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
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."
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The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (SEC File No.
333-4755) 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-
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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
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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
(the "Annual Report") 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 nec-
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xxxxxx to conduct all of the activities 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 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 [June 30, 1997 is as set forth in the Annual Report
under the term "Capitalization"] 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
consolidated subsidiaries at the dates and for the periods to which
they relate, subject to year end audit adjustments,
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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 and
statistical 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, 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 respective officers or directors,
before or by any fed-
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eral, 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.
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[(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 thereof,
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
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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.
(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
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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"). The Company acknowledges that the Underwriters may
engage in passive market making transactions in the Securities on NASDAQ
in accordance (and in compliance) with Regulation M under the Exchange
Act.
(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.
(w) [The information set forth in the Prospectus under the caption
"Prospectus Summary-Recent Developments" is true and correct in all
material respects.]
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3. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
Selling Stockholder listed on Schedule I 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
Agreement 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 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, con-
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tract 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 Commission, 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, the SELLING STOCKHOLDER
will not distribute any prospectus or other offering material in connection
with the offering of the Shares.
(h) As to Xxxxxxx X. Xxxxxx after due inquiry, and as to each of the
other SELLING STOCKHOLDERS, without having undertaken to determine
independently the accuracy or completeness of either the representations
and warranties of the Company contained herein or the information contained
in the Registration Statement or the documents incorporated therein by
reference, 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 Registration Statement
and (c) has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement which has adversely affected or may
adversely affect the business of the Company or the Subsidiaries. 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
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terms and conditions herein set forth, each of the Selling Stockholders
agree, 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
Underwriters 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, firm or corporation, 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 Un-
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derwriters 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. 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 before 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 of 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
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"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 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 of
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
-16-
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 accordance 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. 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
-17-
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, threatening 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 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
-18-
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 Preliminary 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 is-
-19-
sued 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.
(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
-20-
same except for (i) Securities issued pursuant to this Agreement; (ii)
Common Stock or other equity securities issued in connection with any
merger or other acquisition by the Company provided that such Common
Stock or other equity securities are specifically made subject to the
restrictions of this paragraph for the Lock-up Period and (iii) Common
Stock issuable on exercise of options or warrants referred to in the
Prospectus.
(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 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
-21-
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 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:
-22-
(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, 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, 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
-23-
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 the Colorado Expansion (as
defined therein) and 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, stock options and warrants as set forth in the Registration
Statement and the Prospectus. The 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.
-24-
(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 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 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
-25-
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.
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
-26-
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 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
-27-
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:
(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 docu-
-28-
ments 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 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 indebted-
-29-
ness 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.
(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, 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
-30-
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 Company has not been enjoined (temporarily or
permanently).
(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
-31-
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.
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,
-32-
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 to the Company by the
Underwriters with respect to the Underwriters, or by the Selling Stockholders
with respect to the Selling Stockholders specifically, 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
-33-
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, (i) as to Xxxxxxx X. Xxxxxx and
(ii) in each case as to each of the other Selling Stockholders 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 Selling Stockholder through the
Company (but only in its capacity as custodian of the Selling Stockholders)
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
Underwriter 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;
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
-34-
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.
(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
-35-
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 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
-36-
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 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 (d). Notwithstanding any other provision of this
paragraph (d), 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. 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 (d), 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
-37-
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.
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);
-38-
(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;
(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; or
(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.
-39-
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).
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 Services 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 Services 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 paragraph four
under the heading "Underwriting" in
-40-
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 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
-41-
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.
-42-
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
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:
Title:
SCHEDULE I
ANCHOR GAMING
Stock Holdings of Selling Stockholders
Number of
Name/Entity 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...............
------------
Total Underwriters 1,800,000
------------
