ANCHOR GAMING
1,800,000 SHARES
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
----------------------
October , 1997
BT Alex. Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
As Representatives of the
Several Underwriters
c/o BT Alex. Xxxxx Incorporated
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Anchor Gaming (the "Company"), a Nevada corporation, and the persons
named in Schedule I annexed hereto (each a "Selling Stockholder"), hereby
confirm their agreement with you, as set forth below.
1. THE SECURITIES. Subject to the terms and conditions herein
contained, the Selling Stockholders, severally, propose to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you
are acting as representatives (the "Representatives"), an aggregate of
1,800,000 shares of common stock, par value $.01 per share, of the Company
(the "Common Stock"), in the respective amounts set forth opposite their
respective names in Schedule I (the "Firm Securities"). In addition, solely
for the purpose of covering over-allotments, Xxxxxxx X. Xxxxxx proposes to
grant to the Underwriters the option, exercisable by the Representatives of
the Underwriters, to purchase from such Selling Stockholder up to an
additional 270,000 shares of Common Stock (the "Additional Securities") as
set forth below. The Firm Securities and the Additional Securities that may
be sold to the Underwriters are hereinafter collectively referred to as the
"Securities."
-2-
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (SEC File No.
333-34755) and a related preliminary prospectus for the registration of the
Securities under the Securities Act of 1933, as amended (the "Act") and has
filed such amendments thereto, if any, as may have been required prior to the
date hereof.
As used in this Agreement, the term "Registration Statement" means
such registration statement, as amended at the time when it was or is
declared effective, including all financial statements and schedules and
exhibits thereto and including any information omitted therefrom pursuant to
Rule 430A under the Rules and Regulations ("Rule 430A"), if applicable, and
included in the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus relating to the Securities as filed with
such registration statement or any amendment thereto (including the
prospectus, if any, included in such registration statement or any amendment
thereto at the time it was or is declared effective if declared effective
prior to the execution and delivery of this Agreement); and the term
"Prospectus" means the prospectus relating to the Securities as first filed
with respect to such registration statement with the Commission pursuant to
Rule 430A and Rule 424(b) under the Rules and Regulations ("Rule 424(b)"), if
required, or, if no prospectus is required to be filed pursuant to Rule 430A
or Rule 424(b), such term means the prospectus included in such registration
statement at the time it became or becomes effective; PROVIDED that if a
revised Prospectus shall be provided to the Underwriters by the Company and
the Selling Stockholders for use in connection with the offering and sale of
the Securities that differs from the prospectus on file at the Commission at
the time such registration statement becomes effective or as first filed
under Rule 430A and Rule 424(b), the term "Prospectus" shall refer to the
revised prospectus from and after the time it is first provided to the
Underwriters for such use. If the Company has filed an abbreviated
registration statement to register additional securities pursuant to Rule
462(b) under the Act (the "Rule 462 Registration Statement") then any
reference herein to "Registration Statement" shall be deemed to include such
Rule 462 Registration Statement. All references in this Agreement to the
Registration Statement, Preliminary Prospectus and Prospectus and to
financial statements and schedules and other information that is
"contained," "included," "set forth," "described in" or "stated" therein (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information that is or is
deemed to be incorporated by reference therein; and all ref-
-3-
erences in this Agreement to amendments or supplements to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be deemed to
mean and include the filing of any document under the Securities Exchange Act
of 1934, as amended (the "1934 Act"), that is or is deemed to be incorporated
by reference therein.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The registration statement originally filed with the Commission
with respect to the Securities, including the form of prospectus, together
with all amendments thereto, has been prepared by the Company in conformity
in all material respects with the requirements of the Act and the rules and
regulations (the "Rules and Regulations") of the Commission thereunder and
the Company meets all the requirements for filing on Form S-3. The
Registration Statement at the time it was or will be declared effective and
at the Closing Date (as hereinafter defined) complies and will comply in
all material respects with the requirements of the Act and the Rules and
Regulations.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus nor instituted any proceeding for
such purpose. When the Registration Statement or any amendment thereto was
or is declared effective and on the Closing Date (as hereinafter defined),
it did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus,
and any amendments or supplements thereto on the date first filed with
the Commission pursuant to Rule 424(b) (or if not filed, on the date
first provided to the Underwriters in connection with the offering and
sale of the Securities) and on the Closing Date, (i) complied and will
comply in all material respects with the requirements of the Act and the
Rules and Regulations, and (ii) did not and will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The foregoing provisions of this paragraph (b) do not apply to statements
or omissions in the Registration Statement or any amendment thereto or
the Prospectus or any amendment or supplement thereto made in
-4-
reliance upon and in conformity with written information with respect to
the Underwriters furnished to the Company by BT Alex. Xxxxx Incorporated
specifically for use therein.
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations (the "1934
Act Regulations") of the Commission thereunder, and when read together with
the other information in the Prospectus, at the time the Registration
Statement and any amendments thereto became or becomes effective and at the
Closing Date, did not and 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 the light of the
circumstances under which they were made, not misleading.
(d) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Nevada. Each of the
corporations identified in Exhibit 21 to the Annual Report on Form 10-K
of the Company for the period ended June 30, 1997 and filed with the
Commission (collectively, the "Subsidiaries" and individually, a
"Subsidiary") is a corporation duly incorporated, validly existing and in
good standing under the laws of the state of its incorporation. Except
as otherwise set forth in the Registration Statement, the Company owns,
free and clear of all mortgages, pledges, liens, security interests,
conditional sale agreements and other charges (except for inchoate
statutory obligations that are not yet due and payable and other
immaterial liens), all of the outstanding shares of the capital stock of
each Subsidiary, and all of such shares have been duly and validly
authorized and issued and are fully paid and non-assessable. Except
where the failure to be so qualified or licensed would not have a
material adverse effect on the business, business prospects, financial
condition, results of operation, earnings or properties of the Company
and its Subsidiaries, taken as a whole (a "Material Adverse Effect") and
except as otherwise disclosed under the Registration Statement, (i) each
of the Company and the Subsidiaries has the power and authority
(corporate, governmental, regulatory and otherwise) and all approvals,
orders, licenses, certificates, permits and other governmental
authorizations necessary to conduct all of the ac-
-5-
tivities conducted by it, to own or lease all of the assets owned or leased
by it and to conduct its business as described in the Registration
Statement and the Prospectus and (ii) each is duly licensed or qualified
to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it
and/or the character of the assets owned and leased by it makes such
license or qualification necessary. Except as otherwise set forth in the
Registration Statement (including, without limitation, the interest of
the Company in that certain joint venture formed with Revenue Properties
Company) and except for the shares of the stock of each Subsidiary owned
by the Company, neither the Company nor any Subsidiary owns any material
shares of stock or any other material equity securities of any
corporation or have any material equity interest in any firm,
partnership, association or other entity.
(e) The authorized, issued and outstanding capital stock of the
Company as of , 1997 is as set forth under the caption "Description
of Capital Stock" in the Registration Statement and the Prospectus and all
such capital stock, including all Securities to be sold by the Selling
Stockholders, has been validly authorized and issued and is fully paid
and non-assessable. Other than as disclosed in the Prospectus, the
Company does not have outstanding any options to purchase, or any rights
or warrants to subscribe for, or any securities or obligations
convertible into, or any contracts or commitments to issue or sell shares
of capital stock or any warrants or convertible securities. No holder of
securities of the Company or any Subsidiary is entitled to have such
securities registered under the Registration Statement.
(f) The consolidated financial statements of the Company and the
Subsidiaries (including the footnotes thereto) filed with and as part of
the Registration Statement and the Prospectus present fairly the combined
consolidated financial position, results of operation and cash flows of
the Company and the Subsidiaries as of the respective dates thereof and
for the respective periods covered thereby, all in conformity with
generally accepted accounting principles ("GAAP") applied on a basis
consistent with prior periods. The unaudited consolidated financial
statements and the related notes included in the Registration Statement
and the Prospectus present fairly the respective consolidated financial
position, results of operations and cash flows of the Company and its
xxxxxxx-
-6-
dated subsidiaries at the dates and for the periods to which they relate,
subject to year end audit adjustments, have been prepared in accordance
with generally accepted accounting principles applied on a consistent
basis and have been prepared on a basis substantially consistent with
that of the audited financial statements referred to above. The summary
and selected financial data included in the Registration Statement and
the Prospectus present fairly the information shown therein and have been
prepared and compiled on a basis consistent with the audited and
unaudited financial statements included therein, except as otherwise
stated therein. Deloitte & Touche, LLP, who has reported on such
financial statements, is an independent accountant with respect to the
Company as required by the Act and the Rules and Regulations.
(g) The statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company and the
Subsidiaries believe to be reliable and accurate.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus except as set
forth in or contemplated by the Registration Statement and the
Prospectus, (i) neither the Company nor any Subsidiary has incurred or
will have incurred any liabilities or obligations, direct or contingent,
or entered into any transactions not in the ordinary course of business,
except for liabilities, obligations or transactions that are not material
to the Company and its subsidiaries, taken as a whole; (ii) neither the
Company nor any Subsidiary has paid or declared nor will pay or declare
any dividends or other distributions on its capital stock and (iii) there
has not been and will not have been any change in the capitalization of
the Company (except for the exercise of warrants or options referred to
in the Registration Statement) or any Subsidiary or any material adverse
change in the business, business prospects, financial condition or
results of operations of the Company or any Subsidiary or in the
condition of the Company or any Subsidiary or in the value of the assets
of the Company and the Subsidiaries, in each case taken as a whole,
arising for any reason whatsoever.
(i) There are no actions, suits or proceedings at law or in equity
pending or, to the knowledge of the Company, threatened, against or
affecting the Company or any Subsidiary, any of their respective assets
or any of their
-7-
respective officers or directors, before or by any federal, state, county
or local commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, that could reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any
Subsidiary is involved in any labor dispute (nor, to their knowledge, is
any such dispute threatened) that would have a Material Adverse Effect.
(j) Each of the Company and the Subsidiaries has complied with all
laws, regulations and orders applicable to it or its business, except for
any violation of which would not have a Material Adverse Effect. Each of
the Company and the Subsidiaries has in all material respects performed
all of the obligations required to be performed by it, and is not in
default under any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, letter of credit agreement, bond, debenture,
note agreement or other evidence of indebtedness, lease, contract or
other agreement or instrument to which it is a party or by which it or
any of its property is bound, except for such failures to perform or
defaults as would not have a Material Adverse Effect, and, to the
knowledge of the Company, no other party under any such agreement or
instrument to which the Company or any Subsidiary is a party is in
material default in any respect thereunder, except for such defaults as
would not have a Material Adverse Effect.
(k) The Company, to the extent required by Section 13(b)(2) of the
1934 Act, (i) keeps books, records and accounts that, in reasonable
detail, accurately and fairly reflect the transactions and dispositions
of the assets of the Company and its Subsidiaries and (ii) maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization, (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles or any other
criteria applicable to such statements and to maintain accountability for
assets, (C) access to assets is permitted only in accordance with
management's general or specific authorization and (D) the recorded
value of assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
-8-
(l) Neither the Company nor any Subsidiary is in violation of its
Certificate of Incorporation or By-laws, in each case as amended as of
the date hereof.
(m) The Securities have been duly authorized by the Company and
will be, upon payment therefor in accordance with the terms hereof, duly
authorized, validly issued, fully paid and nonassessable and not subject
to preemptive rights or similar contractual rights to purchase securities
issued by the Company. The Securities conform in all material respects
to all statements with regard thereto contained in the Registration
Statement and the Prospectus.
(n) The Company has all requisite corporate power and authority to
execute and deliver and perform its obligations under this Agreement and
to consummate the transactions contemplated hereby. This Agreement and
the consummation by the Company of the transactions contemplated hereby
have been duly authorized by the Company. This Agreement has been duly
authorized, executed and delivered by the Company; no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation by the Company of the transactions on its
part herein contemplated, except such as may have been obtained under the
Act or otherwise and such as may be required under state securities or
"Blue Sky" laws; the performance of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with or result
in a breach or violation of any of the terms and provisions of or
constitute a default under the Certificate of Incorporation or By-laws of
the Company or any Subsidiary. Except, in each case, for instances that
would not result in a Material Adverse Effect or a material adverse
effect on the ability of the Company to perform its obligations under
this Agreement, the performance of this Agreement and consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms and provisions of or constitute a
default under or result in the creation or imposition of any lien,
charge, or encumbrance upon the assets or properties of the Company or
any Subsidiary, pursuant to any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, letter of credit agreement, bond,
debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or any of
-9-
their respective properties is bound, or under any statute or under any
order, rule or regulation applicable to the Company or any Subsidiary or
their respective businesses or properties or of any court or other
governmental body.
(o) Each of the Company and the Subsidiaries has good and
indefeasible title to all properties and assets owned by it, free and
clear of all liens, charges, encumbrances or restrictions, except such as
are described in or referred to in the Prospectus or are not material to
the business of the Company and its Subsidiaries, taken as a whole. Each
of the Company and the Subsidiaries has valid, subsisting and enforceable
leases for the real properties described in the Prospectus as leased by
it, with such exceptions as are not material or do not materially
interfere with the use made of such properties by it.
(p) There is no document or contract of a character required to be
described in the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as required; and no
statement in this Agreement or in any certificate or document required by
this Agreement to be delivered to you is, was when made, or as of the
Closing Date (as hereinafter defined) or any Option Closing Date (as
hereinafter defined) will be, inaccurate, untrue or incorrect in any
material respect.
(q) Except for instances that would not result in a Material
Adverse Effect, the Company and each of the Subsidiaries possess the
right to use all patents, patent applications, trademarks, trade names,
service marks, service names, copyrights and licenses necessary for the
conduct of the business, as presently conducted, of the Company and the
Subsidiaries and, except as disclosed in the Registration Statement or
Prospectus have not received any notice of conflict with the asserted
rights of others in respect thereof.
(r) The Company is not, and does not intend to conduct its business
in a manner that would cause it to become, an "investment company" as
defined in Section 3(a) of the Investment Company Act of 1940 as amended
(the "Investment Company Act").
(s) None of the Company, the Subsidiaries or an agent acting on their
behalf has taken or will take any action that might cause this Agreement or
the sale of the
-10-
Securities to violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System.
(t) Neither the Company nor any of its officers or directors or
affiliates (as defined in the Rules and Regulations) has taken or will
take, directly or indirectly, any action designed to stabilize or
manipulate the price of any security of the Company, or that has
constituted 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 any of the Securities in
violation of the Exchange Act or any applicable rules of the Nasdaq
National Market System ("NASDAQ").
(u) The Company and each Subsidiary have filed all federal, state
and material local income and franchise tax returns required to be filed
through the date hereof except for returns being contested in good faith
and have paid all taxes due and owing thereon except for amounts being
contested in good faith, and no material tax deficiency is currently
being asserted against the Company or any Subsidiary that could have a
Material Adverse Effect.
(v) Each of the Company and its Subsidiaries is in compliance with
all environmental laws and with the terms and conditions of any permit,
license or approval required thereunder in connection with the operation
of its business, property and assets where the failure to be in such
compliance could reasonably be expected to have, singly or in the
aggregate, a Material Adverse Effect; and, except as disclosed in the
Prospectus, neither the Company nor any of its Subsidiaries has any
liability, absolute or contingent, under any environmental law and there
is no civil, criminal or administrative action, suit, demand, hearing,
notice of violation or deficiency, investigation, proceeding or notice or
demand letter pending or threatened against the Company or any of its
Subsidiaries under any environmental law.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
Selling Stockholder severally represents and warrants to each Underwriter and
the Company that:
(a) Such Selling Stockholder has full right, power and authority to
enter into this Agreement and to sell, assign, transfer and deliver the
Firm Securities to be sold by such Selling Stockholder hereunder. This
Agree-
-11-
ment and the Power of Attorney attached hereto as Exhibit A have been
duly executed and delivered by such Selling Stockholder.
(b) Such Selling Stockholder will convey good and valid title to the
Securities to be delivered by such Selling Stockholder hereunder, free and
clear of all liens, encumbrances, equities and claims whatsoever.
Certificates in negotiable form for the aggregate number of Securities to
be sold by such Selling Stockholder have been placed in custody, under a
custody agreement with the Company as custodian in the form attached hereto
as Exhibit B.
(c) The information with respect to such Selling Stockholder, as
such, included in the Registration Statement and the Prospectus under the
caption "Principal and Selling Stockholders" and "Underwriting" does 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.
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated herein, except such as
may have been obtained under the Act or otherwise and such as may be
required under state securities or the "Blue Sky" laws.
(e) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms and provisions of or constitute a
default under or result in the creation or imposition of any lien, charge,
or encumbrance upon the assets or properties of such Selling Stockholder,
pursuant to any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, letter of credit agreement, bond, debenture, note agreement
or other evidence of indebtedness, lease, contract or other agreement or
instrument to which such Selling Stockholder is a party or under any
statute or under any order, rule or regulation applicable to such Selling
Stockholder or of any court or other governmental body.
(f) The Registration Statement, the Prospectus or any post-effective
amendment or supplement thereto will (when they become effective or are
filed with the Commis
-12-
sion, as the case may be), conform in all material respects to the
requirements of the Act and the Rules and Regulations and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(g) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to, or which has constituted,
or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of the Common Stock of the
Company and, other than as permitted by the Act or the Exchange Act, the
Selling Stockholder will not distribute any prospectus or other offering
material in connection with the offering of the Shares.
(h) Such Selling Stockholder (a) has no reason to believe that the
representations and warranties of the Company contained in Section 2 above
are not true and correct, (b) is familiar with the Preliminary Prospectus
and the Prospectus and (c) has no knowledge of any material fact, condition
or information not disclosed in the Preliminary Prospectus and the
Prospectus that could reasonable be expected to have a Material Adverse
Effect. The sale of the Firm Shares by such Selling Stockholder pursuant
hereto is not prompted by any information concerning the Company or the
Subsidiaries which is not set forth in the Registration Statement.
4. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, each of the Selling Stockholders agrees, severally and not jointly, to
sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from each of the Selling Stockholders,
at a purchase price of $[ ] per share, the number of Firm Securities
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Securities to be sold by each of the
Selling Stockholders, as set forth opposite their respective names in
Schedule I hereto by a fraction, the numerator of which is the aggregate
number of Firm Securities to be purchased by such Underwriter as set forth
opposite the name of such Underwriter in Schedule II hereto and the
denominator of which is the aggregate number of Firm Securities to be
purchased by all of the Under
-13-
writers from all the Selling Stockholders hereunder (subject to adjustment by
you to eliminate fractions). The Representatives shall release the Firm
Securities for public sale promptly after this Agreement becomes effective.
The Representatives may from time to time change the public offering price
and other terms of the offering after the initial public offering to such
extent as they may determine.
Certificates in negotiable form for the total number of Securities
to be sold hereunder by the Selling Stockholders have been placed in custody
with the Company, as custodian (the "Custodian") pursuant to the Custody
Agreements executed by the Selling Stockholders for delivery of all
Securities. Each Selling Stockholder specifically agrees that the Firm
Securities represented by the certificates held in custody for such Selling
Stockholder under the Custody Agreement are subject to the interest of the
Underwriters hereunder, and that the arrangements made by such Selling
Stockholder for such custody are to that extent irrevocable, and that the
obligations of such Selling Stockholder hereunder shall not be terminable by
any act or deed of the Selling Stockholder (or by any other person, or
entity, including the Company, the Custodian or the Underwriters) or by
operation of law or by the occurrence of any other event or events, except as
set forth in the Custody Agreement. If any such event should occur prior to
the delivery to the Underwriters of the Firm Securities hereunder,
certificates for the Firm Securities shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as if such event
had not occurred. The Custodian is authorized to receive and acknowledge
receipt of the proceeds of the sale of the Securities held by it against the
delivery of such Securities.
In addition, upon written notice from you to Xxxxxxx X. Xxxxxx, not
more than 30 days from the date hereof, the Underwriters may purchase from
time to time all or less than all of the Additional Securities at the
purchase price per share to be paid for the Firm Securities solely to cover
over-allotments. Xxxxxxx X. Xxxxxx agrees to sell to the Underwriters such
Additional Securities and the Underwriters agree, severally and not jointly,
to purchase such Additional Securities. Such Additional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Securities set forth opposite such Underwriter's
name bears to the total number of shares of Firm Securities (subject to
adjustment by you to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in
connection with the offering of the Firm Securities. This option may be
exercised at any time on or be
-14-
fore the thirtieth day following the date hereof, by written notice to
Xxxxxxx X. Xxxxxx. Such notice shall set forth the aggregate number of
Additional Securities as to which the option is being exercised, and the date
and time when the Additional Securities are to be delivered (such date and
time being herein referred to as an "Option Closing Date"); PROVIDED,
HOWEVER, that no Option Closing Date shall be earlier than the Closing Date
(as defined below) nor earlier than the second business day after the date on
which notice of the exercise of the option shall have been given nor later
than the eighth business day after the date on which notice of the option
shall have been given. No Additional Securities shall be sold or delivered
unless the Firm Securities previously have been, or simultaneously are, sold
and delivered. The right to purchase the Additional Securities or any
portion thereof may be surrendered and terminated at any time upon notice by
you to Xxxxxxx X. Xxxxxx.
(b) Certificates in definitive form for the Firm Securities that
each Underwriter has agreed to purchase hereunder, and in such denomination
or denominations and registered in such name or names as such Underwriter
requests upon notice to the Selling Stockholders at least 48 hours prior to
the Closing Date, shall be delivered by or on behalf of the Selling
Stockholders to the Underwriters, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of same day
funds, or such other payment procedures agreed to by the parties, to the
account designated by each Selling Stockholder. Such delivery of and payment
for the Firm Securities shall be made at the offices of Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York
time, on October , 1997, or at such other place, time or date as you, the
Company and the Selling Stockholders may agree upon or as you may determine
pursuant to Section 9(a) hereof, such time and date of delivery against
payment being herein referred to as the "Closing Date." The Selling
Stockholders will make such certificates for the Firm Securities available
for checking and packaging by the Underwriters at the offices of BT Alex.
Xxxxx Incorporated in [New York, New York] at least 24 hours prior to the
Closing Date.
In the event the option with respect to the Additional Securities is
exercised, certificates in definitive form for the Additional Securities that
such Underwriter has agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as such Underwriter requests
upon notice to Xxxxxxx X. Xxxxxx at least 48 hours prior to the Option Closing
Date, shall be delivered by Xxxxxxx X. Xxxxxx to the Underwriters, against
payment by or on behalf of
-15-
such Underwriter of the purchase price therefore by wire transfer of same day
funds or such other payment procedures agreed to by the parties, to the
account designated by Xxxxxxx X. Xxxxxx. Such delivery of and payment for
the Additional Securities shall be made at each Option Closing Date at the
above-mentioned offices. Xxxxxxx X. Xxxxxx will make certificates for the
Additional Securities available for inspection, checking and packaging by the
Underwriters at the offices in New York, New York of BT Alex. Xxxxx
Incorporated at least 24 hours prior to each Option Closing Date.
5. OFFERING BY THE UNDERWRITERS. After the Registration Statement
becomes effective, the Underwriters propose to offer for sale to the public
the Securities at the price and upon the terms set forth in the Prospectus
relating to the Securities.
6. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Underwriters that:
(a) The Company will, if the registration statement is not
effective at the time of the execution and delivery of this Agreement,
prepare and timely file with the Commission an amendment to the
registration statement that includes the form of final prospectus, which
amendment and form of final prospectus shall contain all required
information with respect to the Securities and the offering thereof,
and, if required by Rule 424(b), a prospectus under Rule 424(b) (in each
case only if the Representatives or their counsel have not reasonably
objected thereto after having been furnished a copy thereof prior to the
proposed filing thereof), and in each case will notify the
Representatives promptly of such filing and 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 promptly. If required, the Company will file the Prospectus
and any amendments or supplements thereto with the Commission in the
manner and within the time period required by Rule 424(b) (but only if
the Representatives or their counsel have not reasonably objected
thereto promptly after having been furnished a copy thereof a reasonable
time prior to the proposed filing thereof). During any time when a
prospectus relating to the Securities is required to be delivered under
the Act, the Company (i) will comply with all requirements imposed upon
it by the Act and the Rules and Regulations to the extent necessary to
permit the continuation of sales of or dealings in the Securities in
ac
-16-
cordance with the provisions hereof and of the Prospectus, as then
amended or supplemented, and (ii) will not file with the Commission the
Prospectus or the amendment referred to in the second sentence of Section
2(a) hereof or any amendment or supplement to such Prospectus or any
amendment to the Registration Statement of which the Representatives and
their counsel shall not previously have been advised and furnished a copy
for a reasonable period of time prior to the proposed filing and as to
which filing the Representatives and their counsel shall not have given
their respective consent, which consent will not be unreasonably withheld
or delayed. The Company will prepare and will file with the Commission,
in accordance with the Act and the Rules and Regulations, promptly upon
request by the Representatives or counsel for the Representatives, any
amendments to the Registration Statement or amendments or supplements to
the Prospectus that may be necessary or reasonably advisable in
connection with the distribution of the Securities by the Underwriters,
and the Company will use its best efforts to cause any such amendment to
the Registration Statement to be declared effective by the Commission
promptly. The Company will advise the Representatives, promptly after it
receives notice thereof, of the time when the Registration Statement or
any amendment thereto has been filed or declared effective or the
Prospectus or any amendments or supplements thereto have been filed.
(b) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, or any
amendments or supplements thereto, (ii) the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, (iii) the
institution, threat or contemplation of any proceeding for any such purpose
or (iv) any request made by the Commission for amending the Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance
of any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will cooperate with the Representatives in arranging
for the qualification of the Securities
-17-
for offering and sale under the securities or "Blue Sky" laws of such
jurisdictions in the United States and Canada as the Representatives may
designate and will continue such qualifications in effect for as long as
may be necessary to complete the distribution of the Securities; PROVIDED
that in connection therewith the Company shall not be required to qualify
as a foreign corporation or to execute a general consent to service of
process in any jurisdiction or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise
subject.
(d) During such time as a prospectus relating to the Securities is
required to be delivered under the Act, if after due inquiry, the Company
should become aware of any event that occurs, and as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if the
Company should be of the opinion that for any other reason it is necessary
at any time to amend or supplement the Prospectus to comply with the Act or
the Rules and Regulations, the Company will promptly notify the
Representatives and their counsel thereof and the Company will prepare and,
subject to Section 6(a) hereof, will file with the Commission, at its sole
expense, an amendment to the Registration Statement or an amendment or
supplement to the Prospectus (in form and substance reasonably satisfactory
to the Representatives and their counsel and in compliance with the Act and
the Rules and Regulations) so that the Prospectus as so supplemented or
amended will not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or so that the Prospectus will comply with law, and
will deliver to the Representatives, without charge, such number of copies
thereof as they may reasonably request.
(e) The Company will, without charge, provide (i) to the
Representatives and to their counsel a signed copy of the registration
statement originally filed and each amendment thereto (in each case
including exhibits thereto) and the Registration Statement and (ii) so long
as a prospectus relating to the Securities is required to be delivered under
the Act, as many copies of each Pre
-18-
liminary Prospectus and the Prospectus relating to the Securities and any
amendment or supplement thereto as each Underwriter may reasonably
request.
(f) The Company, as soon as reasonably practicable, will make
generally available to holders of the Securities and to the Underwriters
consolidated earning statements of the Company (which need not be certified
by an independent public accountant) that satisfy the provisions of Section
11(a) of the Act and Rule 158 thereunder.
(g) For and during the period ending five years after the effective
date of the Registration Statement, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters copies
of all reports and other communications (financial or otherwise) furnished
by the Company to its securityholders generally and copies of any reports
or financial statements furnished to or filed by the Company with the
Commission or any national securities exchange on which any class of
securities of the Company may be listed.
(h) Prior to the Closing Date and any Option Closing Date, as the
case may be, the Company will furnish to the Representatives, as soon as
they have been prepared and are available, a copy of any unaudited interim
consolidated financial statements of the Company and any pro forma
information for any period subsequent to the period covered by its most
recent financial statements included in the Registration Statement and the
Prospectus.
(i) The Company will file with the Nasdaq National Market System all
documents and notices required by the Nasdaq National Market System of
companies that have issued securities that are traded in the
over-the-counter market and quotations for which are reported by the Nasdaq
National Market System.
(j) The Company will not at any time, directly or indirectly, take
any action designed, or that might reasonably be expected, to cause or
result in, or that will constitute, stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of any
of the Securities in violation of the Exchange Act or any applicable rules
of the Nasdaq National Market System.
-19-
(k) If, prior to the completion of the distribution of the Securities,
the Company commences engaging in business with the government of Cuba or
with any person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commissioner with the
Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus relating to
the Securities, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
7. COVENANTS OF SELLING STOCKHOLDERS. Each Selling Stockholder
agrees with the several Underwriters as follows:
(a) Such Selling Stockholder will cooperate to the extent necessary
to cause the Registration Statement or any post-effective amendment thereto
to become effective at the earliest possible time.
(b) Such Selling Stockholder will use such Selling Stockholder's
reasonable best efforts to do or perform all things required to be done or
performed by it prior to the Closing Date to satisfy all conditions
precedent to the delivery of the Securities.
(c) During a period of 90 days from the date hereof ("Lock-up
Period"), such Selling Stockholder will not, without the Representatives'
prior written consent, offer, sell, contract to sell, or otherwise dispose
of, directly or indirectly, any shares of Common Stock or any interests
therein, or any securities convertible into, or exchangeable for, shares of
Common Stock, or rights to acquire the same except for Securities issued
pursuant to this Agreement.
(d) Such Selling Stockholder 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 the Common Stock to
facilitate the sale or resale of the Securities in violation of the
Exchange Act or any applicable rules of the Nasdaq National Market System.
(e) Each Selling Stockholder agrees to notify the Representatives
promptly of any information that comes to
-20-
such Selling Stockholder's attention that would cause such Selling
Stockholder to have reason to believe that his or her representations,
warranties and statements in this Agreement are not accurate in all
material respects.
(f) Except as herein contemplated with respect to the Securities to
be included in the Registration Statement, each Selling Stockholder agrees
to waive any registration rights to which such Selling Stockholder may be
entitled in connection with the public offering herein contemplated.
8. EXPENSES. The Selling Stockholders, jointly and severally, agree
to pay all costs and expenses incident to the performance of their
obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated, as
provided in this Section 8 hereof including all costs and expenses incident
to (i) the printing or other production of documents with respect to the
transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto and
the Registration Statement, any Preliminary Prospectus and the Prospectus and
any amendment or supplement thereto, (ii) the printing (or reproduction) and
delivery of this Agreement, the Securities, any Blue Sky Memoranda and all
other documents and agreements printed (or reproduced) and delivered in
connection with the offering of the Securities, (iii) all arrangements
relating to the delivery to the Underwriters of copies of the foregoing
documents, (iv) the fees and disbursements of the counsel, the accountants
and any other experts or advisors retained by the Company or its
subsidiaries, (v) preparation (including printing), issuance and delivery to
the Underwriters of certificates evidencing the Securities, (vi) the
qualification of the Securities in the United States and Canada under state
securities and "Blue Sky" laws, including filing fees and reasonable fees and
disbursements of counsel for the Underwriters relating thereto, (vii) the
filing fees of the Commission and the National Association of Securities
Dealers, Inc. relating to the Securities, (viii) expenses of the Company and
its subsidiaries in connection with any meetings with prospective investors
in the Securities, (ix) advertising relating to the offering of the
Securities (other than as shall have been specifically approved in writing by
the Underwriters to be paid by the Underwriters), (x) the fees and expenses
incurred in connection with the quotation of the Securities on the Nasdaq
National Market System and (xi) the costs and expenses incident to the
performance by the Selling Stockholders of their obligations hereunder and in
connection with the offer, sale and delivery of
-21-
the Securities to be sold by it, including any stock transfer taxes payable
upon the sale of such Securities to the Underwriters, the fees and expenses
of any counsel retained by them and the underwriting discounts and
commissions payable to the Underwriters.
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 9 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 12 hereof or because of any failure, refusal or inability
on the part of the Company, any of the Company's subsidiaries or any Selling
Stockholder to perform all obligations and satisfy all conditions on their
respective parts to be performed or satisfied hereunder (other than solely by
reason of a default by the Underwriters of its obligations hereunder after
all conditions hereunder have been satisfied in accordance herewith), the
Selling Stockholders, jointly and severally, will promptly reimburse the
Underwriters upon demand for all reasonable out-of-pocket expenses (including
reasonable fees and disbursements of counsel for the Underwriters) that shall
have been incurred by the Underwriters in connection with the proposed
purchase and sale of the Securities not so delivered.
9. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation of
the Underwriters to purchase and pay for the Firm Securities on the Closing Date
and the Additional Securities on each Option Closing Date shall be subject to
the following additional conditions:
(a) If the registration statement, as amended, with respect to the
Securities has not been declared effective as of the time of execution
and delivery hereof, the registration statement shall have been declared
effective not later than 11:00 A.M., New York City time, on the date of
this Agreement or, if any post-effective amendment to the Registration
Statement has been filed, 11:00 A.M., New York City time, on the date on
which such post-effective amendment to the Registration Statement has
been filed with the Commission, or such later time and date as shall have
been expressly consented to by the Representatives in writing; if
required, the Prospectus and any amendments or supplements thereto shall
have been timely filed in accordance with Rule 430A and Rule 424(b); no
stop order suspending the effectiveness of the Registration Statement or
any amendment thereto shall have been issued and no proceedings for that
purpose shall have been instituted or,
-22-
to the best knowledge of the Company or the Underwriters, shall be
contemplated or threatened by the Commission.
(b) The Underwriters shall have received an opinion, in form and
substance satisfactory to the Underwriters and Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Underwriters, dated the Closing Date and each Option
Closing Date, as the case may be, and addressed to the Underwriters, of
Xxxxxx & Xxxx, L.L.P. counsel for the Company and its subsidiaries to the
effect that:
(i) The Company and each Subsidiary is a corporation duly
incorporated, validly existing and in good standing under the laws
of the state of its incorporation. Each of the Company and the
Subsidiaries has the corporate power and authority to conduct its
business substantially as described in the Registration Statement
and the Prospectus and is duly licensed or qualified to do business
and in good standing as a foreign corporation in all jurisdictions
in which the Company and each Subsidiary has offices or employees or
property owned or leased by them makes such qualification or license
necessary except where the failure to so qualify or be licensed
would not have Material Adverse Effect.
(ii) No authorization, approval, consent or license of any
state or federal governmental or regulatory body, except as may be
required under the Act or the "Blue Sky" laws of the various
jurisdictions or state laws relating to gaming or gaming machines or
devices (except as specifically stated), is required in connection
with the (A) authorization, issuance, transfer, sale or delivery of
the Securities under this Agreement; (B) execution, delivery and
performance of this Agreement by the Company; (C) taking of any
action contemplated herein or in the Registration Statement or
Prospectus (other than with respect to state laws relating to gaming
or gaming machines or devices), or if so required all such
authorizations, approvals, consents and licenses, specifying the
same, have been obtained and are in full force and effect.
(iii) The Company has an authorized and outstanding capital
stock, and, to the knowledge of such counsel, stock options and
warrants as set forth in the Registration Statement and the
Prospectus. The
-23-
outstanding shares of the Common Stock are, and all of the
Securities will be, upon sale and payment therefor under this
Agreement, duly authorized, validly issued, fully paid and
nonassessable, and are not subject to statutory preemptive rights.
The Common Stock has been duly authorized for quotation on the
Nasdaq National Market. All issuances of securities by the Company
were exempt from, or complied in all respects with, the registration
or qualification provisions of all applicable federal and state
securities laws.
(iv) All of the issued and outstanding shares of the capital
stock of each Subsidiary are validly issued, fully paid and
nonassessable and, to such counsel's knowledge, all of the issued
and outstanding shares of stock of each Subsidiary are owned by the
Company free and clear of all mortgages, pledges, liens, security
interests, conditional sales agreements, charges and encumbrances of
every nature.
(v) To such counsel's knowledge, no holder of any securities of
the Company has the right to require registration of shares of the
Common Stock or other securities of the Company because of the
filing or effectiveness of the Registration Statement.
(vi) The Company is not an "investment company" as defined in
Section 3(a) of the Investment Company Act.
(vii) The Company has full corporate power and authority to enter
into this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company.
(viii) The Company possesses all state and federal authorizations,
approvals, consents and licenses necessary for the operation of a
gaming establishment at the Colorado Central Station Casino and the
Colorado Grande Casino.
(ix) The Registration Statement and the Prospectus, and each
amendment thereof or supplement thereto, comply in all material
respects as to form with the requirements of the Act and the Rules
and Regulations (except that no opinion need be expressed as to
financial statements, financial statement notes
-24-
and other financial and statistical data contained in the
Registration Statement or the Prospectus).
(x) The descriptions in the Registration Statement and
Prospectus of contracts and other documents are accurate in all
material respects and fairly present the information required to be
shown; and such counsel does not know of any 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 (including, for this purpose, all exhibits
filed with respect to any document incorporated by reference
therein) that are not described or filed as required; it being
understood that such counsel need express no opinion as to the
financial statements, financial notes or schedules or other
financial or statistical data included therein.
(xi) The Registration Statement has become effective under the
Act, and, to the knowledge of such counsel, 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. All filings required by Rule 424 and Rule
430A of the Rules and Regulations have been made.
(xii) The execution and delivery of this Agreement by the
Company, the consummation by the Company of the transactions herein
contemplated and the compliance with the terms of this Agreement do
not and will not conflict with or result in a breach of any of the
terms or provisions of or violate or constitute a default under, the
Certificate of Incorporation or By-laws of the Company or any
Subsidiary, or any material indenture or mortgage known to such
counsel or other material agreement or instrument known to such
counsel to which the Company or any Subsidiary, is a party or by
which the Company or any Subsidiary or any of their respective
properties is bound, or any existing federal or state statute, rule
or regulation, or any judgment, order or decree known to such
counsel, of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
Subsidiary or any of their respective properties.
-25-
Such counsel shall also state that such counsel has participated in
the preparation of the Registration Statement and the Prospectus and
although such counsel has not independently checked the accuracy or
completeness of or otherwise verified, and such counsel is not passing
on and does not assume responsibility for the accuracy or completeness
of, the Registration Statement or the Prospectus, such counsel has
generally reviewed and discussed such information with representatives of
the Company, the Underwriters and their counsel and accountants for the
Company. Based on such review and discussion, nothing has come to the
attention of such counsel to lead them to believe that, both as of the
date on which the Registration Statement became effective and as of the
Closing Date and each Option Closing Date, as the case may be, either the
Registration Statement, or any amendment or supplement thereto, contained
or contains any untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or the Prospectus, or any
amendment or supplement thereto, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (except that no opinion need be expressed as to financial
statements, financial statement notes and other financial and statistical
data contained in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely as to all matters
of law other than the law of the United States or of the State of Texas
and the corporate law of the State of Nevada upon opinions of counsel
satisfactory to you, in which case the opinion shall state that they have
no reason to believe that you and they are not entitled so to rely.
(c) Concurrently with the execution and delivery of this Agreement
and on the Closing Date and each Option Closing Date, Xxxxxx Xxxxxx &
Xxxxxxx, special Nevada counsel to the Company, shall furnish to you an
opinion, in form and substance satisfactory to you, dated as of the date
of its delivery, to the effect that (i) such counsel has reviewed the
statements contained in the Prospectus under the heading "Regulation"
insofar as such statements relate to the laws of the State of Nevada and
federal gaming laws regarding the transportation of gaming devices
-26-
and nothing has come to the attention of such counsel to lead them to
believe that such statements contain any 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 (ii) no
authorization, approval, consent or license of any state or federal
governmental or regulatory body, except as may be required under the Act
or the "Blue Sky" laws of the various jurisdictions, is required in
connection with the (A) authorization, issuance, transfer, sale or
delivery of the Securities under this Agreement or (B) taking of any
action contemplated herein or in the Registration Statement or
Prospectus, or if so required all such authorizations, approvals,
consents and licenses specifying the same have been obtained and are in
full force and effect.
(d) Concurrently with the execution and delivery of this Agreement
and on the Closing Date and each Option Closing Date, Issacson,
Rosenbaum, Xxxxx & Xxxx, P.C., special Colorado counsel to the Company
shall furnish to you an opinion in form and substance satisfactory to
you, dated as of the date of its delivery, to the effect that (i) such
counsel has reviewed the statements contained in the Prospectus under the
heading "Regulation" insofar as such statements relate to the laws of the
State of Colorado and nothing has come to the attention of such counsel
to lead them to believe that such statements contain any 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
(ii) no authorization, approval, consent or license of any state or
federal governmental or regulatory body, except as may be required under
the Act or the "Blue Sky" laws of the various jurisdictions, is required
in connection with the (A) authorization, issuance, transfer, sale or
delivery of the Securities under this Agreement or (B) taking of any
action contemplated herein or in the Registration Statement or
Prospectus, or if so required all such authorizations, approvals,
consents and licenses specifying the same have been obtained and are in
full force and effect.
(e) The Selling Stockholders shall have furnished to you the
opinion of Xxxxxx and Xxxx, L.L.P. counsel for the Selling Stockholders,
or of such other counsel to the Selling Stockholders as shall be
satisfactory to Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters,
dated the Closing Date and each Option Closing Date, as the case may be,
to the effect that:
-27-
(i) This Agreement, the Powers of Attorney and the Custody
Agreements have been duly executed and delivered by each of the
Selling Stockholders.
(ii) The Selling Stockholders have the power and authority to
sell, transfer and deliver in the manner provided in this Agreement
the Securities being sold by the Selling Stockholders hereunder.
(iii) The delivery by the Selling Stockholders to the several
Underwriters of certificates for the Securities being sold hereunder
by the Selling Stockholders against payment therefor as provided
herein, assuming the Representatives purchased the Securities in good
faith without knowledge of any adverse claim, will pass good and valid
title to such Securities to the several Underwriters, free and clear
of all liens, encumbrances, equities and claims whatsoever.
(f) The Underwriters shall have received an opinion, in form and
substance reasonably satisfactory to the Underwriters, dated the Closing
Date and each Option Closing Date, as the case may be, and addressed to
the Underwriters, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, with respect to the sufficiency of certain corporate
proceedings and other legal matters relating to this Agreement and the
Securities and such other related matters as the Representatives may
reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx
shall have received, in form and substance satisfactory to such counsel,
and may rely upon, such certificates and other documents and information
as they may reasonably request to pass upon such matters.
(g) The Underwriters shall have received from Deloitte & Touche,
LLP a letter dated the date hereof and the Closing Date and each Option
Closing Date, as the case may be, and addressed to the Underwriters, in
substantially the form previously approved by the Representatives and in
form and substance reasonably satisfactory to the Representatives and
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters.
(h) The representations and warranties of the Company and the
Selling Stockholders contained in this Agreement shall be true and
correct in all material respects on and as of the date hereof and on and
as of the Closing Date and each Option Closing Date, as the case may be,
as
-28-
if made on and as of such date; the statements of the Company's officers
made pursuant to any certificate delivered in accordance with the
provisions hereof shall be true and correct in all material respects on
and as of the date made and on and as of the Closing Date and each
Option Closing Date, as the case may be; the Company and the Selling
Stockholders shall have complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date and each Option
Closing Date, as the case may be; and subsequent to the date of the most
recent financial statements in the Prospectus, there shall have been no
Material Adverse Change or any development involving a prospective
Material Adverse Change.
(i) The sale of the Securities by the Selling Stockholders hereunder
shall not be enjoined (temporarily or permanently) on the Closing Date or
any Option Closing Date, as the case may be.
(j) Subsequent to the respective dates as of which information is
given in the Prospectus, except in each case as described in the
Prospectus, none of the Company and its subsidiaries shall have incurred
any liabilities or obligations, direct or contingent (other than in the
ordinary course of business), that are material to the Company and its
subsidiaries, taken as a whole, or entered into any transactions not in
the ordinary course of business that are material to the Company and its
subsidiaries, taken as a whole, and there shall not have been any adverse
change in the capital stock or long-term indebtedness of the Company and
its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole.
(k) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the conduct of
the business and operations of each of the Company and its subsidiaries
shall not have been interfered with by strike, fire, flood, hurricane,
accident or other calamity (whether or not insured) or by any court or
governmental action, order or decree, and, except as otherwise stated
therein, the properties of each of the Company and its subsidiaries shall
not have sustained any loss or damage (whether or not insured) as a
result of any such occurrence, except any such interference, loss or
damage that would not have a Material Adverse Effect.
-29-
(l) The Underwriters shall have received certificates, in form and
substance reasonably satisfactory to the Underwriters and Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Underwriters, dated the Closing Date and each
Option Closing Date, as the case may be, and addressed to the
Underwriters, of the Company, executed by its chief executive officer or
president and the chief financial officer or chief accounting officer, to
the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects as if made
on and as of the Closing Date and each Option Closing Date, as the
case may be, and the Company has performed in all material respects
all covenants and agreements and satisfied all conditions to be
performed or satisfied at or prior to the Closing Date and each
Option Closing Date, as the case may be;
(ii) No stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued,
and, to the best of such officers' knowledge, no proceedings for
those purposes have been instituted or threatened or are
contemplated by the Commission;
(iii) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the
Company and its respective subsidiaries have not sustained any
material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or
any legal or governmental proceeding and there has not been any
material change in the capital stock, long-term debt, obligations
under capital leases or short-term borrowings or other agreements or
instruments relating to the ownership of the property of the Company
and its subsidiaries or any Material Adverse Change, or any
development involving a prospective Material Adverse Change, except
in each case as described in or contemplated by the Prospectus; and
(iv) To the best of such officers' knowledge and belief, the
sale of the Securities by the Selling Stockholders has not been
enjoined (temporarily or permanently).
-30-
(m) Each Selling Stockholder, shall have furnished to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of the
Selling Stockholders, prohibiting such persons from offering, selling,
contracting to sell or otherwise disposing, directly or indirectly, of
any shares of Common Stock or any interests therein, or any securities
convertible into, or exchangeable for, shares of Common Stock or rights
to acquire the same, during the Lock-up Period, without the prior written
consent of the Representatives.
(n) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct in all
material respects on and as of the date hereof and on and as of the
Closing Date and each Option Closing Date, as the case may be, as if made
on and as of such date, and you shall have received certificates, dated
as of the Closing Date and signed by or on behalf of the Selling
Stockholders to the effect set forth in this Section 9(h).
(o) The Selling Stockholders shall not have failed at or prior to
the Closing Date and each Option Closing Date, as the case may be, to
have performed or complied with any of their agreements herein contained
and required to be performed or complied with by them hereunder at or
prior to the Closing Date.
On or before the Closing Date and each Option Closing Date, as the
case may be, the Underwriters and Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, shall have received such further documents, opinions,
certificates and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and each of its
subsidiaries and the Selling Stockholders as they shall have heretofore
reasonably requested.
All such opinions, certificates, letters, schedules, documents or
instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all respects to
the Underwriters and Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters.
The Company and each of its subsidiaries and the Selling Stockholders shall
furnish to the Underwriters such conformed copies of such opinions,
certificates, letters, schedules, documents and instruments in such
quantities as the Underwriters shall reasonably request.
-31-
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each Selling Stockholder and each person, if any, who
controls any Underwriter or any Selling Stockholder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter, such Selling Stockholder or such controlling person may
become subject under the Act, the Exchange Act or otherwise, insofar as
any such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto or any Preliminary Prospectus or the Prospectus or
any amendments or supplements thereto or (B) any application or
other document, or any amendment or supplement thereto, executed by
the Company or based upon written information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify
the Securities under the securities or "Blue Sky" laws thereof or
filed with the Commission or any securities association or
securities exchange (each an "Application"); or
(ii) the omission or alleged omission to state in such
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto,
or any Application, a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and will reimburse, as incurred, each Underwriter, each Selling
Stockholder and each such controlling person for any reasonable legal or
other out-of-pocket expenses reasonably incurred by any such Underwriter,
Selling Stockholder or any such controlling person in connection with
investigating or defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action in
respect thereof; PROVIDED that the Company will not be liable in any such
case to the extent, but only to the extent, that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in such
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendments or supplements thereto, or
any Application in reliance upon and in conformity with written
information furnished
-32-
to the Company by the Underwriters with respect to the Underwriters, or
by the Selling Stockholders with respect to the Selling Stockholders,
specifically as such, for use therein; PROVIDED, FURTHER, that the
Company will not be liable to any Underwriter if such untrue statement
or omission or alleged untrue statement or omission was contained or made
in any Preliminary Prospectus and completely corrected in the Prospectus
and any such loss, liability, claim, damage or expense suffered or
incurred by any Underwriter resulted from any action, claim or suit by
any person who purchased Securities that are the subject thereof from any
Underwriter and such Underwriter failed to deliver or provide a copy of
the Prospectus relating to the Securities to such person with or prior to
the confirmation of the sale of such Securities sold to such person in
any case where delivery is required by the Act or the Rules and
Regulations, unless such failure to deliver or provide a copy of the
Prospectus relating to the Securities was a result of noncompliance by
the Company with Section 6(e)(ii) of this Agreement. This indemnity
agreement will be in addition to any liability that the Company may
otherwise have to the indemnified parties. The Company shall not be
liable under this Section 10 for any settlement of any claim or action
effected without its consent, which shall not be unreasonably withheld.
(b) Each Selling Stockholder agrees, severally but not jointly, to
indemnify and hold harmless the Company, its directors and officers who
signed the Registration Statement, each Underwriter and each person, if
any, who controls the Company or any Underwriter within the meaning of
Section 15 of the Act of Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which the Company, or any such
director, officer or underwriter or controlling person may become subject
under the Act, the Exchange Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any Application or (ii) the omission
or the alleged omission to state therein a material fact required to be
stated in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or necessary to make the statements therein not misleading; and,
subject to the limitation set forth immediately preceding this clause,
will reimburse, as incurred, any legal or other expenses incurred by the
Company or any such director, officer or Underwriter or controlling
person in connection with investigating or defending against or appearing
as a
-33-
third-party witness in connection with any such loss, claim, damage,
liability or action in respect thereof; PROVIDED, that each Selling
Stockholder shall not be liable under this Section 10 for any amounts in
excess of the product of the purchase price per share set forth in
Section 4 hereof and the number of shares being sold by such Selling
Stockholder hereunder. This indemnity agreement will be in addition to
any liability that the Selling Stockholders may otherwise have to the
indemnified parties. No Selling Stockholder shall be liable under this
Section 10 for any settlement of any claim or action effected without its
consent, which shall not be unreasonably withheld.
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors and each of its officers who
signed the Registration Statement, each Selling Stockholder and each
person, if any, who controls the Company or any Selling Stockholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities to which the
Company, or any such director, officer or Selling Stockholder or
controlling person may become subject under the Act, the Exchange Act, or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
any Application or (ii) the omission or the alleged omission to state
therein a material fact required to be stated in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or necessary to make
the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein;
and, subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses incurred
by the Company or any such director, officer or Selling Stockholder or
controlling person in connection with investigating or defending against
or appearing as a third-party witness in connection with any such loss,
claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability that the Underwriters may
otherwise have to the indemnified parties. No Underwriter shall be
liable under this Section 10 for any settlement of any claim or action
effected without its consent, which shall not be unreasonably withheld.
-34-
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of the commencement of any action for which such
indemnified party is entitled to indemnification under this Section 10,
such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 10, notify the
indemnifying party of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve it from any liability that
it may have to any indemnified party otherwise than under this Section
10. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; PROVIDED that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it
and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, then the indemnifying party
shall not have the right to direct the defense of such action on behalf
of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. After notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of
counsel appointed to defend such action, the indemnifying party will not
be liable to such indemnified party under this Section 10 for any legal
or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that in connection with
such action the indemnifying party shall not be liable for the expenses
of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or
circumstances, designated by any Underwriter in the case of paragraphs
(a) and (b) of this Section 10 or the Company and the Selling
Stockholder, in the case of paragraph (c) of this Section 10,
representing the indemnified parties under such paragraph (a), (b) or
paragraph (c), as the case may be, who are parties to such action or
actions), (ii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying
party
-35-
or (iii) the indemnifying party shall have failed to assume the defense or
retain counsel reasonably satisfactory to the indemnified party. After
such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the
consent of the indemnifying party, which consent shall not be
unreasonably withheld.
(e) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 10 is for any reason
unavailable or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in
respect thereof), each indemnifying party, in order to provide for just
and equitable contribution, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion
as is appropriate to reflect (i) the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party
on the other from the offering of the Securities or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative
fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof).
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 (x) the total proceeds from the
offering (net of underwriter's discounts and commissions but before
deducting expenses) received by the Selling Stockholders and (y) the
total underwriting discounts and commissions received by the
Underwriters, respectively, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by an
indemnified party or parties on the one hand, or the indemnifying party
or parties on the other, the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Company, the Selling Stockholders and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by PRO RATA or per capita allocation (even
if the Company
-36-
and the Selling Stockholders on the one hand and the Underwriters on the
other hand were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (e).
Notwithstanding any other provision of this paragraph (e), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate
exceed the total underwriting discounts and commissions received by such
Underwriter under this Agreement, less the aggregate amount of any
damages that such Underwriter has otherwise paid or been required to pay
by reason of the untrue or alleged untrue statements or the omissions or
alleged omissions to state a material fact, and 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. Notwithstanding any other
provision of this paragraph (e), no Selling Stockholder shall be liable
under this Section 10 for any amounts in excess of the product of the
purchase price per share set forth in Section 4 and the number of shares
being sold by such Selling Stockholder hereunder. For purposes of this
paragraph (e), each person, if any, who controls an Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company, and each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company
or any Selling Stockholder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company or such Selling Stockholder, as the case may
be.
11. SURVIVAL CLAUSE. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, the
Company's officers, the Selling Stockholders and the Underwriters set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company or any of its officers or
directors or any Selling Stockholder, the Underwriters or any controlling
person referred to in Section 10 hereof and (ii) delivery of and payment for
the Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 8 and 10 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
-37-
12. TERMINATION.
(a) This Agreement may be terminated in the sole discretion of the
Representatives by notice to the Company and the Selling Stockholders,
given prior to the Closing Date or Option Closing Date, as the case may
be, in the event that the Company or any of the Selling Stockholders
shall have failed, refused or become unable to perform all obligations
and satisfy all conditions on their respective parts to be performed or
satisfied hereunder at or prior thereto or, if at or prior to the Closing
Date or Option Closing Date, as the case may be:
(i) the Company or the Subsidiaries shall have sustained any loss
or interference with respect to its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any strike, labor dispute, slow down
or work stoppage or any legal or governmental proceeding, which loss
or interference, in the sole judgment of the Underwriters, has had
or has a Material Adverse Effect, or there shall have been, in the
sole judgment of the Underwriters, any event or development that,
individually or in the aggregate, has or could be reasonably likely
to have a Material Adverse Effect (including without limitation a
change in control of the Company), except in each case as described
in the Prospectus (exclusive of any amendment or supplement thereto
after the date hereof);
(ii) trading in securities of the Company or in securities
generally on the Nasdaq National Market System shall have been
suspended or minimum or maximum prices shall have been established
on the Nasdaq National Market System;
(iii) a banking moratorium shall have been declared by New York
or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency or (C) any material change in the financial
markets of the United States which, in the sole judgment of the
Representatives, makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities as
contemplated by the Registration Statement, as amended as of the
date hereof.
-38-
(b) Termination of this Agreement pursuant to this Section 12 shall
be without liability of any party to any other party except as provided
in Section 11 hereof.
13. INCREASE IN UNDERWRITERS' COMMITMENTS. If any Underwriter
shall default in its obligation to take up and pay for the Securities to be
purchased by it hereunder on the Closing Date or any Option Closing Date and
if the amount of Securities that all Underwriters so defaulting shall have
agreed but failed to take up and pay for does not exceed 10% of the total
number of Securities that the Underwriters are obligated to purchase on the
Closing Date or Option Closing Date, as the case may be, the non-defaulting
Underwriters shall take up and pay for (in addition to the Securities they
are obligated to purchase pursuant to Section 1 hereof) the number of
Securities agreed to be purchased by all such defaulting Underwriters on the
Closing Date or Option Closing Date, as the case may be, as hereinafter
provided. Such Securities 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 Securities shall be taken up and paid
for by all non-defaulting Underwriters PRO RATA in proportion to the
aggregate amount of Securities set opposite the names of such non-defaulting
Underwriters in Schedule II.
If a new allocation is made in accordance with the foregoing
provision, you shall have the right to postpone the Closing Date or Option
Closing Date, as the case may be, for a period not exceeding 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 13 with like effect as
if such substituted Underwriter had originally been named in Schedule II.
If the amount of Securities that all Underwriters so defaulting
shall have agreed but failed to take up and pay for exceeds 10% of the total
number of Securities that the Underwriters are obligated to purchase on the
Closing Date or Option Closing Date, as the case may be, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter (provided that if such default occurs with respect to Additional
Securities after the Closing Date, this Agreement will not terminate as to
the Firm Securities).
-39-
14. UNITED KINGDOM DISTRIBUTION. Each Representative represents
and agrees that (i) it will not offer or sell any shares of Common Stock to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances that will not involve an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995 ("the Regulations"); (ii) it will comply with all applicable provisions
of the Financial Sevices Xxx 0000 and the Regulations with respect to
anything done by it in relation to the shares of Common Stock, in, from or
otherwise involving the United Kingdom and (iii) it will only issue or pass
on to any person in the United Kingdom any document received by it in
connection with the offering of the shares of Common Stock if that person is
of a kind described in Article 11(3) of the Financial Sevices Xxx 0000
(Investment Advertisements) (Exemptions) Order 1995 or is a person to whom
such document may otherwise lawfully be issued or passed on.
15. INFORMATION SUPPLIED BY THE UNDERWRITERS AND SELLING
STOCKHOLDERS.
(a) The statements set forth in the last paragraph on the front
cover page of the Prospectus relating to the Securities and the first,
second, fourth, seventh and eighth paragraphs under the heading
"Underwriting" in the Prospectus relating to the Securities (to the
extent such statements relate to the Underwriters) constitute the only
information furnished by the Underwriters to the Company and the Selling
Stockholders for the purposes of Sections 2(b), 10(a) and 10(c) hereof.
Each Underwriter confirms that such statements, to the extent such
statements relate to each such Underwriter, are correct in all material
respects.
(b) As to the Selling Stockholder other than Xxxxxxx X. Xxxxxx, the
number of shares of Common Stock beneficially owned by such Selling
Stockholders prior to and after the offering of the Securities and
footnotes in Table 1 under the heading "Principal and Selling
Stockholders" in the Prospectus constitute the only information furnished
by such Selling Stockholders to the Company and the Underwriters for the
purposes of Section 10(b) hereof. Such Selling Stockholder confirms that
such information, to the extent such statements relate to each Selling
Stockholder, is correct in all material respects.
16. NOTICES. All communications hereunder shall be in writing and,
if sent to the Underwriters, shall be mailed or
-40-
delivered or telecopied and confirmed in writing to the Representatives in
care of BT Alex. Xxxxx Incorporated, One Bankers Trust Plaza, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department,
and if sent to any Selling Stockholder, to such Selling Stockholder in care
of the Company and if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed in writing to Anchor Gaming at 000 Xxxxx Xxxx,
Xxxxx X, Xxx Xxxxx, Xxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx.
17. SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and the Selling Stockholders
and their respective successors and legal representatives, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or
in respect of this Agreement, or any provisions herein contained. This
Agreement and all conditions and provisions hereof are intended to be and are
for the sole and exclusive benefit of such persons and for the benefit of no
other person except that (i) the indemnities of the Company and the Selling
Stockholders contained in Section 10 of this Agreement shall also be for the
benefit of any person or persons who control the Underwriters within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii)
the indemnities of the Underwriters contained in Section 10 of this Agreement
shall also be for the benefit of the directors of the Company, the Company's
officers who have signed the Registration Statement, the Selling Stockholders
and any person or persons who control the Company or the Selling Stockholders
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act. No purchaser of Securities from the Underwriters will be deemed a
successor because of such purchase.
18. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAW.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-41-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company,
the Selling Stockholders and the Underwriters.
Very truly yours,
ANCHOR GAMING
By:
-----------------------------------
Name:
Title:
SELLING STOCKHOLDERS,
LISTED ON SCHEDULE II
Attorney-in-Fact for
each Selling Stockholder,
By:
-----------------------------------
Name:
Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BT ALEX. XXXXX INCORPORATED
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX & ASSOCIATES, INC.
Acting on behalf of themselves and as
the Representatives of the several
Underwriters named in Schedule II hereto.
By BT ALEX. XXXXX INCORPORATED
By
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
SCHEDULE I
ANCHOR GAMING
Stock Holdings of Selling Stockholders
Name/Entity Number of Shares
---------------------- ----------------
Xxxxxxx X. Xxxxxx 657,700
Xxxxxxxxx X. Xxxxx 202,500
Xxxxxxx X. Xxxxxx 179,500
Xxxxxxx X. Xxxxxx 182,500
Xxxxxxxx X. Xxxxxx 182,500
Xxxxxxx Xxxxxx Xxxxxxx 130,000
Xxxxxxx X. Xxxxxx 195,300
Xxxxxxxxx X. Xxxxxx 70,000
SCHEDULE II
Number of
Shares to
Underwriter Be Purchased
-----------
BT Alex. Xxxxx Incorporated . . . . . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . .
Xxxxxxx Xxxxx & Associates, Inc. . . . . . . . . . . . . .
---------
Total Underwriters 1,800,000
---------
