, neither the
Company nor the Parent shall be obligated to reimburse any
defaulting International Manager on account of those expenses.
13. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the International Managers, shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx Brothers
International (Europe), 0 Xxxxxxxxx, 0xx Xxxxx, Xxxxxx XX0X 0XX
Xxxxxxx, with a copy, in the case of any notice pursuant to Section
9(c), to the Director of Litigation, Office of the General Counsel,
Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000;
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Xxxxxx X. Xxxxxxx
(Fax: 000-000-0000); and
(c) if to the Parent, shall be delivered or sent by mail,
telex or facsimile transmission to Security Services plc, [Address],
Attention: [_____________] (Fax:________________);
provided, however, that any notice to an International Manager
pursuant to Section 9(c) shall be delivered or sent by mail, telex
or facsimile transmission to such International Manager at its
address set forth in its acceptance telex to the Lead Managers,
which address will be supplied to any other party hereto by the
Lead Managers upon request. Any such statements, requests, notices
or agreements shall take effect at the time of receipt thereof. The
Company and the Parent shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of
the International Managers by Xxxxxx Brothers Inc. on behalf of the
Lead Managers.
29
14. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the International
Managers, the Company, the Parent and their respective
representatives and successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and
agreements of the Company and the Parent contained in this
Agreement shall also be deemed to be for the benefit of the person
or persons, if any, who control any International Manager within
the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the International Managers contained in
Section 9(b) of this Agreement shall be deemed to be for the
benefit of directors of the Company, officers of the Company who
have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section
13, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
15. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Parent and the
International Managers contained in this Agreement or made by or on
behalf on them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Stock and shall remain
in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
16. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange, Inc. is open for trading and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York applicable to
agreements made and performed in the State of New York without
regard to the conflict of laws provision.
18. Consent to Jurisdiction. Each party irrevocably agrees that
any legal suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby ("Related
Proceedings") may be instituted in the federal courts of the United
States of America located in the City of New York or the courts of
the State of New York in each case located in the Borough of
Manhattan in the City of New York (collectively, the "Specified
Courts"), and irrevocably submits to the exclusive jurisdiction
(except for proceedings instituted in regard to the enforcement of
a judgment of any such court (a "Related Judgment"), as to which
such jurisdiction is non-exclusive) of such
30
courts in any such suit, action or proceeding. The parties further
agree that service of any process, summons, notice or document by
mail to such party's address set forth above shall be effective
service of process for any lawsuit, action or other proceeding
brought in any such court. The parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any
lawsuit, action or other proceeding in the Specified Courts, and
hereby further irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such lawsuit, action
or other proceeding brought in any such court has been brought in
an inconvenient forum. Each party not located in the United States
hereby irrevocably appoints CT Corporation System, which currently
maintains a New York City office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Xxxxxx Xxxxxx of America, as its agent to receive
service of process or other legal summons for purposes of any such
action or proceeding that may be instituted in any state or federal
court in the City and State of New York.
19. Waiver of Immunity. With respect to any Related Proceeding,
each party irrevocably waives, to the fullest extent permitted by
applicable law, all immunity (whether on the basis of sovereignty
or otherwise) from jurisdiction, service of process, attachment
(both before and after judgment) and execution to which it might
otherwise be entitled in the Specified Courts, and with respect to
any Related Judgment, each party waives any such immunity in the
Specified Courts or any other court of competent jurisdiction, and
will not raise or claim or cause to be pleaded any such immunity at
or in respect of any such Related Proceeding or Related Judgment,
including, without limitation, any immunity pursuant to the United
States Foreign Sovereign Immunities Act of 1976, as amended.
20. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the
executed counterparts shall each be deemed to be an original but
all such counterparts shall together constitute one and the same
instrument.
21. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among
the Company, the Parent and the International Managers, please
indicate your acceptance in the space provided for that purpose
below.
Very truly yours,
AXIOM INC.
31
By:
------------------------------------
Name:
Title:
SECURITY SERVICES PLC
By:
------------------------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
X.X. XXXXXX SECURITIES LTD.
For themselves and as Lead Managers of the several
International Managers named in Schedule 1 hereto
By: XXXXXX BROTHERS INTERNATIONAL (EUROPE)
By:
-------------------------------
Authorized Representative
32
SCHEDULE 1
International Managers Number of
Shares
Xxxxxx Brothers International (Europe)............
X.X. Xxxxxx Securities Ltd. ......................
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Total.......................................
