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EXHIBIT (1)
3,700,000 Shares
Common stock
($.01 Par Value)
UNDERWRITING AGREEMENT
, 1996
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UNDERWRITING AGREEMENT
, 1996
XXXXXX, READ & CO. INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXX & XXXXXXX, INC.
as Managing Underwriters
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Digicon Inc. (the "Company") proposes to issue and sell and
the persons named in Schedule B annexed hereto (the "Selling Stockholders")
propose to sell to the underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of 3,700,000 shares (the "Firm Shares") of Common
Stock, $.01 par value (the "Common Stock"), of the Company, of which 3,500,000
shares are to be issued and sold by the Company and an aggregate of 200,000
shares are to be sold by the Selling Stockholders in the respective amounts set
forth under the caption "Firm Shares" in Schedule B annexed hereto. In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company
up to an additional 555,000 shares of Common Stock (the "Additional Shares").
The Firm Shares and the Additional Shares are hereinafter collectively
sometimes referred to as the "Shares." The Shares are described in the
Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of
the Securities Act of 1993, as amended, and the rules and regulations
thereunder (collectively called the "Act"), with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-2, including a
prospectus, relating to the Shares, which incorporates by reference documents
which the Company has filed or will file in accordance with the provisions of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively called the "Exchange Act"). The Company has furnished
to you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses and the documents incorporated by reference therein
(each thereof, including the documents incorporated therein by reference, being
herein called a Preliminary Prospectus) relating to the Shares. Except where
the context otherwise requires, the registration statement, as amended when it
becomes effective, including all documents filed as a part thereof or
incorporated by reference therein, and including any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 424(b) under
the Act and deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430(A) under the Act, is herein called the
Registration Statement, and the prospectus, including all documents
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therein by reference, in the form filed by the Company with the Commission
pursuant to Rule 424(b) under the Act or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the time it
became effective, is herein called the Prospectus.
The Company, the Selling Stockholders and the Underwriters agree as
follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and the other terms and conditions herein set forth, the
Company and each of the Selling Stockholders, severally and not jointly,
agree to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company and each
Selling Stockholder the respective number of Firm Shares (subject to such
adjustment as you may determine to avoid fractional shares) which bears the
same proportion to the number of Firm Shares to be sold by the Company or
by such Selling Stockholders, as the case may be, as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule A
annexed hereto bears to the total number of Firm Shares to be sold by the
Company and the Selling Stockholders, in each case at a purchase price of
$_____ per Share. You shall release the Firm Shares for public sale
promptly after this Agreement becomes effective. You may from time to time
increase or decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations and
the other terms and conditions herein set forth, the Underwriters shall have the
right to purchase, severally and not jointly, from the Company, ratably in
accordance with the number of Firm Shares to be purchased by each of them
(subject to such adjustment as you shall determine to avoid fractional shares),
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company and
the Selling Stockholders listed on Schedule B hereto for the Firm Shares. This
option may be exercised at any time (but not more than once) on or before the
forty-fifth day following the date hereof, by written notice to the Company and
the Selling Stockholders listed on Schedule B hereto. Such notice shall set
forth the aggregate number of Additional Shares as to which the option is being
exercised, and the date and time when the Additional Shares are to be delivered
(such date and time being herein referred to as the additional time of
purchase); provided, however, that the additional time of purchase shall not be
earlier than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the eighth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as you may
determine to eliminate fractional shares).
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Pursuant to powers of attorney, which shall be satisfactory to counsel for
the Underwriters, granted by each Selling Stockholder, ______________ and
________________ will act as representatives of the Selling Stockholders. The
foregoing representatives (the "Representatives of the Selling Stockholders")
are authorized, on behalf of each Selling Stockholder, to execute any documents
necessary or desirable in connection with the sale of the Shares to be sold
hereunder by each Selling Stockholder, to make delivery of the certificates of
such Shares, to receive the proceeds of the sale of such Shares, to give
receipts for such proceeds, to pay therefrom the expenses to be borne by each
Selling Stockholder in connection with the sale and public offering of the
Shares, to distribute the balance of such proceeds to each Selling Stockholder
in proportion to the number of Shares sold by each Selling Stockholder, to
receive notices on behalf of each Selling Stockholder and to take such other
action as may be necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company and each of the Selling Stockholders by
certified or official bank check, in New York Clearing House funds, at the
office of Xxxxxx, Read & Co. Inc. in New York City, against delivery of the
certificates for the Firm Shares to you for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New
York City time, on , 1996 (unless another time shall be agreed
to by you, the Company and the Representatives of the Selling Stockholders
or unless postponed in accordance with the provisions of Section 10
hereof). The time at which such payment and delivery are actually made
is hereinafter sometimes called the "time of purchase." Certificates for
the Firm Shares shall be delivered to you in definitive form in such names
and in such denominations as you shall specify on the second business day
preceding the time of purchase. For the purpose of expediting the checking
of the certificates for the Firm Shares by you, the Company and the Selling
Stockholders agree to make such certificates available to you for such
purpose at least one full business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be made at
the additional time of purchase in the same manner and at the same office as the
payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify on the second business day preceding the additional time of
purchase. For the purpose of expediting the checking of the certificates for
the Additional Shares by you, the Company agrees to make such certificates
available to you for such purpose at least one full business day preceding the
additional time of purchase.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) when the Registration Statement becomes effective, the
Registration Statement and the Prospectus will fully comply in
all material respects with the provisions of the Act,
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and the Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
Company makes no warranty or representation with respect to any
statement contained in the Registration Statement or the
Prospectus in reliance upon and in conformity with information
concerning the Underwriters and furnished in writing by or on
behalf of any Underwriter through you to the Company expressly
for use in the Registration Statement or the Prospectus; the
documents incorporated by reference in the Prospectus, at the
time they were filed with the Commission, complied in all
material respects with the requirements of the Exchange Act, and
do not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(b) as of the date of this Agreement, the Company has
authorized capital stock as set forth under the heading entitled
"Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and, as of the time of
purchase and the additional time of purchase, as the case may be,
the Company shall have authorized capital stock as set forth
under the heading entitled "As Adjusted" in the section of the
Registration Statement and the Prospectus entitled
"Capitalization"; all of the issued and outstanding shares of
capital stock including Common Stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable; the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware, with full power and authority to own
its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver
this Agreement and to issue and sell the Shares as herein
contemplated;
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(c) the Company and each of its subsidiaries (the
"Subsidiaries") are duly qualified or licensed by and are in good
standing in each jurisdiction in which they conduct their
respective businesses and in which the failure, individually or
in the aggregate, to be so licensed or qualified could have a
material adverse effect on the operations, business or condition
of the Company and its Subsidiaries, taken as a whole; and the
Company and each of its Subsidiaries are in compliance in all
material respects with the laws, orders, rules, regulations and
directives issued or administered by such jurisdictions;
(d) neither the Company nor any of its Subsidiaries is in
breach of, or in default under (nor has any event occurred which
with notice, lapse of time, or both would constitute a breach of,
or default under), its respective charter or by-laws or in the
performance or observance of any obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust,
bank loan or credit agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by
which any of them is bound, and the execution, delivery and
performance of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with, or
result in any breach of or constitute a default under (nor
constitute any event which with notice, lapse of time, or both
would constitute a breach of, or default under), any provisions
of the charter or by-laws, of the Company or any of its
Subsidiaries or under any provision of any license, indenture,
mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of its
Subsidiaries;
(e) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its
terms, subject to applicable laws of bankruptcy, insolvency or
similar laws relating to creditors' rights
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generally and to general principles of equity (whether applied in
a proceeding in law or equity);
(f) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof
contained in the Registration Statement and Prospectus and the
certificates for the Shares are in due and proper form and the
holders of the Shares will not be subject to personal liability
by reason of being such holders;
(g) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares as
contemplated hereby other than registration of the Shares under
the Act and any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the Shares
are being offered by the Underwriters;
(h) except pursuant to registration rights that have been
exercised in the manner set forth in the Prospectus or pursuant
to the registration statement on Form S-3 dated __________, 1995
and except for registration rights that have been unconditionally
waived or otherwise terminated, no person has the right,
contractual or otherwise, to cause the Company to issue to it, or
register pursuant to the Act, any shares of capital stock of the
Company upon the issue and sale of the Shares to the Underwriters
hereunder, nor does any person have preemptive rights, rights of
first refusal or other rights to purchase any of the Shares;
(i) Deloitte & Touche LLP, whose reports on the consolidated
financial statements of the Company and its Subsidiaries are
filed with the Commission as part of the Registration Statement
and Prospectus, are independent public accountants as required by
the Act and the applicable published rules and regulations
thereunder;
(j) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from
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other persons, in order to conduct its respective business;
neither the Company nor any of its Subsidiaries is in violation
of, or in default under, any such license, authorization, consent
or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to
the Company or any of its Subsidiaries the effect of which could
have a material adverse effect on the Company and its
Subsidiaries taken as a whole;
(k) all legal or governmental proceedings, contracts or
documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or
filed as required;
(l) there are no actions, suits or proceedings pending or
threatened against the Company or any of its Subsidiaries or any
of their respective properties, at law or in equity, or before or
by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency which
could result in a judgment, decree or order having a material
adverse effect on the business, condition, prospects or property
of the Company and its Subsidiaries taken as a whole;
(m) the audited financial statements included in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its
Subsidiaries as of the dates indicated and the consolidated
results of operations and changes in financial position of the
Company and its Subsidiaries for the periods specified; such
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis during the periods involved;
(n) subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except
as may be otherwise stated in the Registration Statement or
Prospectus, there has not been (A) any material and unfavorable
change, financial or otherwise, in the business, properties,
prospects, regulatory environment, results of operations or
condition (financial or otherwise), present or prospective, of
the Company and its
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Subsidiaries taken as a whole, (B) any transaction, which is
material to the Company and its Subsidiaries taken as a whole,
contemplated or entered into by the Company or any of its
Subsidiaries or (C) any obligation, contingent or otherwise,
directly or indirectly incurred by the Company or any of its
Subsidiaries which is material to the Company and its
Subsidiaries taken as a whole;
(o) the Company has obtained the agreement of each of the
Selling Stockholders and of each of its directors and officers
not to offer to sell, sell, contract to sell, grant any option
to sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to
purchase Common Stock for a period of 120 days after the date
of the Prospectus; and
(p) none of the assets, liabilities, revenues or expenses of
the Company's Subsidiaries other than the Significant
Subsidiaries (as hereinafter defined), when each such financial
statement item is considered separately but aggregated for all
such non-Significant Subsidiaries, is material to the assets,
liabilities, revenues or expenses, respectively, of the Company
and its Subsidiaries, taken as a whole.
4. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder, severally and not jointly, represents and warrants to
each Underwriter that:
(a) such Selling Stockholder now is and at the time of
delivery of such Shares (whether the time of purchase or
additional time of purchase, as the case may be) will be, the
lawful owner of the number of Shares to be sold by such Selling
Stockholder pursuant to this Agreement and has and, at the time
of delivery thereof, will have valid and marketable title to such
Shares, and upon delivery of and payment for such Shares (whether
at the time of purchase or the additional time of purchase, as
the case may be), the Underwriters will acquire valid and
marketable title to such Shares free and clear of any claim,
lien, encumbrance, security interest, community property right,
restriction on transfer or other defect in title;
(b) such Selling Stockholder has and at the time of delivery
of such Shares will have, full legal right, power and capacity,
and any approval required by law (other than those
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imposed by the Act and the securities or blue sky laws of certain
jurisdictions), to sell, assign, transfer and deliver such Shares
in the manner provided in this Agreement;
(c) this Agreement and the Custody Agreement among
______________, as custodian, and the Selling Stockholders (the
"Custody Agreement") have been duly executed and delivered by
such Selling Stockholder and each is a legal, valid and binding
agreement of such Selling Stockholder enforceable in accordance
with its terms, subject to applicable laws of bankruptcy,
insolvency or similar laws relating to creditors' rights
generally and to general principles of equity (whether applied in
a proceeding in law or equity);
(d) when the Registration Statement becomes effective and at
all times subsequent thereto through the latest of the time of
purchase, additional time of purchase or the termination of the
offering of the Shares, the Registration Statement and
Prospectus, and any supplements or amendments thereto as relate
to such Selling Stockholder (to the extent based upon information
supplied in writing to the Company or any Underwriter) will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; and
(e) such Selling Stockholder has duly and irrevocably
authorized the Representatives of the Selling Stockholders, on
behalf of such Selling Stockholder, to execute and deliver this
Agreement and any other document necessary or desirable in
connection with the transactions contemplated thereby and to
deliver the Shares to be sold by such Selling Stockholder and
receive payment therefor pursuant hereto.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and
sale under the securities or blue sky laws of such states as you
may designate and to maintain such qualifications in effect so
long as required for the distribution of the Shares, provided
that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process
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under the laws of any such state (except services of process with
respect to the offering and sale of the Shares); and to promptly
advise you 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;
(b) to make available to you in New York City, as soon as
practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters,
as many copies of the Prospectus (or of the Prospectus as amended
or supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act;
(c) to advise you promptly and (if requested by you) to
confirm such advice in writing, (i) when the Registration
Statement has become effective and when any post-effective
amendment thereto becomes effective and (ii) if Rule 430A under
the Act is used, when the Prospectus is filed with the Commission
pursuant to Rule 424(b) under the Act (which the Company agrees
to file in a timely manner under such Rules);
(d) to advise you promptly, confirming such advice in
writing, of any request by the Commission for amendments or
supplements to the Registration Statement or Prospectus or for
additional information with respect thereto, or of notice of
institution of proceedings for, or the entry of a stop order
suspending the effectiveness of the Registration Statement and,
if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such order
as soon as possible; to advise you promptly of any proposal to
amend or supplement the Registration Statement or Prospectus
including by filing any documents that would be incorporated
therein by reference and to file no such amendment or supplement
to which you shall object in writing;
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(e) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this
Agreement (i) copies of any reports or other communications which
the Company shall send to its stockholders or shall from time to
time published or publicly disseminate, (ii) copies of all
annual, quarterly and current reports filed with the Commission
on Forms 10-K, 10-Q and 8-K, or such other similar form as may be
designated by the Commission, and (iii) such other information as
you may reasonably request regarding the Company or its
Subsidiaries;
(f) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a
prospectus relating to the Shares is required to be delivered
under the Act which, in the judgment of the Company, would
require the making of any change in the Prospectus then being
used, or in the information incorporated therein by reference, so
that the Prospectus would not include an untrue statement of
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they are made, not misleading, and, during such time, to
prepare and furnish, at the Company's expense, to the
Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change and to
furnish you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the
Commission;
(g) to make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which
will satisfy the provisions of Section 11(a) of the Act) covering
a period of twelve months beginning after the effective date of
the Registration Statement but no later than September 30, 1997,
as soon as is reasonably practicable after the termination of
such twelve-month period;
(h) to furnish to you four signed copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient conformed
copies of the foregoing (other than exhibits) for distribution of
a copy to each of the other Underwriters;
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(i) to furnish to you as early as practicable prior to the
time of purchase and the additional time of purchase, as the
case may be, but not later than two business days prior thereto,
a copy of the latest available unaudited interim consolidated
financial statements, if any, of the Company and its
Subsidiaries which have been read by the Company's independent
certified public accountants, as stated in their letter to be
furnished pursuant to Section 8(c) of this Agreement;
(j) to apply the net proceeds from the sale of the Shares
in the manner set forth under the caption "Use of Proceeds" in
the Prospectus;
(k) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement
and during the period referred to in paragraph (f) above, a copy
of any document proposed to be filed pursuant to Sections 13,
14, or 15(d) of the Exchange Act;
(l) not to offer to sell, sell, contract to sell, grant
any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities
convertible into or exchangeable for Common Stock or warrants
or other rights to purchase Common Stock or permit the
registration under the Act of any shares of Common Stock,
except for the registration of the Shares and the sales to the
Underwriters pursuant to this Agreement and except for
issuances of Common Stock upon the exercise of outstanding
options and warrants, for a period of 120 days after the date
hereof, without the prior written consent of the Managing
Underwriters; and
(m) to use its best efforts to cause the Common Stock to
be listed on the American Stock Exchange.
6. Certain Covenants of the Company and the Selling
Stockholders. The Company and each of the Selling Stockholders
agree with each Underwriter as follows:
(a) the Company will pay all expenses, fees and taxes
(other than any transfer taxes and fees and disbursements of
counsel for the Underwriters except as set forth under
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Section 7 hereof or (iii) or (iv) below) in connection with (i)
the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto, and the printing and furnishing of copies of
each thereof to the Underwriters and to dealers (including costs
of mailing and shipment), (ii) the issuance, sale and delivery of
the Shares by the Company and the Selling Stockholders, (iii) the
word processing and/or printing of this Agreement, any Agreement
Among Underwriters, any dealer agreements, any Statements of
Information, the Custody Agreement and the Powers of Attorney and
the reproduction and/or printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for
offering and sale under state laws and the determination of their
eligibility for investment under state law as aforesaid
(including the legal fees and filing fees and other disbursements
of counsel to the Underwriters) and the printing and furnishing
of copies of any blue sky surveys or legal investment surveys to
the Underwriters and to dealers, (v) any listing of the Shares on
any securities exchange or qualification of the Shares for
quotation on the Nasdaq Stock Market and any registration thereof
under the Exchange Act, (vi) the filing for review of the public
offering of the Shares by the National Association of Securities
Dealers, Inc. (the "NASD"), and (vii) the performance of the
Company's and the Selling Stockholders' other obligations
hereunder; provided, however, that, notwithstanding the
foregoing, in addition to their proporationate share of any
underwriting discounts and commissions, the Selling Stockholders
shall bear all legal fees and disbursements of their counsel; and
(b) the Company and the Selling Stockholders will not issue,
sell, grant any option to sell or otherwise dispose of, directly
or indirectly, any shares of Common Stock or securities
convertible into or exchangeable for Common Stock or warrants or
other rights to purchase Common Stock or, in the case of the
Company, permit the registration under the Act of any shares of
Common Stock, except for the registration of the Shares and the
sales to the Underwriters pursuant to this Agreement and except
for issuances of Common Stock upon the exercise of outstanding
options or
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warrants for a period of 120 days after the date of the
Prospectus, without the prior written consent of the Managing
Underwriters.
7. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement
pursuant to the first two paragraphs of Section 10 hereof or the default by
one or more of the Underwriters in its or their respective obligations
hereunder, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of their
counsel.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders on the date hereof and at the time of purchase (and the
several obligations of the Underwriters at the additional time of purchase
are subject to the accuracy of the representations and warranties on the
part of the Company and the Selling Stockholders on the date hereof and at
the time of purchase (unless previously waived) and at the additional time
of purchase, as the case may be), the performance by the Company and the
Selling Stockholders of their obligations hereunder and to the following
conditions:
(a) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an
opinion of Xxxxxx & Xxxxxx, L.L.P., counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or
the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
satisfactory to Xxxxxx & Xxxxxx L.L.P., counsel for the
Underwriters, stating that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own its properties and conduct its business as
described in the Registration Statement and the Prospectus,
to execute and deliver this Agreement and to issue, sell and
deliver the Shares as herein contemplated;
(ii) each of the Company's significant subsidiaries
named in Schedule C ("Significant Subsidiaries") has been
duly incorporated and is validly existing as a corporation
in good standing under the laws of its respective
jurisdiction of incorporation with full
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corporate power and authority to own its respective
properties and to conduct its respective business;
(iii) the Company and its Significant Subsidiaries are
duly qualified or licensed by each jurisdiction in which
they conduct their respective businesses and in which the
failure, individually or in the aggregate, to be so licensed
or qualified could have a material adverse effect on the
operations, business or condition of the Company and its
Significant Subsidiaries taken as a whole, and the Company
and its Significant Subsidiaries are duly qualified, and are
in good standing, in each jurisdiction in which they own or
lease real property or maintain an office and in which such
qualification is necessary;
(iv) this Agreement has been duly authorized, executed
and delivered by the Company;
(v) the Shares, when issued and delivered to and paid
for by the Underwriters, will be duly and validly authorized
and issued and will be fully paid and non- assessable;
(vi) the Company has authorized capital stock as set
forth in the Registration Statement and the Prospectus; the
outstanding shares of capital stock of the Company have been
duly and validly authorized and issued, and are fully paid,
nonassessable and free of statutory and contractual
preemptive rights; the Shares when issued will be free of
statutory and contractual preemptive rights; the
certificates for the Shares are in due and proper form and
the holders of the Shares will not be subject to personal
liability by reason of being such holders;
(vii) the capital stock of the Company, including the
Shares, conforms in all material respects to the description
thereof contained in the Registration Statement and
Prospectus;
(viii) the Registration Statement and the Prospectus
(except as to the financial statements and schedules
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and other financial and statistical data contained or
incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Act;
(ix) the Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge,
no stop order proceedings with respect thereto are pending
or threatened under the Act;
(x) no approval, authorization, consent or order of or
filing with any national, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the issuance and sale of the
Shares as contemplated hereby other than registration of the
Shares under the Act (except such counsel need express no
opinion as to any necessary qualification under the state
securities or blue sky laws of the various jurisdictions in
which the Shares are being offered by the Underwriters);
(xi) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not and will not
conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice,
lapse of time, or both, would constitute a breach of or
default under), any provisions of the charter or by-laws of
the Company or any of its Subsidiaries or under any
provision of any license, indenture, mortgage, deed of
trust, bank loan, credit agreement or other agreement or
instrument to which the Company or any of its Subsidiaries
is a party or by which any of them or their respective
properties may be bound or affected, or under any law,
regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries;
(xii) to the best of such counsel's knowledge, neither
the Company nor any of its Subsidiaries is in
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breach of, or in default under (nor has any event occurred
which with notice, lapse of time, or both would constitute a
breach of, or default under), any license, indenture,
mortgage, deed of trust, bank loan or any other agreement or
instrument to which the Company or any of its Subsidiaries
is a party or by which any of them or their respective
properties may be bound or affected or under any law,
regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries;
(xiii) to the best of such counsel's knowledge, there
are no contracts, licenses, agreements, leases or documents
of a character which are required to be filed as exhibits to
the Registration Statement or to be summarized or described
in the Prospectus which have not been so filed, summarized
or described;
(xiv) to the best of such counsel's knowledge, there are
no actions, suits or proceedings pending or threatened
against the Company or any of its Subsidiaries or any of
their respective properties, at law or in equity or before
or by any commission, board, body, authority or agency which
are required to be described in the Prospectus but are not
so described;
(xv) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed
(or, if an amendment with respect to any such document was
filed when such amendment was filed), complied as to form in
all material respects with the Exchange Act (except as to
the financial statements and schedules and other financial
and statistical data contained or incorporated by reference
therein as to which such counsel need express no opinion);
and
(xvi) such counsel have participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants of the
Company and representatives of the Underwriters at which the
contents of the
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Registration Statement and Prospectus were discussed and,
although such counsel is not passing upon and does not
assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or Prospectus (except as and to the extent stated
in subparagraphs (vi) and (vii) above), on the basis of the
foregoing (relying as to materiality to a large extent upon
the opinions of officers and other representatives of the
Company) nothing has come to the attention of such counsel
that causes them to believe that the Registration Statement
or any amendment thereto at the time such Registration
Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or
any supplement thereto at the date of such Prospectus or
such supplement, and at all times up to and including the
time of purchase or additional time of purchase, as the case
may be, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading (it being understood that such counsel need
express no opinion with respect to the financial statements
and schedules and other financial and statistical data
included in the Registration Statement or Prospectus).
(b) The Selling Stockholders shall furnish to you at the time
of purchase and at the additional time of purchase, as the case
may be, an opinion of Xxxxxx & Xxxxxx, L.L.P., counsel for the
Selling Stockholders, addressed to the Underwriters, and dated
the time of purchase or the additional time of purchase, as the
case may be, with reproduced copies for each of the other
Underwriters, and in form and substance satisfactory to Xxxxxx &
Xxxxxx L.L.P., counsel for the Underwriters, stating that:
(i) this Agreement and the Custody Agreement have been
duly executed and delivered by or on behalf of each of the
Selling Stockholders;
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(ii) each Selling Stockholder has full legal right and
power, and has obtained any authorization or approval
required by law (other than those imposed by the Act and the
securities or blue sky laws of certain jurisdictions), to
sell, assign, transfer and deliver the Shares to be sold by
such Selling Stockholder in the manner provided in this
Agreement;
(iii) delivery of certificates for the Shares by each
Selling Stockholder pursuant hereto will pass valid and
marketable title thereto to the Underwriters, free and clear
of any claim, lien, encumbrance, security interest,
community property right, restriction on transfer or other
defect in title;
(iv) each of the Representatives of the Selling
Stockholders has been duly authorized by each Selling
Stockholder to execute and deliver on behalf of such Selling
Stockholder 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
such Selling Stockholder; and
(v) to the best of such counsel's knowledge, the
statements in the Prospectus under the caption "Selling
Stockholder" insofar as such statements constitute a summary
of the matters referred to therein present fairly the
information called for with respect to such matters.
(c) You shall have received from Deloitte & Touche LLP,
letters dated, respectively, the date of this Agreement and the
time of purchase and additional time of purchase, as the case may
be, and addressed to the Underwriters (with reproduced copies for
each of the Underwriters) in the forms heretofore approved by the
Managing Underwriters.
(d) You shall have received at the time of purchase and at
the additional time of purchase, as the case may be, the
favorable opinion of Xxxxxx & Xxxxxx L.L.P., counsel for the
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Underwriters, dated the time of purchase or the additional time
of purchase, as the case may be, as to the matters referred to in
subparagraphs (iv), (v), (vii), (viii) and (ix) of paragraph (a)
of this Section 8.
In addition, such counsel shall state that such counsel have participated
in conferences with officers and other representatives of the Company, counsel
for the Company, representatives of the independent public accountants of the
Company and representatives of the Underwriters at which the contents of the
Registration Statement and Prospectus 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 Prospectus (except as to matters referred to under
subparagraph (vii) of paragraph (a) of this Section 8), on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), no facts have come to the
attention of such counsel which lead them to believe that the Registration
Statement or any amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus as of its date
or any supplement thereto as of its date contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no comment with respect to the financial statements and schedules and
other financial and statistical data included in the Registration Statement or
Prospectus).
(e) No amendment or supplement to the Registration Statement
or Prospectus, including documents deemed to be incorporated by
reference therein, shall be filed prior to the time the
Registration Statement becomes effective to which you object in
writing.
(f) The Registration Statement shall become effective, or if
Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act,
at or before 5:00 P.M., New York City time, on the date of this
Agreement, unless a later time (but not later than 5:00 P.M., New
York City time, on the second full business day after the date of
this Agreement) shall be agreed to by the Company, the
Representatives of the Selling Stockholders and you in writing or
by telephone, confirmed in writing; provided, however, that the
Company, the Representatives of the Selling Stockholders and you
and any
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group of Underwriters, including you, who have agreed hereunder
to purchase in the aggregate at least 50% of the Firm Shares may
from time to time agree on a later date.
(g) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to
the effectiveness of the Registration Statement shall have been
issued under the Act or proceedings initiated under Section 8(d)
or 8(e) of the Act; (ii) the Registration Statement and all
amendments thereto, or modifications thereof, if any, shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; and (iii) the Prospectus
and all amendments or supplements thereto, or modifications
thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they are made, not
misleading.
(h) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case
may be, (i) no material and unfavorable change, financial or
otherwise (other than as referred to in the Registration
Statement and Prospectus), in the business, condition or
prospects of the Company and its Subsidiaries taken as a whole
shall occur or become known and (ii) no transaction which is
material and unfavorable to the Company shall have been entered
into by the Company or any of its Subsidiaries.
(i) The Company will, at the time of purchase or additional
time of purchase, as the case may be, deliver to you a
certificate of two of its executive officers to the effect that
the representations and warranties of the Company as set forth in
this Agreement and the conditions set forth in paragraph (g) and
paragraph (h) have been met and that they are true and correct as
of each such date.
(j) You shall have received signed letters, dated the date of
this Agreement, from each of the Selling Stockholders and each of
the directors and officers of the Company to the effect that such
persons shall not offer to sell, sell, contract to sell, grant
any option to sell or otherwise dispose of, directly or
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indirectly, any shares of Common Stock of the Company or
securities convertible into or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock for a period of
120 days after the date of the Prospectus without the prior
written consent of the Managing Underwriters.
(k) The Company and the Selling Stockholders shall have
furnished to you such other documents and certificates as to the
accuracy and completeness of any statement in the Registration
Statement and the Prospectus as of the time of purchase and the
additional time of purchase, as the case may be, as you may
reasonably request.
(l) The Company and the Selling Stockholders shall perform
such of their respective obligations under this Agreement as are
to be performed by the terms hereof at or before the time of
purchase and at or before the additional time of purchase, as the
case may be.
(m) The Shares shall have been approved for listing on the
Exchange, subject only to notice of issuance at or prior to the
time of purchase.
(n) The Selling Stockholders will at the time of purchase and
the additional time of purchase, as the case may be deliver to
you a certificate of the Representatives of the Selling
Stockholders to the effect that the representations and the
warranties of the Selling Stockholders as set forth in this
Agreement are true and correct as of each such date.
9. Effective Date of Agreement; Termination: This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall
have received notification of the effectiveness of the Registration
Statement, or (ii) if Rule 430A under the Act is used, when the parties
hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, at any time prior to the time of purchase or, with
respect to the purchase of any Additional Shares, the additional time of
purchase, as the case may be, trading in securities on the New York Stock
Exchange or American Stock Exchange shall have been suspended or minimum prices
shall have been established on the New York Stock Exchange or American Stock
Exchange, or if a banking moratorium shall have
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been declared either by the United States or New York State authorities, or if
the United States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or escalation of
hostilities or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in
your judgment or in the judgment of such group of Underwriters, to make it
impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this agreement as
provided in this Section 9, the Company, the Representatives of the Selling
Stockholders and each other Underwriter shall be notified promptly by letter or
telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company or the
Selling Stockholders, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company or the Selling Stockholders, as the
case may be, shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 6(a), 7 and 11 hereof), and the
Underwriters shall be under no obligation or liability to the Company and the
Selling Stockholders under this Agreement (except to the extent provided in
Section 11 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments: If any Underwriter shall
default in its obligation to take up and pay for the Firm Shares to be
purchased by it hereunder and if the number of Firm Shares which all
Underwriters so defaulting shall have agreed but failed to take up and pay
for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate principal amount of Firm Shares they are obligated to purchase
pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided.
Such Shares shall be taken up and paid for by such non- defaulting
Underwriter or Underwriters in such amount or amounts as you may designate
with the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number
of Firm Shares set opposite the names of such non-defaulting Underwriters
in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and the Selling Stockholders agree with the
non-defaulting Underwriters that they will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you shall have the right to postpone the
time of purchase for a period not exceeding
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five business days in order that any necessary changes in the Registration
Statement and Prospectus and other documents may be effected.
The term Underwriter as used in this agreement shall refer to and include
any Underwriter substituted under this Section 10 with like effect as if such
substituted Underwriter had originally been named in Schedule A.
11. Indemnity by the Company, the Selling Stockholders and the
Underwriters.
(a) The Company and the Selling Stockholders jointly and
severally agree to indemnify, defend and hold harmless each
Underwriter and any person who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any loss, expense, liability or
claim (including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or any such
controlling person may incur under the Act, the Exchange Act or
otherwise insofar as such loss, expense, liability or claim
arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any
post- effective amendment thereof by the Company) or in a
Prospectus (the term "Prospectus" for the purpose of this Section
11 being deemed to include any Preliminary Prospectus, the
Prospectus and the Prospectus as amended or supplemented by the
Company), or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated
in either such Registration Statement or Prospectus or necessary
to make the statements made therein not misleading, except
insofar as any such loss, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with
information furnished in writing by any Underwriter through you
to the Company expressly for use with reference to such
Underwriter in such Registration Statement or such Prospectus or
arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information
required to be stated in either such Registration Statement or
Prospectus or necessary to make such information not misleading;
provided, further, that no Selling Stockholder shall be
responsible, either pursuant to this indemnity or as a result of
any breach of this Agreement,
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for losses, expenses, liability or claims arising out of or based
upon such untrue statement or omission or allegation thereof
based upon information furnished by any party other than such
Selling Stockholder and, in any event, no Selling Stockholder
shall be responsible, either pursuant to this indemnity or as a
result of any breach of this Agreement, for losses, expenses,
liability or claims for an amount in excess of the proceeds to be
received by such Selling Stockholder (before deducting expenses)
from the sale of Shares hereunder.
If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company or any Selling
Stockholder pursuant to the foregoing paragraph, such Underwriter shall promptly
notify the Company and the Representatives of the Selling Stockholders in
writing of the institution of such action and the Company or such Selling
Stockholder, as the case may be, shall assume the defense of such action,
including the employment of counsel and payment of expenses. Such Underwriter or
such controlling person shall have the right to employ its or their own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or of such controlling person unless the employment
of such counsel shall have been authorized in writing by the Company or such
Selling Stockholder in connection with the defense of such action or the Company
or such Selling Stockholder shall not have employed counsel to have charge of
the defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company or such
Selling Stockholder (in which case the Company or such Selling Stockholder shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the Company or such Selling Stockholder, as the case may be,
and paid as incurred (it being understood, however, that the Company or such
Selling Stockholder shall not be liable for the expenses of more than one
separate counsel in any one action or series of related actions in the same
jurisdiction representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, the
Company or such Selling Stockholder shall not be liable for any settlement of
any such claim or action effected without its written consent.
(b) Each Underwriter severally agrees to indemnify, defend
and hold harmless the Company, its directors and officers, each
Selling Stockholder and any person who controls the Company or
any Selling Stockholder within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act from and against any loss,
expense, liability or claim (including the reasonable cost of
investigation) which,
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jointly or severally, the Company, any Selling Stockholder or any
such person may incur under the Act or otherwise, insofar as such
loss, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material
fact contained in and in conformity with information furnished in
writing by or on behalf of such Underwriter through you to the
Company expressly for use with reference to such Underwriter in
the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company)
or in a Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in
connection with such information required to be stated either in
such Registration Statement or Prospectus or necessary to make
such information not misleading.
If any action is brought against the Company, any Selling Stockholder or
any such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company, such Selling
Stockholder or such person shall promptly notify such Underwriter in writing of
the institution of such action and such Underwriter shall assume the defense of
such action, including the employment of counsel and payment of expenses. The
Company, such Selling Stockholder or such person shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Company, such Selling Stockholder or such person
unless the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such action or such
Underwriter shall not have employed counsel to have charge of the defense of
such action or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from or
additional to those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by such Underwriter and paid as incurred (it being
understood, however, that such Underwriter shall not be liable for the expenses
of more than one separate counsel in any one action or series of related actions
in the same jurisdiction representing the indemnified parties who are parties to
such action). Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of such Underwriter.
(c) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a) and (b)
of this Section 11 in respect of any losses, expenses,
liabilities or claims referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified
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party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, expenses,
liabilities or claims (i) 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 hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Selling
Stockholders on the one hand and of the Underwriters on the other
in connection with the statements or omissions which resulted in
such losses, expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one
hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (net
of underwriting discounts and commissions but before deducting
expenses) received by the Company and the Selling Stockholders
bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault of the Company and the
Selling Stockholders on the one hand and of the Underwriters on
the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to
information supplied by the Company, by the Selling Stockholders
or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, expenses, liabilities and
claims referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
(d) The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 11 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
that does not take account of the equitable considerations
referred to in subsection (c) above.
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Notwithstanding the provisions of this Section 11, no Underwriter
shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten
by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue statements or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriter's obligations to contribute pursuant to this Section
11 are several in proportion to their respective underwriting
commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 11 and the covenants, warranties and representations
of the Company and the Selling Stockholders contained in this
Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, or any
person who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, or by or on
behalf of the Company, its directors and officers, any Selling
Stockholder or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange
Act, and shall survive any termination of this Agreement or the
issuance and delivery of the Shares. The Company, each Selling
Stockholder and each Underwriter agree promptly to notify the
others of the commencement of any litigation or proceeding
against it and, in the case of the Company, against any of the
Company's officers and directors in connection with the issuance
and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
12. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if
to the Underwriters, shall be sufficient in all respects if delivered or
sent to Xxxxxx, Read & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
Attention: Syndicate Department, if to the Company, shall be sufficient in
all respects if delivered or sent to the Company at the offices of the
Company at 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention:
______________ and, if to any of the Selling
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Stockholders, shall be sufficient in all respects if delivered or sent to
the Representatives of the Selling Stockholders at ______________,
Attention: ______________.
13. Construction. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York. The Section
headings in this Agreement have been inserted as a matter of convenience of
reference and are not a part of this Agreement.
14. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters, the Company, the
Selling Stockholders and the controlling persons, directors and officers
referred to in Section 11 hereof, and their respective successors, assigns,
executors and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
15. Counterparts. This agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement
among the parties.
If the foregoing correctly sets forth the understanding among the Company,
the Selling Stockholders and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company, the Selling Stockholders and
the Underwriters, severally.
Very truly yours,
DIGICON INC.
By ________________________________
Title:
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE B ATTACHED HERETO
By _________________________________
Attorney-in-Fact
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31
Accepted and agreed to as of the date
first above written, on behalf of themselves
and the other several Underwriters named
in Schedule X.
XXXXXX, READ & CO. INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXX & XXXXXXX, INC.
By: XXXXXX, READ & CO. INC.
By:
---------------------------------
Title:
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32
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
XXXXXX, READ & CO. INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXX & XXXXXXX, INC.
__________
Total __________
33
SCHEDULE B
Number of
Selling Stockholders Firm Shares
-------------------- -----------
__________ ____________
Total __________ ____________
34
SCHEDULE C
SIGNIFICANT SUBSIDIARIES
