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DRAFT OF 2/5/98
_______________ SHARES
XXXX ELECTRONICS CORP.
COMMON STOCK
UNDERWRITING AGREEMENT
February , 1998
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm the agreement of Xxxx Electronics Corp., a Delaware
corporation (the "Company"), the stockholders of the Company listed on Schedule
I hereto (the "Selling Stockholders") and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation (referred to herein as "you" or the "Underwriter"),
relating to the proposed sale by the Selling Stockholders of an aggregate of
___________ shares (the "Firm Shares") of common stock, $0.01 par value per
share, of the Company, together with the attached preferred stock purchase
rights (the "Common Stock"), to the Underwriter in accordance with the terms
hereof. Additionally, the Company proposes to sell to the Underwriter not more
than an additional __________ shares of Common Stock (the "Company Additional
Shares") and [CERTAIN] Selling Stockholders [INDICATED ON SCHEDULE I HERETO]
collectively propose to sell an additional _______ shares of Common Stock (in
the respective amounts indicated on Schedule I hereto) ( the "Selling
Stockholder Additional Shares"), if requested by the Underwriter as provided in
Section 2 hereof. The Company Additional Shares and the Selling Stockholder
Additional Shares are hereinafter referred to herein as the "Additional
Shares." The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "Shares."
SECTION 1. Registration Statement and Prospectus. The Company
has prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 including a
prospectus relating to the Shares, which from time to time may be amended. The
registration statement as amended at the time when it becomes effective,
including any registration statement increasing the size of the offering filed
pursuant to Rule 462(b) under the Act or, if a post-effective amendment is
filed with respect thereto, as amended by such post-effective amendment at the
time
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of its effectiveness and including the information (if any) deemed to be part
of the registration statement at the time of effectiveness pursuant to Rule
430A or Rule 434 under the Act, is hereinafter referred to as the "Registration
Statement"; and the prospectus (including any prospectus subject to completion
meeting the requirements of Rule 434(b) under the Act provided by the Company
with any term sheet meeting the requirements of Rule 434(b) as the prospectus
provided to meet the requirements of Section 10(a) of the Act) in the form
first used to confirm sales of Shares is hereinafter referred to as the
"Prospectus." The terms "supplement" and "amendment" or "amend" as used in this
Agreement with respect to the Registration Statement or the Prospectus shall
include all documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act")
that are deemed to be incorporated by reference in the Prospectus.
SECTION 2. Agreements to Sell and Purchase and Lock-Up
Agreements. On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, each Selling
Stockholder agrees, severally and not jointly, to sell, and the Underwriter
agrees to purchase from the Selling Stockholders at a price per Share of
$_________ (the "Purchase Price"), the number of Firm Shares indicated opposite
such Selling Stockholders name on Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Company Additional Shares and the Selling Stockholders [INDICATED
ON SCHEDULE I HERETO] agree to sell the Selling Stockholder Additional Shares,
and the Underwriter shall have the right to purchase any or all of the such
Additional Shares, at the Purchase Price. Additional Shares may be purchased
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. The Underwriter may exercise their right to
purchase Additional Shares in whole or in part from time to time by giving
written notice thereof to the Company within 30 days after the date of this
Agreement. Such notice shall specify the aggregate number of Additional Shares
to be purchased pursuant to such exercise and the date for payment and delivery
thereof which date shall be a business day (i) no earlier than the Closing Date
(as hereinafter defined), (ii) no later than ten business days after such
notice has been given and (iii) no earlier than two business days after such
notice has been given. [ IF FEWER THAN ALL OF THE ADDITIONAL SHARES ARE TO BE
PURCHASED, SUCH ADDITIONAL SHARES SHALL BE PURCHASED FROM THE COMPANY AND THE
SELLING STOCKHOLDERS ON A PRO RATA BASIS.]
The Company and the Selling Stockholders hereby agree, and the
Company shall, concurrently with the execution of this Agreement, deliver an
agreement executed by (i) each of the directors and executive officers of the
Company and (ii) each additional stockholder listed on Annex I hereto, pursuant
to which each such person agrees, not to offer, sell, contract to sell, grant
any option to purchase or otherwise dispose of any Common Stock or any
securities convertible into or exercisable or exchangeable for shares of such
Common Stock or in any other manner transfer all or a portion of the economic
consequences associated with the ownership of any shares of Common Stock, for a
period of 90 days after the date of the Prospectus without your prior written
consent. You hereby agree that you shall waive compliance with the restrictions
contained in such agreements
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in the event any of the foregoing persons (i) makes a bona fide gift or gifts
of shares of Common Stock or securities convertible into or exercisable or
exchangeable for such Common Stock, provided that the recipient of any such
shares or other securities granted or issued pursuant to this clause (i) agrees
in writing to be bound by the foregoing restrictions for the remainder of such
90-day period, or (ii) makes a distribution of such shares of Common Stock or
securities convertible into or exercisable or exchangeable for such Common
Stock to limited partners, beneficiaries or shareholders of such person,
provided that the recipient of any such shares or other securities distributed
or issued pursuant to this clause (ii) agrees in writing to be bound by the
foregoing restrictions for the remainder of such 90- day period.
Notwithstanding the foregoing, during such period, the Company (i) may grant
stock options pursuant to the Company's existing stock option plan, (ii) may
issue shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and (iii) may issue
shares of Common Stock or securities convertible into or exercisable or
exchangeable for shares of Common Stock in connection with an acquisition or
business combination; provided that the recipient of any such shares or other
securities issued pursuant to this clause (iii) agrees in writing to be bound
by the foregoing restrictions for the remainder of such 90-day period.
SECTION 3. Terms of Public Offering. The Company and the Selling
Stockholders are advised by you that you propose (i) to make a public offering
of their respective portions of the Shares as soon after the effective date of
the Registration Statement as in your judgment is advisable and (ii) initially
to offer the Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriter of
and payment for the Firm Shares shall be made at 10:00 A.M., New York City
time, on February __, 1998 (the "Closing Date"), at such place as you shall
designate. The Closing Date and the location of delivery of and the form of
payment for the Firm Shares may be varied by agreement between you and the
Company.
Delivery to the Underwriter of and payment for any Additional Shares
to be purchased by the Underwriter shall be made at such place as the
Underwriter shall designate at 10:00 A.M., New York City time, on the date
specified in the applicable exercise notice given by the Underwriter pursuant
to Section 2 (an "Option Closing Date"). Any such Option Closing Date and the
location of delivery of and the form of payment for such Additional Shares may
be varied by agreement between the Underwriter and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or the applicable Option Closing Date, as the case may be,
with any transfer taxes on the Firm Shares or the Selling Stockholder
Additional Shares, if applicable, duly paid by the Selling Stockholders and any
transfer taxes on the Company Additional Shares, if applicable, duly paid by
the Company for the account of the
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Underwriter, against payment to the Selling Stockholders or the Company, as the
case may be, of the Purchase Price therefor by wire transfer of Federal or
other funds immediately available to an account designated by the Selling
Stockholders or the Company, as the case may be.
SECTION 5. Agreements of the Company. The Company agrees with
you:
(a) To use its best efforts to cause the Registration
Statement to become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment to it becomes effective, (ii)
of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, and (iv) of the happening of
any event during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) To furnish you, without charge, three signed copies
of the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits and documents incorporated therein by
reference, and to furnish to you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits but including documents incorporated therein by reference, as you may
reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or to make any amendment or supplement to the Prospectus (including
the issuance or filing of any term sheet within the meaning of Rule 434) of
which you shall not previously have been advised or to which you shall
reasonably object; and to prepare and file with the Commission, promptly upon
your reasonable request, any amendment to the Registration Statement or
supplement to the Prospectus (including the issuance or filing of any term
sheet within the meaning of Rule 434) which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its best
efforts to cause the same to become promptly effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the opinion
of counsel for the Underwriter a prospectus is required by law to be delivered
in connection with sales by the Underwriter or a dealer, to furnish to the
Underwriter and dealer as many copies of the Prospectus (and of any amendment
or
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supplement to the Prospectus) and any documents incorporated therein by
reference as the Underwriter or dealer may reasonably request.
(f) If during the period specified in paragraph (e) any
event shall occur as a result of which, in the reasonable opinion of counsel
for the Underwriter, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply with law,
and to furnish to the Underwriter and to such dealers as you shall specify,
such number of copies thereof as the Underwriter or dealers may reasonably
request.
(g) Prior to any public offering of the Shares, to
cooperate with you and counsel for the Underwriter in connection with the
registration or qualification of the Shares for offer and sale by the
Underwriter and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be reasonably necessary in order
to effect such registration or qualification.
(h) To mail and make generally available to the Company's
stockholders as soon as reasonably practicable an earnings statement covering a
twelve month period beginning after the effective date of the Registration
Statement which shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years after the date of
this Agreement, (i) to mail as soon as reasonably practicable after the end of
each fiscal year to the record holders of its Common Stock a financial report
of the Company and its subsidiaries on a consolidated basis (and a similar
financial report of all unconsolidated subsidiaries, if any), all such
financial reports to include a consolidated balance sheet, a consolidated
statement of operations, a consolidated statement of cash flows and a
consolidated statement of shareholders' equity as of the end of and for such
fiscal year, together with comparable information as of the end of and for the
preceding year, certified by independent certified public accountants, and (ii)
to mail and make generally available as soon as practicable after the end of
each quarterly period (except for the last quarterly period of each fiscal
year) to such holders, a consolidated balance sheet, a consolidated statement
of operations and a consolidated statement of cash flows (and similar financial
reports of all unconsolidated subsidiaries, if any) as of the end of and for
such period, and for the period from the beginning of such year to the close of
such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(j) During the period referred to in paragraph (i), to
furnish to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the
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holders of Common Stock or filed with the Commission and such other publicly
available information concerning the Company and its subsidiaries as you may
reasonably request.
(k) To pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), each
preliminary prospectus and all amendments and supplements to any of them prior
to or during the period specified in paragraph (e), (ii) the printing and
delivery of the Prospectus and all amendments or supplements to it during the
period specified in paragraph (e), (iii) the printing and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky memoranda and all other
agreements, memoranda, correspondence and other documents printed and delivered
in connection with the offering of the Shares, (iv) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states (including in each case the reasonable fees and
disbursements of counsel for the Underwriter relating to such registration or
qualification and memoranda relating thereto), (v) filing fees in connection
with clearance with the National Association of Securities Dealers, Inc. of the
offering, (vi) the listing of the Company Additional Shares on the New York
Stock Exchange (the "NYSE"), (vii) furnishing such copies of the Registration
Statement, the Prospectus and all amendments and supplements thereto as may be
requested for use in connection with the offering or sale of the Shares by the
Underwriter or by dealers to whom Shares may be sold and (viii) the performance
by the Company and the Selling Stockholders of their other obligations under
this Agreement.
(l) To use its best efforts to list the Company
Additional Shares on the NYSE and to maintain the listing of the Shares and the
Common Stock on the NYSE for a period of three years after the effective date
of the Registration Statement.
(m) To use the net proceeds of the sale of the Company
Additional Shares in substantially the manner set forth in the Prospectus.
(n) To use its commercially reasonable efforts to do and
perform all things required or necessary to be done to satisfy all conditions
precedent to the delivery of the Shares.
SECTION 6. Representations and Warranties of the Company and
Xxxx. The Company and Xxxx Electronics Group, Inc., a Delaware corporation
("Xxxx"), jointly and severally represent and warrant to the Underwriter that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to the
Company's knowledge, threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act, (ii)
each part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated
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therein or necessary to make the statements therein not misleading, (iii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and (iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (b) do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to the Underwriter furnished to the Company in
writing by the Underwriter expressly for use therein.
(c) Any term sheet and prospectus subject to completion
provided by the Company to the Underwriter for use in connection with the
offering and sale of the Shares pursuant to Rule 434 under the Act together are
not materially different from the prospectus included in the Registration
Statement (exclusive of any information deemed a part thereof pursuant to Rule
434(d)).
(d) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Act, and each registration statement
filed pursuant to Rule 462(b) under the Act, if any, complied when so filed in
all material respects with the Act, and did not 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, in the light of the circumstances
under which they were made, not misleading.
(e) Each of the Company and its Significant Subsidiaries
(as defined in Rule 405 under the Act) has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its jurisdiction
of incorporation and has the corporate power and authority to carry on its
business as it is currently being conducted and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(f) Except as otherwise disclosed in the Registration
Statement, there are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued
by the Company or any of its subsidiaries relating to or entitling any person
to purchase or otherwise to acquire any shares of the capital stock of the
Company or any of its subsidiaries.
(g) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and,
except as otherwise set forth in the Prospectus and except as provided pursuant
to that certain Xxxxxxx and Restated Credit Agreement, dated as of August 7,
1997, among the Company, Xxxx, The Xxxxx Manhattan Bank, as Agent, and certain
lenders named therein, all of the outstanding capital stock of each Significant
Subsidiary (other than a subsidiary organized under the laws of the People's
Republic of China) are owned, directly or indirectly, by the Company, free and
clear of any security interest, claim, lien, encumbrance or adverse interest of
any nature.
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(h) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights; and the
Company Additional Shares have been duly authorized and, when issued and
delivered to the Underwriter against payment therefor as provided by this
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Company Additional Shares will not be subject to any
preemptive or similar rights.
(i) The authorized capital stock of the Company,
including the Common Stock, conforms in all material respects as to legal
matters to the description thereof contained in the Prospectus.
(j) Neither the Company nor any of its Significant
Subsidiaries is in violation of its respective charter or by-laws or in default
in the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any other
agreement, indenture, mortgage, lease or instrument material to the conduct of
the business of the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, except where any such
violation or default would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(k) The execution, delivery and performance of this
Agreement, compliance by the Company and Xxxx with all the provisions hereof
and the consummation of the transactions contemplated hereby will not require
any consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except such as may be
required under the securities or Blue Sky laws of the various states) and will
not conflict with or constitute a breach of any of the terms or provisions of,
or a default under the charter or by-laws of the Company or any of its
subsidiaries or, except where a conflict or breach would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole, any
agreement, indenture or other instrument to which it or any of its subsidiaries
is a party or by which it or any of its subsidiaries or their respective
property is bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any of its
subsidiaries or their respective property.
(l) Except as otherwise set forth in the Prospectus,
there are no material legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any of their
respective property is the subject, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated. No contract or
document of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement is
not so described or filed as required.
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(m) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), nor
any federal or state law relating to discrimination in the hiring, promotion or
pay of employees nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the rules and regulations promulgated thereunder, which
in each case could reasonably be expected to result in any material adverse
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole.
(n) Each of the Company and its subsidiaries has such
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its respective
properties and to conduct its business except for such permits the absence of
which could not reasonably be expected to result in a material adverse effect
on the business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole; each of the Company and its
subsidiaries has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit;
and, except as described in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company or any of its
subsidiaries.
(o) Except as otherwise set forth in the Prospectus or
such as are not material to the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a whole,
each of the Company and its subsidiaries has good and indefeasible title to all
property and assets described in the Registration Statement as being owned by
it, free and clear of all liens, claims, encumbrances and restrictions except
liens for taxes not yet due and payable. All material leases to which the
Company or any of its subsidiaries is a party are valid and binding and no
default has occurred or is continuing thereunder which could reasonably be
expected to result in any material adverse change in the business, prospects,
financial condition or results of operation of the Company and its subsidiaries
taken as a whole, and the Company and its subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of them is a party as
lessee with such exceptions as do not materially interfere with the use made by
the Company or such subsidiary.
(p) Each of the Company and its subsidiaries maintains
reasonably adequate insurance.
(q) Xxxxxx Xxxxxxxx LLP is an independent public
accountant with respect to the Company and its subsidiaries as required by the
Act.
(r) The financial statements, together with related
schedules and notes, forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto),
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present fairly in all material respects the consolidated financial position,
results of operations and cash flows of the Company and its subsidiaries on the
basis stated in the Registration Statement at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and data
set forth in the Registration Statement and the Prospectus (and any amendment
or supplement thereto) is, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the internal
records of the Company and its subsidiaries.
(s) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(t) No holder of any security of the Company has any
right to require registration of shares of Common Stock or any other security
of the Company other than rights which have been exercised or effectively
waived in connection with the offering of the Shares pursuant to this
Agreement.
(u) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
SECTION 7. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder represents and warrants to the
Underwriter that:
(a) Subject to the distribution by each of HM/Xxxx
Partners, L.P., HM/Connectors, L.P., HM/Xxxx/DB Partners, L.P., HM/Xxxx/TCL
Partners, L.P. and HM/Xxxx/FC Partners, L.P. of all of the shares of Common
Stock owned of record by each such entity prior to the Closing, such Selling
Stockholder shall be the lawful owner of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement, and on the Closing Date and, if
applicable, the Option Closing Date, will have good and clear title to all
Shares to be sold on such date, free of all restrictions on transfer, liens,
encumbrances, security interests and claims whatsoever.
(b) Upon delivery of and payment for the Shares to be
sold by such Selling Stockholder pursuant to this Agreement, good and clear
title to such Shares will pass to the Underwriter, free of all restrictions on
transfer, liens, encumbrances, security interests and claims whatsoever.
(c) Such Selling Stockholder has, and on the Closing Date
and, if applicable, the Option Closing Date, will have, full legal right, power
and authority to enter into this Agreement and to sell, assign, transfer and
deliver the Shares in the manner provided herein. This Agreement has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder enforceable in accordance
with its terms, except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and except
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as the enforceability hereof may be limited by bankruptcy, rehabilitation,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and by general principles of equity.
(d) Such Selling Stockholder has not taken, and will not
take, directly or indirectly, any action designed to, or which might reasonably
be expected to, cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Shares
pursuant to the distribution contemplated by this Agreement, and other than as
permitted by the Act, such Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares.
(e) The execution, delivery and performance of this
Agreement by such Selling Stockholder, compliance by such Selling Stockholder
with all the provisions hereof and the consummation of the transactions
contemplated hereby will not require any consent, approval, authorization or
other order of any court, regulatory body, administrative agency or other
governmental body (except such as may be required under the Act, state
securities laws or Blue Sky laws) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under, any
organizational documents of such Selling Stockholder, if applicable, or any
material agreement, indenture or other instrument to which any Selling
Stockholder is a party or by which such Selling Stockholder or property of such
Selling Stockholder is bound, or violate or conflict with any laws,
administrative regulation or ruling or court decree applicable to such Selling
Stockholder or property of such Selling Stockholder other than such violations
or conflicts which would not, individually or in the aggregate, have an adverse
effect on the transactions contemplated by this Agreement.
(f) The information in the Registration Statement under
the caption "Principal and Selling Stockholders," which specifically relates to
such Selling Stockholder does not, and will not on the Closing Date and, if
applicable, the Option Closing Date, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(g) At any time during the period described in Section
5(e) hereof, if there is any change in the information referred to in Section
7(f) above, such Selling Stockholder will immediately notify you of such
change.
SECTION 8. Indemnification.
(a) The Company and Xxxx jointly and severally agree to
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading;
11
12
provided that the Company and Xxxx shall not be liable in any such case to the
extent that any such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Underwriter furnished in
writing to the Company or Xxxx by or on behalf of the Underwriter through you
expressly for use therein; provided further that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of the Underwriter or any person controlling the Underwriter from which
the person asserting any such loss, claim, damage or liability purchased Shares
if a copy of the Prospectus (as amended or supplemented if the Company or Xxxx
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of the Underwriter, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of such Shares
to such person and the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities.
The Company acknowledges and agrees that the only information furnished by the
Underwriter to the Company for inclusion in the Registration Statement or the
Prospectus consists of the information set forth in the last paragraph of the
front cover page of the Prospectus (insofar as such information relates to the
Underwriter), legends required by Item 502(d) of Regulation S-K under the Act
and the information in the [_____] and [_____] paragraphs under the caption
"Plan of Distribution" in the Prospectus.
(b) Each Selling Stockholder agrees, severally and not
jointly, to indemnify and hold harmless the Underwriter and each person, if
any, who controls the Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such persons but only with reference to information
included in, or omissions from, the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus made in reliance upon and in conformity with written
information furnished to the Company or the Underwriter by such Selling
Stockholder, directly or through such Selling Stockholder's representatives.
Notwithstanding the foregoing, the aggregate liability of any Selling
Stockholder pursuant to this Section 8(b) shall be limited to an amount equal
to the total proceeds (before deducting expenses) received by such Selling
Stockholder from the Underwriter from the sale of the Shares sold by such
Selling Stockholder hereunder.
(c) The Underwriter agrees to indemnify and hold harmless
the Company, the Selling Stockholders, Xxxx, their respective directors, the
Company's officers who sign the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from the
Company, Xxxx and the Selling Stockholders to the Underwriter but only with
reference to information relating to the Underwriter furnished in writing by or
on behalf of the Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus.
(d) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to this Section 8
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall assume the defense thereof,
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13
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses. Any indemnified party shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the employment of such counsel
shall have been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party shall have failed to assume the defense and employ
counsel or (iii) the named parties to any such action (including any impleaded
parties) include both the indemnified party and the indemnified party and the
indemnified party shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional
to those available to the indemnifying party (in which case the indemnifying
party shall not have the right to assume the defense of such action on behalf
of such indemnified party). In any such case, the indemnifying party shall not,
in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for (i) the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for the
Underwriter and all persons, if any, who control the Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, (ii)
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and all persons, if any, who control the Company within
the meaning of either such Section and (iii) the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and all such reasonable
fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriter and such control persons of the
Underwriter, such firm shall be designated in writing by the Underwriter. In
the case of any such separate firm for the Company, Xxxx and their respective
directors, officers and control persons, such firm shall be designated in
writing by the Company. In the case of any such separate firm for the Selling
Stockholders and such control persons of any Selling Stockholders, such firm
shall be designated in writing by their attorney-in-fact named on the signature
page of this Agreement. No indemnifying party shall be liable for any
settlement of any such action effected without the written consent of the
indemnifying party, but if settled with the written consent of the indemnifying
party, each indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement. Notwithstanding the immediately preceding sentence, if in any case
where the fees and expenses of counsel are at the expense of the indemnifying
party and an indemnified party shall have requested the indemnifying party to
reimburse the indemnified party for such fees and expenses of counsel as
incurred, such indemnifying party agrees that it shall be liable for any
settlement of any action effected without its written consent if (i) such
settlement is entered into more than 20 business days after the receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall have failed to reimburse the indemnified party in accordance with such
request for reimbursement (other than the payment of amounts being disputed in
good faith) prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject
13
14
matter of such proceeding and does not contain a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) In order to provide for just and equitable
contribution in circumstances in which the indemnity provided for in this
Section 8 is for any reason held to be wholly or partially unenforceable by an
indemnified party although applicable in accordance with its terms, each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments subject to
indemnification pursuant hereto (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Selling Stockholders
or Xxxx on the one hand and the Underwriter on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, the Selling Stockholders, Xxxx and the
Underwriter in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the Selling Stockholders, Xxxx and the Underwriter shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders and
the total underwriting discounts and commissions received by the Underwriter,
bear to the total price to the public of the Shares, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company, the Selling Stockholders, Xxxx and the Underwriter shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the Company, the Selling Stockholders, Xxxx or the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders, Xxxx and the Underwriter agree
that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
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15
(f) Each Selling Stockholder hereby designates the
Company, 000 Xxxxx Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, as its authorized
agent, upon which process may be served in any action which may be instituted
in any state or federal court in the State of New York by the Underwriter, any
director or officer of the Underwriter or any person controlling the
Underwriter asserting a claim for indemnification or contribution under or
pursuant to this Section 8, and each Selling Stockholder will accept the
jurisdiction of such court in such action, and waives, to the fullest extent
permitted by applicable law, any defense based upon lack of personal
jurisdiction or venue. A copy of any such process shall be sent or given to
such Selling Stockholder, at the address for notices specified in Section 12
hereof.
SECTION 9. Conditions of the Underwriter's Obligations. The
obligation of the Underwriter to purchase the Shares under this Agreement is
subject to the satisfaction or waiver of each of the following conditions:
(a) All the representations and warranties of the
Company, the Selling Stockholders and Xxxx contained in this Agreement shall be
true and correct on the Closing Date or the applicable Option Closing Date, as
the case may be, with the same force and effect as if made on and as of the
Closing Date or the applicable Option Closing Date, as the case may be.
(b) The Registration Statement shall have become
effective not later than 5:00 P.M. (and in the case of any registration
statement filed pursuant to Rule 462(b) under the Act, not later than 10:00
P.M.), New York City time, on the date of this Agreement or at such later date
and time as you may approve in writing, and at the Closing Date or the
applicable Option Closing Date, as the case may be, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet
included in the Registration Statement and the Prospectus, there shall not have
been any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in the
earnings, affairs or business prospects, whether or not arising in the ordinary
course of business, of the Company, (ii) since the date of the latest balance
sheet included in the Registration Statement and the Prospectus there shall not
have been any change, or any development involving a prospective material
adverse change, in the capital stock or in the long-term debt of the Company
from that set forth in the Registration Statement and Prospectus, (iii) the
Company and its subsidiaries shall have no liability or obligation, direct or
contingent, which is material to the Company and its subsidiaries, taken as a
whole, other than those reflected in the Registration Statement and the
Prospectus, (iv) on the Closing Date or the applicable Option Closing Date, as
the case may be, you shall have received a certificate dated the Closing Date,
signed by Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx, in their respective
capacities as the President and Chief Operating Officer and Senior Vice
President and Chief Financial Officer of the Company, confirming the matters
set forth in paragraphs (a), (b) and (c) of this Section 9 and (v) on the
Closing Date, you shall have received a certificate dated the Closing Date
signed by the Company as the attorney-in-fact for the Selling Stockholders (the
"Attorney-in-Fact") in its capacity as such Attorney-in-Fact,
15
16
confirming that the representations and warranties of the Selling Stockholders
contained in this Agreement are true and correct as if made on and as of the
Closing Date.
(d) You shall have received on the Closing Date or the
applicable Option Closing Date, as the case may be, an opinion (satisfactory to
you and your counsel), dated the Closing Date or the applicable Option Closing
Date, as the case may be, of Xxxx, Gotshal & Xxxxxx LLP, counsel for the
Company and the Selling Stockholders, in the form attached hereto as Annex II.
(e) You shall have received on the Closing Date or the
applicable Option Closing Date, as the case may be, an opinion (satisfactory to
you and your counsel), dated the Closing Date or the applicable Option Closing
Date, as the case may be, of X. Xxxxxx XxXxxx, Esq., Secretary and General
Counsel of the Company, in the form attached hereto as Xxxxx XXX.
The opinions of Xxxx, Xxxxxxx & Xxxxxx LLP and X. Xxxxxx XxXxxx, Esq.
that are described in Xxxxxxx XX and III shall be rendered to you at the
request of the Company, the Selling Stockholders and Xxxx, and shall so state
therein.
(f) You shall have received on the Closing Date or the
applicable Option Closing Date, as the case may be, an opinion, dated the
Closing Date or the applicable Option Closing Date, as the case may be, of
Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriter, as to the matters referred
to in clauses (3) (except with respect to preemptive rights), (4) and (11) (but
only with respect to the statements under the caption "Description of Capital
Stock") of Xxxxx XX. Such counsel shall further state that no facts have come
to the attention of such counsel which lead such counsel to believe that the
Registration Statement, on the effective date thereof, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, on the date thereof or on the date of such opinion,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel shall express no
view with respect to the financial statements and related notes, the financial
statement schedules and the other financial and accounting data included in the
Registration Statement or Prospectus). In making such statement, such counsel
may state that their beliefs are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification except as specified.
(g) You shall have received letters on and as of the date
hereof and on and as of the Closing Date and any Option Closing Date in form
and substance satisfactory to you, from Xxxxxx Xxxxxxxx LLP, independent public
accountants, with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(h) The Company shall have delivered to you the
agreements specified in the last paragraph of Section 2 hereof.
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17
(i) The Company, Xxxx and the Selling Stockholders, as
applicable, shall not have failed at or prior to the Closing Date or the
applicable Option Closing Date, as the case may be, to perform or comply with
any of the agreements herein contained and required to be performed or complied
with by the Company or the Selling Stockholders at or prior to the Closing Date
or the applicable Option Closing Date, as the case may be.
The obligation of the Underwriter to purchase any Additional Shares
hereunder is subject to the delivery to the Underwriter on the applicable
Option Closing Date of such additional documents as the Underwriter may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of such Additional Shares and other matters related
to the issuance of such Additional Shares.
SECTION 10. Effective Date of Agreement and Termination. This
Agreement shall become effective upon the later of (i) execution of this
Agreement and (ii) when oral notification of the effectiveness of the
Registration Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or
development involving a prospective material adverse change in the condition,
financial or otherwise, of the Company or any of its subsidiaries or the
earnings, affairs, or business prospects of the Company or any of its
subsidiaries, whether or not arising in the ordinary course of business, which
would, in your judgment, make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and adverse and would,
in your judgment, make it impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ Stock Market or limitation on prices for
securities on any such exchange or National Market System, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects, or will materially and adversely
affect, the business or operations of the Company and its subsidiaries, taken
as a whole, (v) the declaration of a banking moratorium by either federal or
New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal
affairs which in your opinion has a material adverse effect on the financial
markets in the United States.
SECTION 11. Agreements of the Selling Stockholders. Each Selling
Stockholder, severally but not jointly, agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes with
respect to the Shares to be sold by such Selling Stockholder;
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(b) To use their commercially reasonable efforts to do
and perform all things required or necessary to be done to satisfy all
conditions precedent to the delivery of the Shares; and
(c) That the Attorney-in-Fact may make any and all
amendments to this Agreement as the Attorney-in- Fact deems necessary or
advisable.
SECTION 12. Miscellaneous. Notices given pursuant to any
provision of this Agreement shall be addressed as follows: (a) if to the
Company or the Selling Stockholders, to Xxxx Electronics Corp., 000 Xxxxx
Xxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx and (b) if
to the Underwriter, to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in
any case to such other address as the person to be notified may have requested
in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders, Xxxx,
any of their respective officers and directors, and of the Underwriter set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of the Underwriter or by or on behalf of the Company or
the Selling Stockholders, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Shares and payment
for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriter because of
any failure or refusal on the part of the Company, the Selling Stockholders or
Xxxx to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company agrees to reimburse the Underwriter for all
out-of-pocket expenses (including the fees and disbursements of counsel)
reasonably incurred by it.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, Xxxx, the Underwriter, any controlling persons referred to herein
and their respective successors and assigns, all as and to the extent provided
in this Agreement, and no other person shall acquire or have any right under or
by virtue of this Agreement. The term "successors and assigns" shall not
include a purchaser of any of the Shares from the Underwriter merely because of
such purchase.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company, Xxxx, the Selling Stockholders and the Underwriter.
Very truly yours,
XXXX ELECTRONICS CORP.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
XXXX ELECTRONICS GROUP, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE I HERETO, ACTING SEVERALLY
By: XXXX ELECTRONICS CORP., Acting as
Attorney-in-fact for such
Selling Stockholders
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
20
SCHEDULE I
Number of Number of
Firm Shares Additional
to be Sold Shares
-------------- to be Sold
-------------
SELLING STOCKHOLDERS
--------------------
Xxxxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx Xxxxxxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx X. Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx X. Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CES Management Group, Inc. . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx and Xxxx Xxxxxxxxxxx Family Foundation . . . . . . . . . . . . . . .
CIGNA Property & Casualty Insurance Co. . . . . . . . . . . . . . . . . . . .
Electronic Data Systems Corp. . . . . . . . . . . . . . . . . . . . . . . . .
X.X. Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxxxx X. Xxxx Xx. Trust Estate . . . . . . . . . . . . . . . . . . . . .
Xxxxxxxx Xxxx Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx Xxxx Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxx Xxxx -- Xxxxxxxx Xxxxxx (Xx X. Xxxx, Xx.) . . . . . . . . . . . . . . .
Xxxxx Xxxx Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lone Star Liquidating Trust . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxx Xxxx -- Xxxxx Trusts . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxx Financial Group, LLC . . . . . . . . . . . . . . . . . . . . . . . . . .
Insurance Company of North America . . . . . . . . . . . . . . . . . . . . .
Lily Holding Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx Venture Partners II, L.P. . . . . . . . . . . . . . . . . . . . . . .
National Fidelity Life Insurance Company . . . . . . . . . . . . . . . . . .
Schusterman/HM Investments . . . . . . . . . . . . . . . . . . . . . . . . .
SGW Investments (U.S.A.), Inc. . . . . . . . . . . . . . . . . . . . . . . .
Swiss American Corporation . . . . . . . . . . . . . . . . . . . . . . . . .
The Combined Master Retirement Trust . . . . . . . . . . . . . . . . . . . .
The Long-Term Credit Bank of Japan, Ltd. . . . . . . . . . . . . . . . . . .
The Ohio National Life Insurance Co. . . . . . . . . . . . . . . . . . . . .
The Prudential Insurance Company of America . . . . . . . . . . . . . . . . .
Transpac Ventures 1, Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . .
Wand/HMC Investments L.P. . . . . . . . . . . . . . . . . . . . . . . . . . .
Wabash Life Insurance Company . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
==========
21
ANNEX I
REQUIRED STOCKHOLDER LOCK-UPS
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
XX/Xxxx/DB Partners, L.P.
HM/Xxxx/FC Partners, L.P.
HM/Connectors, L.P.
HM/Xxxx/TCL Partners, L.P.
HM/Xxxx Partners, L.P.
Xxxxxxx X. Xxxxxxxxxxxx
Xxxx X. Xxxxx
Xxxxxxxxx Xxxxxxxx Xxxxx 1993 Trust
Xxxx X. Xxxxx 1984 Trust
Xxxx X. Xxxxx 1984 Trust
Xxxxxx X. Xxxxx 1984 Trust
Xxxxxx X. Xxxxx, Xx. 1984 Trust
Xxxxxxx X. Xxxxx 1992 Trust
Xxxx Xxxx
Xxxx X. XxXxxx--Trustee & General Partner; X. Xxxxxx XxXxxx--Trustee
X. Xxxxxx XxXxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxx Xxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxx
Xxxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxx
The Xxxxxxx X. Xxxx 1992 Trust
Xxxx X. Xxxx, XX Trustee
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
22
XXXXX XX
OPINION OF WEIL, GOTSHAL & XXXXXX LLP
[TO BE ATTACHED.]
23
XXXXX XXX
OPINION OF X. XXXXXX XXXXXX
[TO BE ATTACHED.]
