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EXHIBIT 1.1
4,000,000 Shares
The Source Information Management Company
Common Stock
UNDERWRITING AGREEMENT
, 1999
CIBC World Markets, Corp.
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c/o CIBC World Markets, Corp.
CIBC World Markets Tower
World Financial Center
New York, New York 10281
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
The Source Information Management Company, a Missouri
corporation (the "Company"), and Xxxxxx X. XxXxxxx, Xxxxx X. Xxxxxx, S. Xxxxxx
Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxx (collectively,
the "Selling Stockholders"), propose, subject to the terms and conditions
contained herein, to sell to you and the other underwriters named on Schedule I
to this Agreement (the "Underwriters"), for whom you are acting as
Representatives (the "Representatives"), an aggregate of 4,000,000 shares (the
"Firm Shares") of the Company's Common Stock, $0.001 par value (the "Common
Stock"). Of the 4,000,000 Firm Shares, 3,000,000 are to be issued and sold by
the Company and 1,000,000 are to be sold by the Selling Stockholders. The
respective amounts of the Firm Shares to be purchased by each of the several
Underwriters are set forth opposite their names on Schedule I hereto. In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional 600,000 shares (the "Option Shares") of Common
Stock from it for the purpose of covering over-allotments in connection with the
sale of the Firm Shares. The Firm Shares and the Option Shares are together
called the "Shares."
1. Sale and Purchase of the Shares.
On the basis of the representations, warranties and agreements
contained in, and subject to the terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a price of
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$_____ per share (the "Initial Price"), the number of Firm Shares set forth
opposite the name of such Underwriter under the column "Number of Firm Shares to
be Purchased from the Company" on Schedule I to this Agreement, subject to
adjustment in accordance with Section 11 hereof. The Selling Stockholders agree
to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Selling Stockholders, at the
"Initial Price", the number of Firm Shares set forth opposite the name of such
Underwriter under the column "Number of Firm Shares to be Purchased from the
Selling Stockholders" on Schedule I to this Agreement, subject to adjustment in
accordance with Section 11 hereof.
(b) The Company grants to the several Underwriters an
option to purchase, severally and not jointly, all or any part of the Option
Shares at the Initial Price. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage (adjusted by the Representatives to
eliminate fractions) of the total number of Option Shares to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Shares. Such option
may be exercised only to cover over-allotments in the sales of the Firm Shares
by the Underwriters and may be exercised in whole or in part at any time on or
before 12:00 noon, New York City time, on the business day before the Firm
Shares Closing Date (as defined below), and from time to time thereafter within
30 days after the date of this Agreement, in each case upon written or
telegraphic notice, or verbal or telephonic notice confirmed by written or
telegraphic notice, by the Representatives to the Company no later than 12:00
noon, New York City time, on the business day before the Firm Shares Closing
Date or at least two business days before the Option Shares Closing Date (as
defined below), as the case may be, setting forth the number of Option Shares to
be purchased and the time and date (if other than the Firm Shares Closing Date)
of such purchase.
2. Delivery and Payment. Delivery by the Company and the
Selling Stockholders of the Firm Shares to the Representatives for the
respective accounts of the Underwriters, and payment of the purchase price by
wire transfer in same-day funds, certified or official bank check or checks
payable in New York Clearing House (same day) funds drawn to the order of the
Company for the shares purchased from the Company and to the Selling
Stockholders for the shares purchased from the Selling Stockholders, against
delivery of the respective certificates therefor to the Representatives, shall
take place at the offices of CIBC World Markets, Corp. at CIBC World Markets
Tower, World Financial Center, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York
City time, on the third business day following the date of this Agreement, or at
such time on such other date, not later than 10 business days after the date of
this Agreement, as shall be agreed upon by the Company and the Representatives
(such time and date of delivery and payment are called the "Firm Shares Closing
Date").
In the event the option with respect to the Option Shares is
exercised, delivery by the Company of the Option Shares to the Representatives
for the respective accounts of the Underwriters and payment of the purchase
price by certified or official bank check or checks payable in New York Clearing
House (same day) funds to the Company shall take place at the offices of CIBC
World Markets, Corp. specified above at the time and on the date (which may be
the same date as, but in no event shall be earlier than, the Firm Shares Closing
Date) specified in the notice referred to in Section 1(b) (such time and date of
delivery and payment are called the
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"Option Shares Closing Date"). The Firm Shares Closing Date and the Option
Shares Closing Date are called, individually, a "Closing Date" and, together,
the "Closing Dates."
Certificates evidencing the Shares shall be registered in such
names and shall be in such denominations as the Representatives shall request at
least two full business days before the Firm Shares Closing Date or, in the case
of Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
The Company and the Selling Stockholders hereby acknowledge
that the wire transfer by or on behalf of the Underwriters of the purchase price
for any Shares does not constitute closing of a purchase and sale of the Shares.
Only execution and delivery of a receipt for Shares by the Underwriters
indicates completion of the closing of a purchase of the Shares from the Company
or the Selling Stockholders. Furthermore, in the event that the Underwriters
wire funds to the Company or the Selling Stockholders prior to the completion of
the closing of a purchase of Shares from any of them, the Company and the
Selling Stockholders hereby acknowledge that until the Underwriters execute and
deliver a receipt for the Shares, by facsimile or otherwise, the Company and the
Selling Stockholders will not be entitled to the funds delivered by wire
transfer and shall return such funds to the Underwriters as soon as practicable
(by wire transfer of same day funds) upon demand. In the event that that the
closing of a purchase of Shares is not completed and the wired funds are not
returned by the Company and the Selling Stockholders to the Underwriters on the
sane day the wired funds were received by them, the Company and the Selling
Stockholders agree to pay to the Underwriters in respect of each day the wired
funds are not returned by it, in same-day funds, interest on the amount of such
wired funds in an amount representing the Underwriters' cost of financing as
reasonably determined by CIBC World Markets, Corp.
3. Registration Statement and Prospectus; Public
Offering.
(a) The Company has prepared and filed in conformity with
the requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the published rules and regulations thereunder (the "Rules") adopted
by the Securities and Exchange Commission (the "Commission") a registration
statement on Form S-2 (No. 333-76979), including a preliminary prospectus,
relating to the Shares, and has filed with the Commission such amendments
thereto as may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereof) and of the related
preliminary prospectus have heretofore been delivered by the Company to you.
(b) As used in this Agreement, the following terms have
the following meanings:
(i) "Effective Date" means each date on which
the Registration Statement and each post-effective amendment thereto, if any,
was declared effective by the Commission;
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(ii) "Prospectus" as used in this Agreement
means the prospectus in the form included in the Registration Statement
(including all documents incorporated by reference therein) on the Effective
Date or (A) if Rule 430(A) of the Rules is relied on, the term "Prospectus"
means the final prospectus filed with the Commission pursuant to Rule 424(b) of
the Rules and (B) if Rule 434 of the Rules is relied on, then (1) the term
"Prospectus" means the "prospectus subject to completion" (as such term is
defined in Rule 434(g) of the Rules) together with the term sheet (the "Term
Sheet") required under Rule 434(b) of the Rules and (2) the date of such
Prospectus shall be deemed to be the date of the Term Sheet;
(iii) "Preliminary Prospectus" as used in this
Agreement means any preliminary prospectus (as described in Rule 430 of the
Rules) included at any time as a part of the Registration Statement or filed
with the Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules; and
(iv) "Registration Statement" as used in this
Agreement means the initial registration statement (including all exhibits and
financial schedules), as amended at the time and on the "Effective Date and as
thereafter amended by post effective amendments, including (A) all financial
schedules and exhibits thereto, (B) all documents (or portions thereof)
incorporated by reference therein filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and (C) any information omitted therefrom
pursuant to Rule 430A under the Act and included in the Prospectus. If the
Company has filed an abbreviated registration statement to register additional
Shares pursuant to Rule 462(b) under the Rules (the "462(b) Registration
Statement") then any reference herein to the Registration Statement shall also
be deemed to include such 462(b) Registration Statement.
Any reference to the Registration Statement or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-2 under the Securities Act, as of the date
of the Registration Statement or the Prospectus, as the case may be. As used in
this Agreement, the term "Incorporated Documents" means the documents which at
the time are incorporated by reference in the Registration Statement, the
Prospectus or any amendment or supplement therein.
(c) The Company and the Selling Stockholders understand
that the Underwriters propose to make a public offering of the Shares, as set
forth in and pursuant to the Prospectus, as soon after the Effective Date and
the date of this Agreement as the Representatives deem advisable. The Company
and the Selling Stockholders hereby confirm that the Underwriters and dealers
have been authorized to distribute or cause to be distributed each Preliminary
Prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. Representations and Warranties of the Company. The
Company hereby represents and warrants to each Underwriter as follows:
(a) The Company meets the requirements for use of
Form S-2 under
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the Securities Act. On the Effective Date, the Registration Statement complied,
and on the date of the Prospectus, the date any post-effective amendment to the
Registration Statement becomes effective, the date any supplement or amendment
to the Prospectus is filed with the Commission and each Closing Date, the
Registration Statement and the Prospectus (and any amendment thereof or
supplement thereto) will comply, in all material respects, with the applicable
provisions of the Securities Act and the Rules and the Exchange Act and the
rules and regulations of the Commission thereunder (the "Exchange Act Rules").
The Registration Statement did not, as of the Effective Date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and on the other dates referred to above neither the Registration
Statement nor the Prospectus, nor any amendment thereof or supplement thereto,
will contain any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading. When any related preliminary prospectus was
first filed with the Commission (whether filed as part of the Registration
Statement or any amendment thereto or pursuant to Rule 424(a) of the Rules) and
when any amendment thereof or supplement thereto was first filed with the
Commission, such preliminary prospectus as amended or supplemented complied in
all material respects with the applicable provisions of the Securities Act and
the Rules and did not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading.
(b) The Incorporated Documents heretofore filed,
when they were filed (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material respects with
the requirements of the Exchange Act and the Exchange Act Rules; and no such
document when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained any 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.
Notwithstanding the foregoing, none of the
representations and warranties in paragraph 4(a) above shall apply to statements
in, or omissions from, the Registration Statement or the Prospectus made in
reliance upon, and in conformity with, information herein or otherwise furnished
in writing by the Representatives on behalf of the several Underwriters for use
in the Registration Statement or the Prospectus. With respect to the preceding
sentence, the Company acknowledges that the only information furnished in
writing by the Representatives on behalf of the several Underwriters for use in
the Registration Statement or the Prospectus is the paragraph with respect to
stabilization on the inside front cover page of the Prospectus and the
statements contained under the caption "Underwriting" in the Prospectus.
(c) The Registration Statement is effective under
the Securities Act and no stop order preventing or suspending the effectiveness
of the Registration Statement or suspending or preventing the use of the
Prospectus has been issued and no proceedings for that purpose have been
instituted or are threatened under the Securities Act; any required filing of
the Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules
has been or will be made in the manner and within the time period required by
such Rule 424(b).
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(d) The financial statements of the Company, U.S.
Marketing Services, Inc., Brand Manufacturing Corporation and T.C.E. Corporation
(including all notes and schedules thereto) included or incorporated by
reference in the Registration Statement and Prospectus present fairly the
financial position, the results of operations, the statements of cash flows and
the statements of stockholders' equity and the other information purported to be
shown therein of such companies at the respective dates and for the respective
periods to which they apply; and such financial statements and related schedules
and notes have been prepared in conformity with generally accepted accounting
principles, consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of the results for such periods
have been made. The summary and selected financial data included in the
Prospectus present fairly the information shown therein as at the respective
dates and for the respective periods specified and the summary and selected
financial data have been presented on a basis consistent with the consolidated
financial statements so set forth in the Prospectus and other financial
information. The sections entitled "Summary Consolidated Historical and Pro
Forma Financial Information", "Selected Consolidated Financial Information" and
"Unaudited Consolidated Pro Forma Financial Information" included in the
Prospectus present fairly the information shown therein at the respective dates
and for the respective periods. specified and have been presented on a basis
consistent with the financial statements so included or incorporated by
reference in the Prospectus and other financial information and the Company's
audited financial statements not included or incorporated by reference in the
Prospectus. The pro forma balance sheet and statement of operations data in the
Prospectus have been prepared in accordance with the applicable Rules and
include all adjustments necessary for a fair presentation of the pro forma
financial position and results of operations of the Company as of the dates and
for the periods to which they apply. Except as otherwise expressly specified in
the Registration Statement or the Prospectus, such financial statements are in
accordance with the books and records of the Company in all material respects.
No other financial statements are required by the applicable form of the
Registration Statement or the Prospectus or otherwise to be included or
incorporated by reference in the Registration Statement or the Prospectus.
(e) BDO Xxxxxxx, LLP and Ernst & Young LLP, whose
reports are filed with the Commission as a part of the Registration Statement,
are and, during the periods covered by their reports, were independent public
accountants as required by the Securities Act and the Rules.
(f) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Missouri.
Except as set forth on Exhibit 21.1 of the Registration Statement, the Company
has no subsidiary or subsidiaries and does not control, directly or indirectly,
any corporation, partnership, joint venture, association or other business
organization. Each of the Company's subsidiaries identified on Exhibit 21.1 of
the Registration Statement (the "Subsidiaries") is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation. The Company is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the nature of
the business conducted by it or location of the assets or properties owned,
leased or licensed by it requires such qualification, except for such
jurisdictions where the failure to so qualify would not have a material adverse
effect on the assets or properties, business, results of
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operations or financial condition of the Company (a "Material Adverse Effect").
Except as described in the Registration Statement and the Prospectus, the
Company does not own, lease or license any asset or property or conduct any
business outside the United States of America. The Company and each of its
Subsidiaries has all requisite corporate power and authority, and all necessary
authorizations, approvals, consents, orders, licenses, certificates and permits
of and from all governmental or regulatory bodies or any other person or entity
(collectively, the "Permits"), to own, lease and license its assets and
properties and conduct its business, all of which are valid and in full force
and effect, as described in the Registration Statement and the Prospectus,
except where the lack of such Permits would not have a Material Adverse Effect;
the Company and each of its Subsidiaries has fulfilled and performed in all
material respects all its material obligations with respect to such Permits and
no event has occurred that 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 Company thereunder. Except as may be required under the
Securities Act and state and foreign Blue Sky laws, no other Permits are
required to enter into, deliver and perform this Agreement and to issue and sell
the Shares.
(g) Each of the Company and its Subsidiaries owns or
possesses adequate and enforceable rights to use all trademarks, trademark
applications, trade names, service marks, copyrights, copyright applications,
licenses, know-how and other similar rights and proprietary knowledge
(collectively, "Intangibles") necessary for the conduct of its business. Neither
the Company nor any of its Subsidiaries has not received any notice of, or is
not aware of, any infringement of or conflict with asserted rights of others
with respect to any Intangibles.
(h) The Company and each of its Subsidiaries has
good and marketable title in fee simple to all items of real property and good
and marketable title to all personal property owned by it and any real property
and buildings held under lease by the Company and each of its Subsidiaries is
held by it under valid, existing and enforceable leases, free and clear of all
liens, encumbrances, claims, security interests and defects, except such as are
described in the Registration Statement and the Prospectus or would not have a
Material Adverse Effect.
(i) There are no litigation or governmental
proceedings to which the Company or its Subsidiaries is subject or which is
pending or, to the knowledge of the Company, threatened, against the Company or
any of its Subsidiaries, which might have a Material Adverse Effect, affect the
consummation of this Agreement or which is required to be disclosed in the
Registration Statement and the Prospectus that is not so disclosed.
(j) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
described therein, (a) there has not been any material adverse change with
regard to the assets or properties, business, results of operations or financial
condition of the Company; (b) neither the Company nor its Subsidiaries has not
sustained any loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or decree which would
have a Material Adverse Effect; and (c) since the date of the latest
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balance sheet included in the Registration Statement and the Prospectus, except
as reflected therein, neither the Company nor its Subsidiaries has not (i)
issued any securities or incurred any liability or obligation, direct or
contingent, for borrowed money, except such liabilities or obligations incurred
in the ordinary course of business, (ii) entered into any transaction not in the
ordinary course of business or (iii) declared or paid any dividend or made any
distribution on any shares of its stock or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any shares of its
stock.
(k) There is no document, contract or other
agreement of a character required to be described in the Registration Statement
or Prospectus or to be filed as an exhibit to the Registration Statement which
is not described or filed as required by the Securities Act or Rules. Each
description of a contract, document or other agreement in the Registration
Statement and the Prospectus accurately reflects in all respects the terms of
the underlying document, contract or agreement. Each agreement described in the
Registration Statement and Prospectus or listed in the Exhibits to the
Registration Statement is in full force and effect and is valid and enforceable
by and against the Company or the Subsidiary, as the case may be, in accordance
with its terms. Neither the Company nor the Subsidiary, if the Subsidiary is a
party, nor to the Company's knowledge, any other party is in default in the
observance or performance of any term or obligation to be performed by it under
any such agreement, and no event has occurred which with notice or lapse of time
or both would constitute such a default, in any such case which default or event
would have a Material Adverse Effect. No default exists, and no event has
occurred which with notice or lapse of time or both would constitute a default,
in the due performance and observance of any term, covenant or condition, by the
Company or the Subsidiary, if the Subsidiary is a party thereto, of any other
agreement or instrument to which the Company or the Subsidiary is a party or by
which the Company, the Subsidiary or their properties or business may be bound
or affected which default or event would have a Material Adverse Effect.
(l) Neither the Company nor any of its Subsidiaries
is not in violation of any term or provision of its charter or by-laws or of any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation would have a Material
Adverse Effect.
(m) Neither the execution, delivery and performance
of this Agreement by the Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate or accelerate the
due date of any payment due under, or conflict with or result in the breach of
any term or provision of, or constitute a default (or an event which with notice
or lapse of time or both would constitute a default) under, or require any
consent or waiver under, or result in the execution or imposition of any lien,
charge or encumbrance upon any properties or assets of the Company or its
Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or its Subsidiary is a party
or by which either the Company or its Subsidiaries or any of their properties or
businesses is bound, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation applicable to the Company or its Subsidiaries or
violate any provision of the charter or
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by-laws of the Company or its Subsidiaries, except for such consents or waivers
which have already been obtained and are in full force and effect.
(n) The Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization" in the Prospectus.
The certificates evidencing the Shares are in due and proper legal form and have
been duly authorized for issuance by the Company. All of the issued and
outstanding shares of Common Stock have been duly and validly issued and are
fully paid and nonassessable. There are no statutory preemptive or other similar
rights to subscribe for or to purchase or acquire any shares of Common Stock of
the Company or its Subsidiaries or any such rights pursuant to its Certificate
of Incorporation or by-laws or any agreement or instrument to or by which the
Company or any of its Subsidiaries is a party or bound. The Shares, when issued
and sold pursuant to this Agreement, will be duly and validly issued, fully paid
and nonassessable and none of them will be issued in violation of any preemptive
or other similar right. Except as disclosed in the Registration Statement and
the Prospectus, there is no outstanding option, warrant or other right calling
for the issuance of, and there is no commitment, plan or arrangement to issue,
any share of stock of the Company or its Subsidiaries or any security
convertible into, or exercisable or exchangeable for, such stock. The Common
Stock and the Shares conform in all material respects to all statements in
relation thereto contained in the Registration Statement and the Prospectus. All
outstanding shares of capital stock of each Subsidiary have been duly authorized
and validly issued, and are fully paid and nonassessable and are owned directly
by the Company or by another wholly owned subsidiary of the Company free and
clear of any security interests, liens, encumbrances, equities or claims, other
than those described in the Prospectus.
(o) Except as described in the Registration
Statement and the Prospectus, no holder of any security of the Company has the
right to have any security owned by such holder included in the Registration
Statement or to demand registration of any security owned by such holder during
the period ending 180 days after the date of this Agreement. Each director and
officer of the Company and the other stockholders requested by the
Representatives have agreed to a 180-day lock up and have delivered to the
Representatives enforceable written lock-up agreements in the form attached to
this Agreement ("Lock-Up Agreement").
(p) All necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares by the
Company. This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes and will constitute legal, valid and
binding obligations of the Company enforceable against the Company in accordance
with their respective terms, except (i) as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles and (ii) to the extent that rights to indemnity or
contribution under this Agreement may be limited by Federal and state securities
laws or the public policy underlying such laws.
(q) The Company or any of its Subsidiaries are not
involved in any labor dispute nor, to the knowledge of the Company, is any such
dispute threatened, which
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dispute would have a Material Adverse Effect. The Company is not aware of any
existing or imminent labor disturbance by the employees of any of its principal
suppliers or contractors which would have a Material Adverse Effect. The Company
is not aware of any threatened or pending litigation between the Company or its
Subsidiaries and any of its executive officers which, if adversely determined,
could have a Material Adverse Effect and has no reason to believe that such
officers will not remain in the employment of the Company.
(r) No transaction has occurred between or among the
Company and any of its officers or directors or five percent shareholders or any
affiliate or affiliates of any such officer or director or five percent
shareholders that is required to be described in and is not described in the
Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of any of the Shares.
(t) The Company and its Subsidiaries have filed all
Federal, state, local and foreign tax returns which are required to be filed
through the date hereof, or have received extensions thereof, and have paid all
taxes shown on such returns and all assessments received by them to the extent
that the same are material and have become due, and there are no tax audits or
investigations pending, which if adversely determined would have a Material
Adverse Effect; nor are there any material proposed additional tax assessments
against the Company and any of its Subsidiaries.
(u) The Common Stock is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act and is listed on the National
Association of Securities Dealers Automated Quotation ("Nasdaq") National Market
System and the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act or delisting the Common Stock from the Nasdaq National Market.
(v) The Company has complied with all of the
requirements and filed the required forms as specified in Florida Statutes
Section 517.075.
(w) The books, records and accounts of the Company
and its Subsidiaries accurately and fairly reflect, in reasonable detail, the
transactions in, and dispositions of, the assets of, and the results of
operations of, the Company and its Subsidiaries. The Company and each of its
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
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(x) The Company and its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are customary in the businesses in which they are engaged
or propose to engage after giving effect to the transactions described in the
Prospectus; and neither the Company nor any Subsidiary of the Company has reason
to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
have a Material Adverse Effect. Neither the Company nor any Subsidiary has not
been denied any insurance coverage which it has sought or for which it has
applied.
(y) Each approval, consent, order, authorization,
designation, declaration or filing of, by or with any regulatory, administrative
or other governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated required to be obtained or performed by the
Company (except such additional steps as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") or may be necessary to
qualify the Shares for public offering by the Underwriters under the state
securities or Blue Sky laws) has been obtained or made and is in full force and
effect.
(z) There are no affiliations with the NASD among
the Company's officers, directors or, to the best of the knowledge of the
Company, any five percent or greater stockholder of the Company, except as set
forth in the Registration Statement or otherwise disclosed in writing to the
Representatives of the Underwriters.
(aa) (i) Each of the Company and its Subsidiaries is
in compliance in all material respects with all rules, laws and regulation
relating to the use, treatment, storage and disposal of toxic substances and
protection of health or the environment ("Environmental Law") which are
applicable to its business; (ii) none of the Company or its Subsidiaries has
received any notice from any governmental authority or third party of an
asserted claim under Environmental Laws; (iii) each of the Company and its
Subsidiaries has received all permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its business and is in
compliance with all terms and conditions of any such permit, license or
approval; (iv) to the Company's knowledge, no facts currently exist that will
require the Company or its Subsidiaries to make future material capital
expenditures to comply with Environmental Laws; and (v) no property which is or
has been owned, leased or occupied by the Company or its Subsidiaries has been
designated as a Superfund site pursuant to the Comprehensive Environmental
Response, Compensation of Liability Act of 1980, as amended (42 U.S.C. Section
9601, et. seq.) or otherwise designated as a contaminated site under applicable
state or local law.
(bb) The Company is not and, after giving effect to
the offering and sale of the Shares and the application of proceeds thereof as
described in the Prospectus, will not be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
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(cc) The Company, its Subsidiaries or any other
person associated with or acting on behalf of the Company or its Subsidiaries
including, without limitation, any director, officer, agent or employee of the
Company or its Subsidiaries has, directly or indirectly, while acting on behalf
of the Company or its Subsidiaries (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; (iii) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any other unlawful
payment.
5. Representations and Warranties of the Selling
Stockholder. Each of the Selling Stockholders hereby represents and warrants to
each Underwriter as follows:
(a) Such Selling Stockholder has caused certificates
for the number of Shares to be sold by such Selling Stockholder hereunder to be
delivered to _______________ (the "Custodian"), endorsed in blank or with blank
stock powers duly executed, with a signature appropriately guaranteed, such
certificates to be held in custody by the Custodian for delivery, pursuant to
the provisions of this Agreement and an agreement dated ____________ among the
Custodian and the Selling Stockholders (the "Custody Agreement").
(b) Such Selling Stockholder has granted an
irrevocable power of attorney (the "Power of Attorney") to the person named
therein, on behalf of the Selling Stockholder, to execute and deliver this
Agreement and any other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the shares to be sold by the
Selling Stockholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the Power
of Attorney and the Lock-Up Agreement have each been duly authorized, executed
and delivered by or on behalf of each Selling Stockholder and, assuming due
authorization, execution and delivery by the other parties hereto, constitutes
the valid and legally binding agreement of such Selling Stockholder, enforceable
against the Selling Stockholder in accordance with its terms.
(d) The execution and delivery by the Selling
Stockholder of this Agreement and the performance by the Selling Stockholder of
its obligations under this Agreement (i) will not contravene any provision of
applicable law, statute, regulation or filing or any agreement or other
instrument binding upon the Selling Stockholder or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Selling
Stockholder, (ii) does not require any consent, approval, authorization or order
of or registration or filing with any court or governmental agency or body
having jurisdiction over it, except such as may be required by the Blue Sky laws
of the various states in connection with the offer and sale of the Shares which
have been or will be effected in accordance with this Agreement, (iii) does not
and will not violate any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Selling Stockholder or (iv) will
not result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Selling Stockholder pursuant to the terms of any
agreement or instrument to which the Selling Stockholder is a party
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or by which the Selling Stockholder may be bound or to which any of the property
or assets of the Selling Stockholder is subject.
(e) The Selling Stockholder has, and on the Firm
Shares Closing Date will have, valid and marketable title to the Shares to be
sold by such Selling Stockholder free and clear of any lien, claim, security
interest or other encumbrance, including, without limitation, any restriction on
transfer, except as otherwise described in the Registration Statement and
Prospectus.
(f) The Selling Stockholder has, and on the Firm
Shares Closing Date will have, full legal right, power and authorization, and
any approval required by law, to sell, assign, transfer and deliver the Shares
to be sold by such Selling Stockholder in the manner provided by this Agreement.
(g) Upon delivery of and payment for the Shares to
be sold by the Selling Stockholder pursuant to this Agreement, the several
Underwriters will receive valid and marketable title to such Shares free and
clear of any lien, claim, security interest or other encumbrance.
(h) All information relating to the Selling
Stockholder furnished in writing by such Selling Stockholder expressly for use
in the Registration Statement and Prospectus is, and on each Closing Date will
be, true, correct, and complete, and does not, and on each Closing Date will
not, contain any untrue statement of a material fact or omit to state any
material fact necessary to make such information not misleading.
(i) The Selling Stockholder has reviewed the
Registration Statement and Prospectus and, although such Selling Stockholder has
not independently verified the accuracy or completeness of all the information
contained therein, nothing has come to the attention of the Selling Stockholder
that would lead such Selling Stockholder to believe that (i) on the Effective
Date, the Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein in
order to make the statements made therein not misleading and (ii) on the
Effective Date the Prospectus contained and, on each Closing Date contains, no
untrue statement of a material fact or omitted or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, misleading.
(j) The sale of Shares by the Selling Stockholder
pursuant to this Agreement is not prompted by such Selling Stockholders'
knowledge of any material information concerning the Company which is not set
forth in the Prospectus.
(k) The Selling Stockholder has not taken and will
not take, directly or indirectly, any action designed to or that 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.
(l) The Selling Stockholder has no actual knowledge
that any
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representation or warranty of the Company set forth in Section 4 above is untrue
or inaccurate in any material respect.
(m) The representations and warranties of the
Selling Stockholder in the Custody Agreement are and on each Closing Date will
be, true and correct.
6. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters under this Agreement are several and not joint.
The respective obligations of the Underwriters to purchase the Shares are
subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has
become effective shall have been received by the Representatives and the
Prospectus shall have been timely filed with the Commission in accordance with
Section 7(a) of this Agreement.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or shall be in effect
and no order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information on the
part of the Commission (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to the satisfaction of
the Commission and the Representatives.
(c) The representations and warranties of the
Company and the Selling Stockholders contained in this Agreement and in the
certificates delivered pursuant to Section 6(d) shall be true and correct when
made and on and as of each Closing Date as if made on such date and the Company
and the Selling Stockholders shall have performed all covenants and agreements
and satisfied all the conditions contained in this Agreement required to be
performed or satisfied by them at or before such Closing Date.
(d) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and dated such
Closing Date, of the chief executive or chief operating officer and the chief
financial officer or chief accounting officer of the Company to the effect that
(i) the signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the representations and
warranties of the Company in this Agreement are true and correct on and as of
such Closing Date with the same effect as if made on such Closing Date and the
Company has performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by it at or
prior to such Closing Date, and (ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and to the best of their
knowledge, no proceedings for that purpose have been instituted or are pending
under the Securities Act.
(e) The Representatives shall have received on each
Closing Date a certificate, addressed to the Representatives and dated such
Closing Date, of the Selling Stockholders, to the effect that the Selling
Stockholders have carefully examined the Registration Statement, the Prospectus
and this Agreement and that the representations and warranties of the Selling
Stockholders in this Agreement are true and correct on and as of such Closing
Date with
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the same effect as if made on such Closing Date and the Selling Stockholders
have performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by it at or
prior to such Closing Date.
(f) The Representatives shall have received on the
Effective Date, at the time this Agreement is executed and on each Closing Date
a signed letter from BDO Xxxxxxx, LLP addressed to the Representatives and
dated, respectively, the Effective Date, the date of this Agreement and each
such Closing Date, in form and substance reasonably satisfactory to the
Representatives, confirming that they are independent accountants within the
meaning of the Securities Act and the Rules, that the response to Item 10 of the
Registration Statement is correct insofar as it relates to them and stating in
effect that:
(i) in their opinion the audited financial
statements and schedules, the unaudited interim financial statements
and pro forma financial statements included, and incorporated by
reference, in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Securities Act and the Rules;
(ii) on the basis of a reading of the
historical financial information included in the Registration Statement
and the Prospectus under the headings "Summary Consolidated Historical
and Pro Forma Financial Information" and "Selected Consolidated
Financial Information," carrying out certain procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect
to the comments set forth in such letter, a reading of the minutes of
the meetings of the stockholders and directors of the Company, and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company as to transactions
and events subsequent to the date of the latest audited financial
statements, except as disclosed in the Registration Statement and the
Prospectus, nothing came to their attention which caused them to
believe that:
(A) the historical financial information
included under the headings "Summary Consolidated Historical and Pro
Forma Financial Information" and "Selected Consolidated Financial
Information" included in the Registration Statement and the
Prospectus do not agree with the corresponding amounts in the
audited financial statements from which such amounts were derived;
(B) the unaudited interim financial
statements included in the Prospectus or included or incorporated by
reference in the Company's Quarterly Report on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and Exchange Act Rules or any material
modifications should be made for the unaudited interim financial
statements to be in conformity with generally accepted accounting
principles; or
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(C) with respect to the Company, there
were, at a specified date not more than five business days prior to
the date of the letter, any increases in the current liabilities and
long-term liabilities of the Company or any decreases in net income
or in working capital or the stockholders' equity in the Company, as
compared with the amounts shown on the Company's unaudited balance
sheet for the three months ended April 30, 1999 included in the
Registration Statement; and
(iii) they have performed certain other
procedures as may be permitted under Generally Acceptable Auditing Standards as
a result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the
Company) set forth in the Registration Statement and the Prospectus and
reasonably specified by the Representatives agrees with the accounting records
of the Company;
(iv) based upon the procedures set forth in
clauses (ii) and (iii) above and a reading of the amounts included in the
Registration Statement under the headings "Summary Consolidated Historical and
Pro Forma Financial Information", "Selected Consolidated Financial Information"
and "Unaudited Consolidated Pro Forma Financial Information" included in the
Registration Statement and Prospectus and a reading of the financial statements
from which certain of such data were derived, nothing has come to their
attention that gives them reason to believe that the "Summary Consolidated
Historical and Pro Forma Financial Information", "Selected Consolidated
Financial Information" and "Unaudited Consolidated Pro Forma Financial
Information" included in the Registration Statement and Prospectus do not comply
as to the form in all material respects with the applicable accounting
requirements of the Securities Act and the Rules or that the information set
forth therein is not fairly stated in relation to the financial statements
included in the Registration Statement or Prospectus from which certain of such
data was derived and are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement and Prospectus; and
(v) on the basis of a reading of the amounts
included or incorporated by reference in the Company's Current Reports on Form
8-K incorporated by reference in the Prospectus, and the amounts included in the
Registration Statement under the headings "Summary Consolidated Historical and
Pro Forma Financial Information" and "Unaudited Consolidated Pro Forma Financial
Information," carrying out certain specified procedures that would not
necessarily reveal matters of significance with respect to the comments set
forth in this paragraph (v), inquiries of certain officials of the Company and
its Subsidiaries who have responsibility for financial and accounting matters
and proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the unaudited consolidated pro forma
financial information, nothing came to their attention that caused them to
believe that the unaudited consolidated pro forma financial information do not
comply in form in all
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material respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X promulgated under the Securities Act or that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of such statements
References to the Registration Statement and the
Prospectus in this paragraph (f) are to such documents as amended and
supplemented at the date of the letter.
(g) The Representatives shall have received on each
Closing Date from Xxxxxxxxx Xxxxxxxx, LLP, counsel for the Company, an opinion,
addressed to the Representatives and dated such Closing Date, and stating in
effect that:
(i) Each of the Company and its Subsidiaries
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation. To the best of
such counsel's knowledge, the Company has no subsidiary and does not control,
directly or indirectly, any corporation, partnership, joint venture, association
or other business organization. Each of the Company and its Subsidiaries is duly
qualified and in good standing as a foreign corporation in each jurisdiction in
which the character or location of its assets or properties (owned, leased or
licensed) or the nature of its businesses makes such qualification necessary,
except for such jurisdictions where the failure to so qualify would not have a
Material Adverse Effect.
(ii) Each of the Company and its Subsidiaries
has all requisite corporate power and authority to own, lease and license its
assets and properties and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus and with respect to
the Company to enter into, deliver and perform this Agreement and to issue and
sell the Shares, other than those required under the Securities Act and state
and foreign Blue Sky laws.
(iii) The Company has authorized and issued
capital stock as set forth in the Registration Statement and the Prospectus
under the caption "Capitalization"; the certificates evidencing the Shares are
in due and proper legal form and have been duly authorized for issuance by the
Company; all of the outstanding shares of Common Stock of the Company have been
duly and validly authorized and issued and are fully paid and nonassessable and
none of them was issued in violation of any preemptive or other similar right.
The Shares when issued and sold pursuant to this Agreement will be duly and
validly issued, outstanding, fully paid and nonassessable and none of them will
have been issued in violation of any preemptive or other similar right. To the
best of such counsel's knowledge, except as disclosed in the Registration
Statement and the Prospectus, there are no preemptive rights or any restriction
upon the voting or transfer of any securities of the Company pursuant to the
Company's Certificate of Incorporation or by-laws or other governing documents
or any other instrument to which the Company is a party or by which it may be
bound. To the best of such counsel's knowledge, except as
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disclosed in the Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of stock of the Company or
any security convertible into, exercisable for, or exchangeable for stock of the
Company. The Common Stock and the Shares conform in all material respects to the
descriptions thereof contained in the Registration Statement and the Prospectus.
The issued and outstanding shares of capital stock of each of the Company's
Subsidiaries have been duly authorized and validly issued, and are fully paid
and nonassessable and are owned directly by the Company or by another wholly
owned subsidiary of the Company free and clear of any security interests, liens,
encumbrances, equities or claims, other than those contained in the Registration
Statement and the Prospectus.
(iv) Each of the Lock-Up Agreements executed
by the Company's stockholders, directors and officers has been duly and validly
delivered by such persons and constitutes the legal, valid and binding
obligation of each such person enforceable against each such person in
accordance with its terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
(v) All necessary corporate action has been
duly and validly taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and this Agreement constitutes the legal, valid and binding obligation
of the Company enforceable against the Company in accordance with their
respective terms except (A) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles and (B) to the extent that rights to indemnity or
contribution under this Agreement may be limited by Federal or state securities
laws or the public policy underlying such laws.
(vi) Neither the execution, delivery and
performance of this Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the issuance
and sale by the Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or result in
the breach of any term or provision of, or constitute a default (or any event
which with notice or lapse of time, or both, would constitute a default) under,
or require consent or waiver under, or result in the execution or imposition of
any lien, charge or encumbrance upon any properties or assets of the Company or
its Subsidiaries pursuant to the terms of any indenture, mortgage, deed trust,
note or other agreement or instrument of which such counsel is aware and to
which the Company or its Subsidiaries is a party or by which either the Company
or its Subsidiaries or any of their properties or businesses is bound, or any
franchise, license, permit, judgment, decree, order, statute, rule or regulation
of which such counsel is aware or
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violate any provision of the charter or by-laws of the Company or its
Subsidiaries.
(vii) To the best of such counsel's knowledge,
no default exists, and no event has occurred which with notice or lapse of time,
or both, would constitute a default, in the due performance and observance of
any term, covenant or condition by the Company of any indenture, mortgage, deed
of trust, note or any other agreement or instrument to which the Company is a
party or by which it or any of its assets or properties or businesses may be
bound or affected, where the consequences of such default would have a Material
Adverse Effect.
(viii) To the best of such counsel's knowledge,
the Company and its Subsidiaries are not in violation of any term or provision
of its charter or by-laws or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation, where the consequences of such violation
would have a Material Adverse Effect.
(ix) (A) Each of the Company and its
Subsidiaries is in compliance in all material respects with any and all
applicable Environmental Laws; (B) none of the Company or its Subsidiaries has
not received any notice from any governmental authority or third party of an
asserted claim under any Environmental Law; (C) each of the Company and its
Subsidiaries has received all permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its business and is in
compliance with all terms and conditions of any such permit, license or
approval, except where such failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of such
permits, licenses or other approvals would not, singly or in the aggregate, have
a Material Adverse Effect; and (D) no property which is or has been owned,
leased or occupied by the Company or its Subsidiaries has been designated as a
Superfund site pursuant to the Comprehensive Environmental Response,
Compensation of Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.), or otherwise designated as a contaminated site under applicable state or
local law.
(x) No consent, approval, authorization or
order of any court or governmental agency or regulatory body is required for the
execution, delivery or performance of this Agreement by the Company or the
consummation of the transactions contemplated hereby or thereby, except such as
have been obtained under the Securities Act and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the several Underwriters.
(xi) To the best of such counsel's knowledge,
there is no litigation or governmental or other proceeding or investigation,
before any court or before or by any public body or board pending or threatened
against, or involving the assets, properties or businesses of, the Company which
would have a Material Adverse Effect.
(xii) The statements in the Prospectus under
the captions "Description of Capital Stock," "Risk Factors - Sales of our shares
eligible for future sale could adversely affect our stock price", "Liquidity and
Capital Resources," and "Certain
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Related Transactions," insofar as such statements constitute a summary of
documents referred to therein or matters of law, are fair summaries in all
material respects and accurately present the information called for with respect
to such documents and matters. Accurate copies of all contracts and other
documents required to be filed as exhibits to, or described in, the Registration
Statement have been so filed with the Commission or are fairly described in the
Registration Statement, as the case may be.
(xiii) The Registration Statement, all
preliminary prospectuses and the Prospectus and each amendment or supplement
thereto (except for the financial statements and schedules and other financial
and statistical data included therein, as to which such counsel expresses no
opinion) comply as to form in all material respects with the requirements of the
Securities Act and the Rules; and the Incorporated Documents (except for the
financial statements and schedules and other financial and statistical data
included therein, as to which such counsel expresses no opinion) comply as to
form in all material respects with the requirements of the Exchange Act and the
Exchange Act Rules.
(xiv) The Registration Statement is effective
under the Securities Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are threatened, pending or contemplated. Any required filing
of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period required
by such Rule 424(b).
(xv) The Shares have been approved for listing
on the Nasdaq National Market.
(xvi) The capital stock of the Company conforms
in all material respects to the description thereof contained in the Prospectus
under the caption "Description of Capital Stock."
(xvii) The Company is not an "investment
company" or an entity controlled by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
To the extent deemed advisable by such counsel, they
may rely as to matters of fact on certificates of responsible officers of the
Company and public officials and on the opinions of other counsel satisfactory
to the Representatives as to matters which are governed by laws other than the
laws of the State of Missouri and the Federal laws of the United States;
provided that such counsel shall state that in their opinion the Underwriters
and they are justified in relying on such other opinions. Copies of such
certificates and other opinions shall be furnished to the Representatives and
counsel for the Underwriters.
In addition, such counsel shall state that such
counsel has participated in conferences with officers and other representatives
of the Company, representatives of the Representatives and representatives of
the independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus
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and related matters were discussed and, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except as specified in the foregoing opinion), on the basis of the
foregoing, no facts have come to the attention of such counsel which lead such
counsel to believe that the Registration Statement at the time it became
effective (except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel need
express no belief) contained any 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 as amended or
supplemented (except with respect to the financial statements, notes and
schedules thereto and other financial data, as to which such counsel need make
no statement) on the date thereof contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(h) The Representatives shall have received on the
Firm Shares Closing Date from ________________________, counsel for the Selling
Stockholders, an opinion, addressed to the Representatives and dated such
Closing Date, and stating in effect that:
(i) This Agreement has been duly and validly
executed and delivered by or on behalf of the Selling Stockholders.
(ii) This Agreement, the Custody Agreement,
the Power of Attorney and the Lock-Up Agreement each constitute the
legal, valid and binding obligation of the Selling Stockholders
enforceable against the Selling Stockholders in accordance with its
terms except (A) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles and (B) to the extent that rights to
indemnity or contribution under this Agreement may be limited by
Federal or state securities laws or the public policy underlying such
laws; and the Selling Stockholders have full legal right and authority
to enter into this Agreement and to sell, transfer and deliver in the
manner provided in this Agreement, the Shares to be sold by the Selling
Stockholders hereunder.
(iii) The transfer and sale by the Selling
Stockholders of the Shares to be sold by the Selling Stockholders as
contemplated by this Agreement will not conflict with, result in a
breach of, or constitute a default under any agreement or instrument
known to such counsel to which the Selling Stockholders are a party or
by which the Selling Stockholders or any of their properties may be
bound, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation.
(iv) All of the Selling Stockholders' rights
in the Shares to be sold by the Selling Stockholder pursuant to this
Agreement, have been transferred to the Underwriters who have severally
purchased such Shares pursuant to this Agreement, free and clear of
adverse claims, assuming for purposes of this opinion that the
Underwriters purchased the same in good faith without notice of any
adverse claims.
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(v) No consent, approval, authorization,
license, certificate, permit or order of any court, governmental or
regulatory agency, authority or body or financial institution is
required in connection with the performance of this Agreement by the
Selling Stockholders or the consummation of the transactions
contemplated hereby, including the delivery and sale of the Shares to
be delivered and sold by the Selling Stockholders, except such as may
be required under state securities or blue sky laws in connection with
the purchase and distribution of the Shares by the several
Underwriters.
To the extent deemed advisable by such counsel,
they may rely as to matters of fact on certificates of the Selling
Stockholders and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the
laws of the State of Missouri or the Federal laws of the United States;
provided that such counsel shall state that in their opinion the
Underwriters and they are justified in relying on such other opinions.
Copies of such certificates and other opinions shall be furnished to
the Representatives and counsel for the Underwriters.
(i) All proceedings taken in connection with the
sale of the Firm Shares and the Option Shares as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives, and their
counsel and the Underwriters shall have received from Xxxxxxx Xxxx & Xxxxx LLP a
favorable opinion, addressed to the Representatives and dated such Closing Date,
with respect to the Shares, the Registration Statement and the Prospectus, and
such other related matters, as the Representatives may reasonably request, and
the Company shall have furnished to Xxxxxxx Xxxx & Xxxxx LLP such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(j) The Representatives shall have received copies
of the Lock-up Agreements executed by each entity or person described in Section
4(n).
(k) The Company and the Selling Stockholders shall
have furnished or caused to be furnished to the Representatives such further
certificates or documents as the Representatives shall have reasonably
requested.
7. Covenants of the Company.
(a) The Company covenants and agrees as follows:
(i) The Company will use its best efforts to
cause the Registration Statement, if not effective at the time of
execution of this Agreement, and any amendments thereto to become
effective as promptly as possible. The Company shall prepare the
Prospectus in a form approved by the Representatives and file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later
than the 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.
(ii) The Company shall promptly advise the
Representatives in
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writing (i) when any amendment to the Registration Statement shall have
become effective, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any
additional information, (iii) of the prevention or suspension of the
use of any preliminary prospectus or the Prospectus or of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company shall not
file any amendment of the Registration Statement or supplement to the
Prospectus unless the Company has furnished the Representatives a copy
for its review prior to filing and shall not file any such proposed
amendment or supplement to which the Representatives reasonably object.
The Company shall use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(iii) If, at any time when a prospectus
relating to the Shares is required to be delivered under the Securities
Act and the Rules, any event occurs as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Securities Act or the
Rules, the Company promptly shall prepare and file with the Commission,
subject to the second sentence of paragraph (ii) of this Section 7(a),
an amendment or supplement which shall correct such statement or
omission or an amendment which shall effect such compliance.
(iv) The Company shall make generally
available to its security holders and to the Representatives as soon as
practicable, but not later than 45 days after the end of the 12-month
period beginning at the end of the fiscal quarter of the Company during
which the Effective Date occurs (or 90 days if such 12-month period
coincides with the Company's fiscal year), an earning statement (which
need not be audited) of the Company, covering such 12-month period,
which shall satisfy the provisions of Section 11(a) of the Securities
Act or Rule 158 of the Rules.
(v) The Company shall furnish to the
Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including all exhibits
thereto and amendments thereof) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and all
amendments thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act or the
Rules, as many copies of any preliminary prospectus and the Prospectus
and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(vi) The Company shall cooperate with the
Representatives and their counsel in endeavoring to qualify the Shares
for offer and sale in connection with
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the offering under the laws of such jurisdictions as the
Representatives may designate and shall maintain such qualifications in
effect so long as required for the distribution of the Shares;
provided, however, that the Company shall not be required in connection
therewith, as a condition thereof, to qualify as a foreign corporation
or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(vii) For a period of five years after the date
of this Agreement, the Company shall supply to the Representatives, and
to each other Underwriter who may so request in writing, copies of such
financial statements and other periodic and special reports as the
Company may from time to time distribute generally to the holders of
any class of its capital stock and to furnish to the Representatives a
copy of each annual or other report it shall be required to file with
the Commission.
(viii) Without the prior written consent of CIBC
World Markets, for a period of 180 days after the date of this
Agreement, the Company, its stockholders that have delivered lock-up
agreements to the Underwriters and each of its individual directors and
executive officers shall not issue, sell or register with the
Commission (other than on Form S-8 or on any successor form), or
otherwise dispose of, directly or indirectly, any equity securities of
the Company (or any securities convertible into, exercisable for or
exchangeable for equity securities of the Company), except for the
issuance of the Shares pursuant to the Registration Statement and the
issuance of shares pursuant to the Company's existing stock option plan
or bonus plan as described in the Registration Statement and the
Prospectus.
(ix) On or before completion of this offering,
the Company shall make all filings required under applicable securities
laws and by the Nasdaq National Market (including any required
registration under the Exchange Act).
(x) The Company shall file timely and
accurate reports in accordance with the provisions of Florida Statutes
Section 517.05, or any successor provision, and any regulation
promulgated thereunder, if at any time after the Effective Date, the
Company or any of its affiliates commences engaging in business with
the government of Cuba or any person or affiliate located in Cuba.
(xi) The Company will apply the net proceeds
from the offering of the Shares in the manner set forth under "Use of
Proceeds" in the Prospectus.
(b) The Company agrees to pay, or reimburse if paid
by the Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company under this Agreement including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statement including all
exhibits thereto, each preliminary prospectus, the Prospectus, all amendments
and supplements to the Registration Statement and the Prospectus, and the
printing, filing and distribution of this Agreement; (ii) the preparation and
delivery of certificates for the Shares to
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the Underwriters; (iii) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the various
jurisdictions referred to in Section 7(a)(vi), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
registration and qualification and the preparation, printing, distribution and
shipment of preliminary and supplementary Blue Sky memoranda; (iv) the
furnishing (including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of each preliminary prospectus, the Prospectus and
all amendments or supplements to the Prospectus, and of the several documents
required by this Section to be so furnished, as may be reasonably requested for
use in connection with the offering and sale of the Shares by the Underwriters
or by dealers to whom Shares may be sold; (v) the filing fees of the NASD in
connection with its review of the terms of the public offering and reasonable
fees and disbursements of counsel for the Underwriters in connection with such
review; (vi) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of all reports and information
required by Section 7(a)(vii); (vii) inclusion of the Shares for quotation on
the Nasdaq National Market; (viii) all transfer taxes, if any, with respect to
the sale and delivery of the Shares by the Company to the Underwriters and (ix)
all costs and expenses of the Selling Stockholders incident to the public
offering of the Shares. Subject to the provisions of Section 10, the
Underwriters agree to pay, whether or not the transactions contemplated hereby
are consummated or this Agreement is terminated, all costs and expenses incident
to the performance of the obligations of the Underwriters under this Agreement
not payable by the Company pursuant to the preceding sentence, including,
without limitation, the fees and disbursements of counsel for the Underwriters.
8. Indemnification.
(a) The Company and the Selling Stockholders agree,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against any and all losses,
claims, damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment thereof or supplement
thereto, or arise out of or are based upon 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, (ii) in whole or in part upon any breach
of the representations and warranties set forth in Section 4 hereof, or (iii) in
whole or in part upon any failure of the Company to perform any of its
obligations hereunder or under law; provided, however, that such indemnity shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) on account of any losses, claims, damages or liabilities arising
from the sale of the Shares to any person by such Underwriter if such untrue
statement or omission or alleged untrue statement or omission was made in such
preliminary prospectus, the Registration Statement or the Prospectus, or such
amendment or
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supplement, in reliance upon and in conformity with information furnished in
writing to the Company by the Representatives on behalf of any Underwriter
specifically for use therein. Notwithstanding the foregoing, the liability of
each Selling Stockholder pursuant to the provisions of Section 8(a) shall be
limited to an amount equal to the aggregate net proceeds received by such
Selling Stockholder from the sale of the Shares sold by the Selling Stockholders
hereunder. This indemnity agreement will be in addition to any liability which
the Company and the Selling Stockholders may otherwise have.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, the Selling Stockholders
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, each director of the
Company, and each officer of the Company who signs the Registration Statement,
to the same extent as the foregoing indemnity from the Company and the Selling
Stockholders to each Underwriter, but only insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which was made in any
preliminary prospectus, the Registration Statement or the Prospectus, or any
amendment thereof or supplement thereto, contained in the last paragraph of the
cover page, in the paragraph relating to stabilization on the inside front cover
page of the Prospectus and the statements contained under the caption
"Underwriting" in the Prospectus; provided, however, that the obligation of each
Underwriter to indemnify the Company or the Selling Stockholders (including any
controlling person, director or officer thereof) shall be limited to the net
proceeds received by the Company from such Underwriter.
(c) Any party that proposes to assert the right to
be indemnified under this Section will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such action,
suit or proceeding, enclosing a copy of all papers served. No indemnification
provided for in Section 8(a) or 8(b) shall be available to any party who shall
fail to give notice as provided in this Section 8(c) if the party to whom notice
was not given was unaware of the proceeding to which such notice would have
related and was prejudiced by the failure to give such notice but the omission
so to notify such indemnifying party of any such action, suit or proceeding
shall not relieve it from any liability that it may have to any indemnified
party for contribution or otherwise than under this Section. In case any such
action, suit or proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and the
approval by the indemnified party of such counsel, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses, except
as provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the employment of counsel by such
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indemnified party has been authorized in writing by the indemnifying parties,
(ii) the indemnified party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying parties and the indemnified party
in the conduct of the defense of such action (in which case the indemnifying
parties shall not have the right to direct the defense of such action on behalf
of the indemnified party) or (iii) the indemnifying parties shall not have
employed counsel to assume the defense of such action within a reasonable time
after notice of the commencement thereof, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any action, suit,
proceeding or claim effected without its written consent, which consent shall
not be unreasonably withheld or delayed.
9. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnification provided
for in Section 8(a) or 8(b) is due in accordance with its terms but for any
reason is held to be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b), then each indemnifying party shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting any contribution received by any person
entitled hereunder to contribution from any person who may be liable for
contribution) to which the indemnified party may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the other from
the offering of the Shares or, if such allocation is not permitted by applicable
law or indemnification is not available as a result of the indemnifying party
not having received notice as provided in Section 8 hereof, in such proportion
as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of the Company and the Selling Stockholder on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Selling Stockholders and the Underwriters
shall be deemed to be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts but before deducting expenses) received
by the Company or the Selling Stockholders, as set forth in the table on the
cover page of the Prospectus, bear to (y) the underwriting discounts received by
the Underwriters, as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company and the Selling Stockholders or the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact related to information
supplied by the Company and the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 9, (i) in no case shall any Underwriter (except as may be provided
in the Agreement Among Underwriters) be liable or responsible for any amount in
excess of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder; (ii) the
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Company shall be liable and responsible for any amount in excess of such
underwriting discount; and (iii) in no case shall the Selling Stockholder be
liable and responsible for any amount in excess of the aggregate net proceeds of
the sale of Shares received by such Selling Stockholder; provided, however, that
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. For purposes of this
Section 9, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of the Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to clauses (i) and (ii) in the immediately preceding sentence of this
Section 9. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section, notify such party or parties from whom contribution
may be sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
10. Termination. This Agreement may be terminated with
respect to the Shares to be purchased on a Closing Date by the Representatives
by notifying the Company and the Selling Stockholders at any time
(a) in the absolute discretion of the
Representatives at or before any Closing Date: (i) if on or prior to such date,
any domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Representatives will in the future
materially disrupt, the securities markets; (ii) if there has occurred any new
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, inadvisable to proceed with the
offering; (iii) if there shall be such a material adverse change in general
financial, political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as to make it,
in the judgment of the Representatives, inadvisable or impracticable to market
the Shares; (iv) if trading in the Shares has been suspended by the Commission
or trading generally on the New York Stock Exchange, Inc., on the American Stock
Exchange, Inc. or the Nasdaq National Market has been suspended or limited, or
minimum or maximum ranges for prices for securities shall have been fixed, or
maximum ranges for prices for securities have been required, by said exchanges
or by order of the Commission, the National Association of Securities Dealers,
Inc., or any other governmental or regulatory authority; or (v) if a banking
moratorium has been declared by any state or Federal authority; or (vi) if, in
the judgment of the Representatives, there has occurred a Material Adverse
Effect, or
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(b) at or before any Closing Date, that any of the
conditions specified in Section 6 shall not have been fulfilled when and as
required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, neither the Company nor the Selling Stockholders shall be under any
liability to any Underwriter, and no Underwriter shall be under any liability to
the Company, except that (y) if this Agreement is terminated by the
Representatives or the Underwriters because of any failure, refusal or inability
on the part of the Company or any Selling Stockholder to comply with the terms
or to fulfill any of the conditions of this Agreement, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) incurred by them in
connection with the proposed purchase and sale of the Shares or in contemplation
of performing their obligations hereunder and (z) no Underwriter who shall have
failed or refused to purchase the Shares agreed to be purchased by it under this
Agreement, without some reason sufficient hereunder to justify cancellation or
termination of its obligations under this Agreement, shall be relieved of
liability to the Company, the Selling Stockholders or to the other Underwriters
for damages occasioned by its failure or refusal.
11. Substitution of Underwriters. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 10) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
Representatives may deem advisable or one or more of the remaining Underwriters
may agree to purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall not exceed 10% of the Shares
that all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number of
Shares that any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 11 by more than one-ninth of such number of
Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the
defaulting Underwriters on such Closing Date shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to one additional business day within which it may,
but is not obligated to, find one or more substitute underwriters reasonably
satisfactory to the Representatives to purchase such Shares upon the terms set
forth in this Agreement.
In any such case, either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a period of not
more than five business days in order
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that necessary changes and arrangements (including any necessary amendments or
supplements to the Registration Statement or Prospectus) may be effected by the
Representatives and the Company. If the number of Shares to be purchased on such
Closing Date by such defaulting Underwriter or Underwriters shall exceed 10% of
the Shares that all the Underwriters are obligated to purchase on such Closing
Date, and none of the nondefaulting Underwriters or the Company shall make
arrangements pursuant to this Section within the period stated for the purchase
of the Shares that the defaulting Underwriters agreed to purchase, this
Agreement shall terminate with respect to the Shares to be purchased on such
Closing Date without liability on the part of any nondefaulting Underwriter to
the Company or the Selling Stockholders and without liability on the part of the
Company, except in both cases as provided in Sections 7(b), 8, 9 and 10. The
provisions of this Section shall not in any way affect the liability of any
defaulting Underwriter to the Company or the nondefaulting Underwriters arising
out of such default. A substitute underwriter hereunder shall become an
Underwriter for all purposes of this Agreement.
12. Miscellaneous. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, of the Selling Stockholders and of the Underwriters set forth in
or made pursuant to this Agreement shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or the Selling Stockholders or any of the officers, directors or
controlling persons referred to in Sections 8 and 9 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 7(b), 8, 9
and 10 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Stockholders and their respective
successors and assigns, and, to the extent expressed herein, for the benefit of
persons controlling any of the Underwriters, or the Company, and directors and
officers of the Company, and their respective successors and assigns, 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 any purchaser of
Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing
and mailed or delivered or by telephone or telegraph if subsequently confirmed
in writing, (a) if to the Representatives, c/o CIBC World Markets, Corp., CIBC
World Markets Tower, World Financial Center, New York, New York 10281 Attention:
, with a copy to and (b) if to the Company, to its agent for service as such
agent's address appears on the cover page of the Registration Statement with a
copy to and (c) if to the Selling Stockholders to with a copy to .
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflict of laws.
All judicial proceedings arising out of or relating to this
Agreement may be brought in any state or federal court of competent jurisdiction
in the State of New York, and by
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execution and delivery of this Agreement, the Company and each of the Selling
Stockholders accepts for itself in connection with its properties, generally and
unconditionally, the nonexclusive jurisdiction of the aforesaid courts and
waives any defense of forum non conveniens and irrevocably agrees to be bound by
any judgment rendered thereby in connection with this Agreement. Each of the
Company and the Selling Stockholders designates and appoints _________________
and ___________, respectively, and such other persons as may hereafter be
selected by the Company or such Selling Stockholder irrevocably agree in writing
to so serve, as its agent to receive on its behalf service of all process in any
such proceedings in any such court, such service being hereby acknowledged by
the Company and such Selling Stockholder to be effective and binding service in
every respect. A copy of any such process so served shall be mailed by
registered mail to the Company and such Selling Stockholder at their addresses
provided in Section 12 hereof; provided, however, that, unless otherwise
provided by applicable law, any failure to mail such copy shall not affect the
validity of service of such process. If any agent appointed by the Company or
such Selling Stockholder refuses to accept service, the Company or such Selling
Stockholder hereby agree that service of process sufficient for personal
jurisdiction in any action against the Company or such Selling Stockholder in
the State of New York may be made by registered or certified mail, return
receipt requested, to the Company or such Selling Stockholder at their
respective addresses provided in Section 12 hereof, and the Company and such
Selling Stockholder hereby acknowledges that such service shall be effective and
binding in every respect. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of any Underwriter
to bring proceedings against the Company or each of the Selling Stockholders in
the courts of any other jurisdiction.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement among us.
Very truly yours,
ISSUER
By
Title:
SELLING STOCKHOLDERS
By
Xxxxxx X XxXxxxx
By
Xxxxx X. Xxxxxx
By
S. Xxxxxx Xxxxxx
By
Xxxxx X. Xxxxxx
By
Xxxxxxxx X. Xxxxxxx
By
Xxxxxxx X. Xxx
Confirmed:
CIBC WORLD MARKETS, CORP.
Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule I annexed
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hereto.
By CIBC WORLD MARKETS, CORP.
By
Title:
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SCHEDULE I
Number of
Firm Shares to
Name of the Underwriter Be Purchased
CIBC World Markets, Corp.
Total 4,000,000
