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DRAFT OF 10/4/95
UNDERWRITING AGREEMENT
XXX XXXXX, INC.
4,000,000 Shares
Common Stock
(Par Value $0.10 Per Share)
___________________________
New York, New York
________________________, 1995
XXXXXXXX WERTHEIM & CO. INCORPORATED
HOWARD, WEIL, LABOUISSE, XXXXXXXXXX INCORPORATED
XXXXXX XXXXXXX & CO., INC.
SALOMON BROTHERS INC
As Representatives of the several
Underwriters named in Schedule I hereto
c/x Xxxxxxxx Xxxxxxxx & Co. Incorporated
Equitable Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Xxx Xxxxx, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters"), an aggregate of
4,000,000 shares of Common Stock, par value $0.10 per share (the "Common
Stock"). The 4,000,000 shares of Common Stock to be sold by the Company are
herein referred to as the "Firm Securities." In addition, the Company proposes
to grant to the Underwriters an option to purchase up to an additional 600,000
shares of Common Stock (the "Option Securities"), on the terms and for the
purposes set forth in Section 2 hereof. The Firm Securities and the Option
Securities are herein collectively referred to as the "Securities." Except as
may be expressly set forth below, any reference to you in this Agreement shall
be solely in your capacity as the Representatives.
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1. The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File
No. 33-_____________), and as a part thereof a preliminary
prospectus, in respect of the Securities, has been filed with
the Securities and Exchange Commission (the "Commission") in
the form heretofore delivered to you and, with the exception
of exhibits to the registration statement, to you for each of
the other Underwriters; if such registration statement has not
become effective, an amendment (the "Final Amendment") to such
registration statement, including a form of final prospectus,
necessary to permit such registration statement to become
effective, will promptly be filed by the Company with the
Commission; if such registration statement has become
effective and any post-effective amendment to such
registration statement has been filed with the Commission
prior to the execution and delivery of this Agreement, which
amendment or amendments shall be in form acceptable to you,
the most recent such amendment has been declared effective by
the Commission; if such registration statement has become
effective, a final prospectus (the "Rule 430A Prospectus")
relating to the Securities containing information permitted to
be omitted at the time of effectiveness by Rule 430A of the
rules and regulations of the Commission under the Securities
Act of 1933, as amended (the "Act"), will promptly be filed by
the Company pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act (any preliminary
prospectus filed as part of such registration statement being
herein called a "Preliminary Prospectus," such registration
statement as amended at the time that it becomes or became
effective, or, if applicable, as amended at the time the most
recent post-effective amendment to such registration statement
filed with the Commission prior to the execution and delivery
of this Agreement became effective (the "Effective Date"),
including all exhibits thereto and all information deemed to
be a part thereof at such time pursuant to Rule 430A of the
rules and regulations of the Commission under the Act, being
herein called the "Registration Statement" and the final
prospectus relating to the Securities in the form first filed
pursuant to Rule 424(b) (1) or (4) of the rules and
regulations of the Commission under the Act or, if no such
filing is required, the form of final prospectus included in
the Registration Statement, being herein called the
"Prospectus"); any reference herein to any Preliminary
Prospectus or the Prospectus or the Registration Statement
shall be deemed to include any information incorporated by
reference therein, as of the date of such Preliminary
Prospectus, the Prospectus or the Registration Statement, as
the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus, the Prospectus or
the Registration Statement shall be deemed to refer to any
documents filed after such date under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Commission thereunder and so
incorporated by reference;
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(b) No order preventing or suspending the
use of any Preliminary Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(c) On the Effective Date and the date the
Prospectus is filed with the Commission, and when any further
amendment or supplements thereto become effective or are filed
with the Commission, as the case may be, the Registration
Statement, the Prospectus and such amendment or supplements
did and will conform in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder, and 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 not misleading; provided, however,
that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by an Underwriter through you expressly for use
therein;
(d) 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 Exchange Act and the rules and regulations of the
Commission thereunder, and when read together with other
information in the Prospectus, at the time the Registration
Statement becomes effective and at the Time of Delivery (as
defined in Section 4 hereof), will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(e) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and to conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases property, or conducts
any business, so as to require such qualification (except
where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or
the business affairs or prospects of the Company and its
subsidiaries, taken as a whole); and each of the Company's
subsidiaries has been duly incorporated and is validly
existing as a
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corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and to conduct
its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases property, or conducts
any business, so as to require such qualification (except
where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or
the business affairs or prospects of the Company and its
subsidiaries, taken as a whole);
(f) All the issued shares of capital stock of
each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
are owned by the Company free and clear of all liens,
encumbrances, equities, security interests, or claims; and
there are no outstanding options, warrants or other rights
calling for the issuance of, and there are no commitments,
plans or arrangements to issue, any shares of capital stock of
any subsidiary or any security convertible or exchangeable or
exercisable for capital stock of any subsidiary; except for
the shares of stock of each subsidiary owned by the Company,
neither the Company nor any subsidiary owns, directly or
indirectly, any shares of capital stock of any corporation or
have any equity interest in any firm, partnership, joint
venture, association or other entity;
(g) The Company has all requisite power and
authority to execute, deliver and perform its obligations
under this Agreement; the execution, delivery and performance
by the Company of its obligations under this Agreement have
been duly and validly authorized by all requisite corporate
action of the Company; and this Agreement constitutes the
legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms;
(h) Neither the Company nor any of its
subsidiaries has sustained since the date of the latest
audited financial statements included in or incorporated by
reference into the Prospectus, any loss or interference with
its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which loss
or interference is material to the Company and its
subsidiaries, taken as a whole; and, since the respective
dates as of which information is given in the Registration
Statement and the Prospectus, there has not been, and prior to
the Time of Delivery (as defined in Section 4 hereof) there
will not be, any change in the capital stock (other than
shares issued pursuant to exercise of employee stock options
that the Prospectus indicates are outstanding (the "Employee
Option Shares")) or short-term debt or long-term debt of the
Company or any of its subsidiaries, or any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the general affairs,
management, financial position,
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stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(i) The Company and its subsidiaries have (i)
good and indefeasible title to all their interests in their
oil and gas properties, (ii) good and marketable title in fee
simple to all real property and, (iii) good and marketable
title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except
such as are described or contemplated by the Prospectus, or
would not result in a material adverse effect on the condition
(financial or other), earnings, business or properties of the
Company or the Company and its subsidiaries, taken as a whole,
and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries, and any
real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed
to be made of such real property and buildings by the Company
and its subsidiaries;
(j) The estimates of present values of reserves
included in or incorporated by reference into the Prospectus
were prepared in accordance with the methodology specified in
the rules and regulations under the Act with respect to prices
for production, taxes and discount factor; to the knowledge of
the Company, Xxxxxxxxxx Petroleum Consultants were, as of the
date of the reserve report incorporated by reference into the
Registration Statement (the "Reserve Report"), and are, as of
the date hereof, independent petroleum engineers with respect
to the Company.
(k) The Company has an authorized, issued and
outstanding capitalization as set forth in the Registration
Statement, and all the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are
fully paid and non-assessable, are free of any preemptive
rights, rights of first refusal or similar rights, were issued
and sold in compliance with the applicable Federal and state
securities laws and conform in all material respects to the
description in the Prospectus; except as described in the
Prospectus, there are no outstanding options warrants or other
rights calling for the issuance of, and there are no
commitments, plans or arrangements to issue, any shares of
capital stock of the Company or any security convertible or
exchangeable or exercisable for capital stock of the Company;
there are no holders of securities of the Company who, by
reason of the filing of the Registration Statement have the
right (and have not waived such right) to request the Company
to include in the Registration Statement securities owned by
them;
(l) The Securities to be issued and sold by the
Company to the Underwriters hereunder have been duly and
validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly
issued, fully paid and non-assessable, and will conform in all
material respects to the
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description thereof in the Prospectus and will be quoted on
the Nasdaq National Market as of the Effective Date;
(m) The performance of this Agreement, the
consummation of the transactions herein contemplated and the
issue and sale of the Securities and the compliance by the
Company with all the provisions of this Agreement will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge,
claim, or encumbrance upon, any of the property or assets of
the Company or any of its subsidiaries pursuant to any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions
of the Certificate of Incorporation or the By-laws, in each
case as amended to the date hereof, of the Company or any of
its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with
any court or governmental agency or body is required for the
issue and sale of the Securities or the consummation of the
other transactions contemplated by this Agreement, except the
registration under the Act of the Securities, and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(n) Except as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries or any of their respective
officers or directors is a party or of which any property of
the Company or any of its subsidiaries is the subject, other
than litigation or proceedings incident to the business
conducted by the Company and its subsidiaries which will not
individually or in the aggregate have a material adverse
effect on the current or future financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened or
contemplated by others; and neither the Company nor any of its
subsidiaries is involved in any labor dispute, nor, to the
Company's knowledge, is any labor dispute threatened;
(o) The Company and its subsidiaries have such
licenses, permits and other approvals or authorizations of and
from governmental or regulatory authorities ("Permits") as are
necessary under applicable law to own their respective
properties and to conduct their respective businesses in the
manner now being conducted and
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as described in the Prospectus; and the Company and its
subsidiaries have fulfilled and performed all of their
respective obligations with respect to such Permits, and no
event has occurred which allows, or after notice or lapse of
time or both would allow, revocation or termination thereof or
result in any other material impairment of the rights of the
holder of any such permits;
(p) Xxxxxx Xxxxxxxx LLP, who have certified
certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and
schedules included in or incorporated by reference into the
Registration Statement and the Prospectus, are independent
public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(q) The consolidated financial statements and
schedules of the Company and its subsidiaries included in or
incorporated by reference into the Registration Statement and
the Prospectus present fairly the financial condition, the
results of operations and the cash flows of the Company and
its subsidiaries as of the dates and for the periods therein
specified in conformity with generally accepted accounting
principles consistently applied throughout the periods
involved, except as otherwise stated therein; and the other
financial and statistical information and data set forth in
the Registration Statement and the Prospectus is accurately
presented and, to the extent such information and data is
derived from the financial statements and books and records of
the Company and its subsidiaries, is prepared on a basis
consistent with such financial statements and the books and
records of the Company and its subsidiaries; no other
financial statements or schedules are required to be included
in the Registration Statement and the Prospectus;
(r) There are no statutes or governmental
regulations, or any contracts or other documents that are
required to be described in or filed as exhibits to the
Registration Statement which are not described therein or
filed or incorporated by reference as exhibits thereto; and
all such contracts to which the Company or any subsidiary is a
party have been duly authorized, executed and delivered by the
Company or such subsidiary, constitute valid and binding
agreements of the Company or such subsidiary and are
enforceable against the Company or subsidiary in accordance
with the terms thereof;
(s) The Company and its subsidiaries own or
possess adequate patent rights or licenses or other rights to
use patent rights, inventions, trademarks, service marks,
trade names, copyrights, technology and know-how necessary to
conduct the general business now or proposed to be operated by
them as described in the Prospectus; neither the Company nor
any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others
with respect to any patent, patent rights, inventions,
trademarks, service marks, trade names, copyrights,
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technology or know-how which, singly or in the aggregate,
could materially adversely affect the business, operations,
financial condition, income or business prospects of the
Company and its subsidiaries considered as a whole.
(t) Neither the Company nor any of and its
subsidiaries are in violation of any term or provision of its
Certificate of Incorporation or By-Laws (or similar corporate
constituent documents), in each case as amended to the date
hereof, or any law, ordinance, administrative or governmental
rule or regulation applicable to the Company or any of its
subsidiaries, or of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries;
(u) No default exists, and no event has occurred
which with notice or lapse of time, or both, would constitute
a default in the due performance and observance of any term,
covenant or condition of any indenture, mortgage, deed of
trust, bank loan or credit agreement, lease or other agreement
or instrument to which the Company or any of its subsidiaries
is a party or by which any of them or their respective
properties is bound or may be affected in any material adverse
respect with regard to the property, business or operations of
the Company and its subsidiaries;
(v) The Company and its subsidiaries have timely
filed all necessary tax returns and notices and have paid all
federal, state, county, local and foreign taxes of any nature
whatsoever for all tax years through December 31, 1994, to the
extent such taxes have become due. The Company has no
knowledge, or any reasonable grounds to know, of any tax
deficiencies which would have a material adverse effect on the
Company or any of its subsidiaries; the Company and its
subsidiaries have paid all taxes which have become due,
whether pursuant to any assessments, or otherwise, and there
is no further liability (whether or not disclosed on such
returns) or assessments for any such taxes, and no interest or
penalties accrued or accruing with respect thereto, except as
may be set forth or adequately reserved for in the financial
statements included in or incorporated by reference into the
Registration Statement; the amounts currently set up as
provisions for taxes or otherwise by the Company and its
subsidiaries on their books and records are sufficient for the
payment of all their unpaid federal, foreign, state, county
and local taxes accrued through the dates as of which they
speak, and for which the Company and its subsidiaries may be
liable in their own right, or as a transferee of the assets
of, or as successor to any other corporation, association,
partnership, joint venture or other entity;
(w) The Company will not, during the period of
180 days after the date hereof except pursuant to this
Agreement, offer, sell, contract to sell or otherwise dispose
of any capital stock of the Company (or securities convertible
into, or exchangeable for, capital stock of the Company),
directly or indirectly, without the prior written consent of
Xxxxxxxx Wertheim & Co. Incorporated, except for grants of
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stock options under the Company's stock option plans and
except for shares of capital stock issued in connection with
the acquisition of assets or capital stock of any company
engaged in the oil and gas business.
(x) The Company and its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(y) Neither the Company nor any of its
subsidiaries is in violation of any foreign, federal, state or
local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants, nor any
federal or state law relating to discrimination in the hiring,
promotion or paying of employees nor any applicable federal or
state wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act of 1974, as amended, or the
rules and regulations promulgated thereunder, where such
violation would have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(z) None of the Company or its subsidiaries, or
its officers, directors, employees or agents has used any
corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity, or made any unlawful payment of funds of the Company
or any subsidiary or received or retained any funds in
violation of any law, rule or regulation; and
(aa) None of the Company or its subsidiaries, or
its officers, directors, employees or agents have taken or
will take, directly or indirectly, any action designed to or
which has constituted or that might be reasonably be expected
to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Securities.
(bb) The conditions for use of Form S-3 as set forth
in the General Instructions thereto, have been satisfied.
(cc) The Company is in compliance with all of the
provisions of Section 517.075 of the Florida Statutes, and all
rules and regulations promulgated thereunder relating to
issuers doing business in Cuba.
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(dd) The Company and each of its subsidiaries carry,
or are covered by, insurance in such amounts and covering such
risks as is reasonably necessary for the conduct of their
respective business and the value of their respective
properties and as is customary for companies engaged in
similar businesses in similar industries.
2. Subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to the several Underwriters an aggregate
of 4,000,000 Firm Securities, and each of the Underwriters agrees to purchase
from the Company, at a purchase price of $__________ per share, the respective
aggregate number of Firm Securities determined in the manner set forth below.
The obligation of each Underwriter to the Company shall be to purchase that
portion of the number of shares of Common Stock to be sold by the Company
pursuant to this Agreement as the number of Firm Securities set forth opposite
the name of such Underwriter on Schedule I bears to the total number of Firm
Securities to be purchased by the Underwriters pursuant to this Agreement, in
each case adjusted by you such that no Underwriter shall be obligated to
purchase Firm Securities other than in 100 share amounts. In making this
Agreement, each Underwriter is contracting severally and not jointly.
In addition, subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the Underwriters, as required (for the sole
purpose of covering over-allotments in the sale of the Firm Securities), up to
600,000 Option Securities at the purchase price per share of the Firm
Securities being sold by the Company as stated in the preceding paragraph. The
right to purchase the Option Securities may be exercised by your giving 48
hours' prior written or telephonic notice (subsequently confirmed in writing)
to the Company of your determination to purchase all or a portion of the Option
Securities. Such notice may be given at any time within a period of 30 days
following the date of this Agreement. Option Securities shall be purchased
severally for the account of each Underwriter in proportion to the number of
Firm Securities set forth opposite the name of such Underwriter in Schedule I
hereto. No Option Securities shall be delivered to or for the accounts of the
Underwriters unless the Firm Securities shall be simultaneously delivered or
shall theretofore have been delivered as herein provided. The respective
purchase obligations of each Underwriter shall be adjusted by you so that no
Underwriter shall be obligated to purchase Option Securities other than in 100
share amounts. The Underwriters may cancel any purchase of Option Securities
at any time prior to the Option Securities Delivery Date (as defined in Section
4 hereof) by giving written notice of such cancellation to the Company.
3. The Underwriters propose to offer the Securities for
sale upon the terms and conditions set forth in the Prospectus.
4. Certificates in definitive form for the Firm
Securities to be purchased by each Underwriter hereunder shall be delivered by
or on behalf of the Company to you for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
certified or official bank check or checks, payable in New York Clearing House
funds, to the order of the Company, for the purchase price of the Firm
Securities being sold by the Company at the office of Xxxxxxxx Xxxxxxxx & Co.
Incorporated, Equitable Center, 787 Seventh
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Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 9:30 A.M., New York City time, on _________ __,
1995, or at such other time, date and place as you and the Company may agree
upon in writing, such time and date being herein called the "Time of Delivery."
Certificates in definitive form for the Option Securities to be
purchased by each Underwriter hereunder shall be delivered by or on behalf of
the Company to you for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price thereof by certified or
official bank check or checks, payable in New York Clearing House funds, to the
order of the Company, for the purchase price of the Option Securities, in New
York, New York, at such time and on such date (not earlier than the Time of
Delivery nor later than ten business days after giving of the notice delivered
by you to the Company with reference thereto) and in such denominations and
registered in such names as shall be specified in the notice delivered by you
to the Company with respect to the purchase of such Option Securities. The
date and time of such delivery and payment are herein sometimes referred to as
the "Option Securities Delivery Date." The obligations of the Underwriters
shall be subject, in their discretion, to the condition that there shall be
delivered to the Underwriters on the Option Securities Delivery Date opinions
and certificates, dated such Option Securities Delivery Date, referring to the
Option Securities, instead of the Firm Securities, but otherwise to the same
effect as those required to be delivered at the Time of Delivery pursuant to
Section 7(d), 7(e), 7(f) and 7(i).
Certificates for the Firm Securities and the Option Securities so to
be delivered will be in good delivery form, and in such denominations and
registered in such names as you may request not less than 48 hours prior to the
Time of Delivery and the Option Securities Delivery Date, respectively. Such
certificates will be made available for checking and packaging in New York, New
York, at least 24 hours prior to the Time of Delivery and Option Securities
Delivery Date.
5. The Company covenants and agrees with each of the
Underwriters:
(a) If the Registration Statement has not become
effective, to file promptly the Final Amendment with the Commission
and use its best efforts to cause the Registration Statement to become
effective; if the Registration Statement has become effective, to file
promptly the Rule 430A Prospectus with the Commission; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you after reasonable notice
thereof; to advise you, promptly after it receives notice thereof of
the time when the Registration Statement, or any amendment thereto, or
any amended Registration Statement has become effective or any
supplement to the Prospectus or any amended Prospectus has been filed,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
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Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain withdrawal of such order;
(b) Promptly from time to time to take such action as you
may request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) To furnish each of the Representatives and counsel
for the Underwriters, without charge, signed copies of the
registration statement originally filed with respect to the Securities
and each amendment thereto (in each case including all exhibits
thereto) and to each other Underwriter, without charge, a conformed
copy of such registration statement and each amendment thereto (in
each case without exhibits thereto) and, so long as a prospectus
relating to the Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus, the Prospectus and all
amendments or supplements thereto as you may from time to time
reasonably request. If at any time when a prospectus is required to
be delivered under the Act an event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Act, the Company will forthwith prepare and, subject to the
provisions of Section 5(a) hereof, file with the Commission an
appropriate supplement or amendment thereto, and will furnish to each
Underwriter and to any dealer in securities, without charge, as many
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus or make an appropriate
filing under Section 13,14 or 15(d) of the Exchange Act which will
correct such statement or omission or effect such compliance in
accordance with the requirements of Section 10 of the Act;
(d) To make generally available to its stockholders as
soon as practicable, but in any event not later than 105 days after
the close of the period covered thereby, an earnings statement in form
complying with the provisions of Section 11(a) of the Act covering a
period of 12 consecutive months beginning not later than the first day
of the Company's fiscal quarter next following the Effective Date;
(e) To file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act subsequent to the Effective Date and during any period
when the Prospectus is required to be delivered;
(f) For a period of five years from the Effective Date,
to furnish to its stockholders after the end of each fiscal year an
annual report (including a consolidated
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balance sheet and statements of income, cash flow and stockholders'
equity of the Company and its subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the Effective Date), consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of five years from the Effective
Date, to furnish to you copies of all reports or other communications
(financial or other) furnished to its stockholders, and deliver to you
(i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission, the Nasdaq
National Market or any national securities exchange on which any class
of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request in connection
with your obligations hereunder;
(h) To apply the net proceeds from the sale of the
Securities in the manner set forth in the Prospectus under the caption
"Use of Proceeds";
(i) That it will not, and will cause its subsidiaries,
officers, directors, employees, agents and affiliates not to, take,
directly or indirectly, any action designed to cause or result in, or
that might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities;
(j) That prior to the Time of Delivery there will not be
any change in the capital stock or material change in the short-term
debt or long-term debt of the Company or any of its subsidiaries, or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company or any of its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(k) That it will not, during the period of 180 days after
the date hereof (other than pursuant to this Agreement), offer, sell,
contract to sell or otherwise dispose of any capital stock of the
Company (or securities convertible into, or exchangeable for, capital
stock of the Company), directly or indirectly, without the prior
written consent of Xxxxxxxx Wertheim & Co. Incorporated except for
grants of stock options under the Company's stock option plans and
except for shares of capital stock issued in connection with the
acquisition of assets or capital stock of any company engaged in the
oil and gas business;
(l) That it has caused the Securities to be included for
quotation on the Nasdaq National Market as of the Effective Date; and
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid: (i) the fees,
disbursements and expenses of counsel and
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accountants for the Company, and all other expenses, in connection with the
preparation, printing and filing of the Registration Statement and the
Prospectus and amendments and supplements thereto and the furnishing of copies
thereof, including charges for mailing, air freight and delivery and counting
and packaging thereof and of any Preliminary Prospectus and related offering
documents to the Underwriters and dealers; (ii) the cost of printing this
Agreement, the Agreement Among Underwriters, the Selling Agreement,
communications with the Underwriters and selling group and the Preliminary and
Final Blue Sky Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and sale under
securities laws as provided in Section 5(b) hereof, including filing and
registration fees and the fees, disbursements and expenses for counsel for the
Underwriters in connection with such qualification and in connection with Blue
Sky surveys or similar advice with respect to sales; (iv) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (v) all
fees and expenses in connection with quotation of the Securities on the Nasdaq
National Market; and (vi) all other costs and expenses incident to the
performance of their obligations hereunder which are not otherwise specifically
provided for in this Section 6, including the fees of the Company's Transfer
Agent and Registrar, the cost of any stock issue or transfer taxes on sale of
the Securities to the Underwriters, the cost of the Company's personnel and
other internal costs, the cost of printing and engraving the certificates
representing the Securities and all expenses and taxes incident to the sale and
delivery of the Securities to be sold by the Company to the Underwriters
hereunder. It is understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, the Underwriters will pay all their
own costs and expenses, including the fees of their counsel, stock transfer
taxes on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall
be subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the
Time of Delivery, true and correct, the condition that the Company shall have
performed all its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Registration Statement shall have become
effective, and you shall have received notice thereof not later than
10:00 P.M., New York City time, on the date of execution of this
Agreement, or at such other time as you and the Company may agree; if
required, the Prospectus shall have been filed with the Commission in
the manner and within the time period required by Rule 424(b); no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) All corporate proceedings and related legal and other
matters in connection with the organization of the Company and the
registration, authorization, issue, sale and
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delivery of the Securities shall have been reasonably satisfactory to
Xxxxxxx & Xxxxx L.L.P., counsel to the Underwriters, and Xxxxxxx &
Xxxxx L.L.P. shall have been timely furnished with such papers and
information as they may reasonably have requested to enable them to
pass upon the matters referred to in this subsection;
(c) You shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact or omits to state a fact
which in your judgment is in either case material and in the case of
an omission is required to be stated therein or is necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading;
(d) Xxxxxx & Xxxxxx L.L.P., counsel to the Company, shall
have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company has been duly and validly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, and is
qualified to do business and is in good standing in each
jurisdiction in which its ownership or leasing of properties
requires such qualification or the conduct of its business
requires such qualification (except where the failure to so
qualify would not have a material adverse effect on the
condition, financial or otherwise, or the business affairs or
prospects of the Company and its subsidiaries, taken as a
whole); and the Company has all necessary corporate power and
all material governmental authorizations, permits and
approvals required to own, lease and operate its properties
and conduct its business as described in the Prospectus;
(ii) Each of the Company's subsidiaries has been
duly and validly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, and is qualified to do
business and is in good standing in each jurisdiction in which
its ownership or leasing of properties requires such
qualification or the conduct of its business requires such
qualification (except where the failure to so qualify would
not have a material adverse effect on the condition, financial
or otherwise, or the business affairs or prospects of the
Company and its subsidiaries, taken as a whole); and each such
subsidiary has all necessary corporate power and all material
governmental authorizations, permits and approvals required to
own, lease and operate its properties and to conduct its
business as described in the Prospectus;
(iii) All the outstanding shares of capital stock
of each of the Company's subsidiaries have been duly
authorized and are validly issued and outstanding, are fully
paid and non-assessable and are owned by the Company of record
and to the best knowledge of such counsel, (A) beneficially
and (B) free and clear of all liens, encumbrances, equities,
security interests or claims of any nature whatsoever; and
neither the Company nor any of its subsidiaries has granted
any outstanding options,
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warrants or commitments with respect to any shares of its
capital stock, whether issued or unissued, except as
otherwise described in the Prospectus;
(iv) The Company has an authorized capitalization
as set forth in the Registration Statement and all the issued
shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable, are free of any preemptive rights, and were
issued and sold in compliance with all applicable Federal and
state securities laws; except as described in the Prospectus,
to the knowledge of such counsel, there are no outstanding
options, warrants or other rights calling for the issuance of,
and there are no commitments, plans or arrangements to issue,
any shares of capital stock of the Company; the Securities
being sold by the Company have been duly and validly
authorized and, when duly countersigned by the Company's
Transfer Agent and Registrar and issued, delivered and paid
for in accordance with the provisions of the Registration
Statement and this Agreement, will be duly and validly issued,
fully paid and non- assessable; the Securities conform to the
description thereof in the Prospectus; the Securities have
been duly authorized for quotation on the Nasdaq National
Market, as of the Effective Date; and the certificates for the
Securities are in valid and sufficient form;
(v) To the best of such counsel's knowledge there
are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries or any of
their respective officers or directors is a party or of which
any property of the Company or any of its subsidiaries is the
subject which, if resolved against the Company or any of its
subsidiaries or any of their respective officers or directors,
individually, or to the extent involving related claims or
issues, in the aggregate, is of a character required to be
disclosed in the Prospectus which has not been properly
disclosed therein;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid
and binding agreement of the Company enforceable in accordance
with its terms, except as enforceability of the same may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
and except as enforceability of those provisions relating to
indemnity may be limited by the Federal securities laws and
principles of public policy;
(vii) The Company has full corporate power and
authority to execute, deliver and perform this Agreement, and
the execution, delivery and performance of this Agreement, the
consummation of the transactions herein contemplated and the
issue and sale of the Securities and the compliance by the
Company with all the provisions of this Agreement will not
conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge, claim or
encumbrance upon, any of the property or
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assets of the Company or any of its subsidiaries pursuant to,
the terms of any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to
such counsel to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws, in each case as
amended, of the Company or any of its subsidiaries, or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or any
regulatory authority or other governmental body is required
for the issue and sale of the Securities or the consummation
of the other transactions contemplated by this Agreement,
except such as have been obtained under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(ix) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is currently
in violation of its Certificate of Incorporation or By-laws or
in default under, any indenture, mortgage, deed of trust,
lease, bank loan or credit agreement or any other agreement or
instrument of which such counsel has knowledge to which the
Company or any of its subsidiaries is a party or by which any
of them or any of their property may be bound or affected (in
any respect that is material in light of the financial
condition of the Company and its subsidiaries, taken as a
whole);
(x) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any Securities pursuant to the
Company's Certificate of Incorporation or By-Laws, in each
case as amended to the date hereof, or any agreement or other
instrument known to such counsel; and no holders of securities
of the Company have rights to the registration thereof under
the Registration Statement or, if any such holders have such
rights, such holders have waived such rights;
(xi) To the extent summarized therein, all
contracts and agreements summarized in the Registration
Statement and the Prospectus are fairly summarized therein,
conform in all material respects to the descriptions thereof
contained therein, and, to the extent such contracts or
agreements or any other material agreements are required under
the Act or the rules and regulations thereunder to be filed or
incorporated by reference therein, as exhibits to the
Registration Statement, they are
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so filed or incorporated by reference; and such counsel does
not know of any contracts or other documents required to be
summarized or disclosed in the Prospectus or to be so filed
or incorporated by reference as an exhibit to the Registration
Statement, which have not been so summarized or disclosed,
or so filed or incorporated by reference;
(xii) All descriptions in the Prospectus of
statutes, regulations or legal or governmental proceedings are
fair summaries thereof and fairly present the information
required to be shown with respect to such matters;
(xiii) Nothing has come to such counsel's attention
to give such counsel reason to believe that any of the
representations and warranties of the Company contained in
this Agreement or in any certificate or document contemplated
under this Agreement to be delivered are not true or correct
or that any of the covenants and agreements herein contained
to be performed on the part of the Company or any of the
conditions herein contained, or set forth in the Registration
Statement and the Prospectus, to be fulfilled or complied with
by the Company have not been or will not be duly and timely
performed, fulfilled or complied with; and
(xiv) The Registration Statement has become
effective under the Act, the Prospectus has been filed in
accordance with Rule 424(b) of the rules and regulations of
the Commission under the Act, including the applicable time
periods set forth therein, or such filing is not required and,
to the best 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 pending or threatened under the Act, and the
Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Act and the rules and regulations
thereunder; the documents incorporated by reference in the
Prospectus comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder; it being understood that such
counsel need express no opinion as to the financial statements
and schedules or other financial data contained or
incorporated by reference in the Registration Statement or the
Prospectus; and the condition for use of Form S-3 set forth in
the General Instructions thereto have been satisfied.
Such counsel shall also state that nothing has come
to such counsel's attention that would lead such counsel to
believe that either the Registration Statement or any
amendment or supplement thereto, at the time such Registration
Statement or amendment or supplement became effective and as
of the Time of Delivery, or the Prospectus or any amendment or
supplement thereto, as of its date and as of the Time of
Delivery, contains or contained any untrue statement of
material fact or omitted or omits to state a material fact
required to be stated therein
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or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering their opinions set forth in Section 7(d)
above, such counsel may rely, to the extent deemed advisable
by such counsel, (a) as to factual matters, upon certificates
of public officials and officers of the Company, and (b) as to
the laws of any jurisdiction other than the United States and
jurisdictions in which they are admitted, on opinions of
counsel (provided, however, that you shall have received a
copy of each of such opinions which shall be dated the Time of
Delivery, addressed to you or otherwise authorizing you to
rely thereon, and Xxxxxx & Xxxxxx L.L.P. in its opinion to you
delivered pursuant to this subsection, shall state that such
counsel are satisfactory to them and Xxxxxx & Xxxxxx L.L.P.
has no reason to believe that the Underwriters and they are
not justified to so rely);
(e) Xxxxxxx & Xxxxx L.L.P., counsel to the Underwriters,
shall have furnished to you their written opinion or opinions, dated
the Time of Delivery, in form and substance satisfactory to you, with
respect to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and other
related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(f) At the time this Agreement is executed and also at
the Time of Delivery, Xxxxxx Xxxxxxxx L.L.P. shall have furnished to
you a letter or letters, dated the date of this Agreement and the Time
of Delivery, in form and substance satisfactory to you, to the effect,
that:
(i) They are independent accountants with respect
to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion the consolidated financial
statements of the Company and its subsidiaries (including the
related schedules and notes) included or incorporated by
reference in the Registration Statement and Prospectus and
covered by their reports included or incorporated by reference
therein comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange
Act, as applicable and the published rules and regulations
thereunder;
(iii) They have performed the procedures specified
by the American Institute of Certified Public Accountants for
a review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
or incorporated by reference into the Registration Statement;
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(iv) On the basis of the review referred to in
clause (iii) above and certain other specified procedures as
of a specified date not more than five days prior to the date
of their letter (which procedures do not constitute an
examination made in accordance with generally accepted
auditing standards), consisting of a reading of the latest
available unaudited interim consolidated financial statements
of the Company and its subsidiaries, a reading of the latest
available minutes of any meeting of the Board of Directors and
stockholders of the Company and its subsidiaries since the
date of the latest audited financial statements included in or
incorporated by reference into the Prospectus, inquiries of
officials of the Company and its subsidiaries who have
responsibility for financial and accounting matters, and such
other procedures or inquiries as are specified in such letter,
nothing came to their attention that caused them to believe
that:
(A) The unaudited consolidated condensed
financial statements of the Company and its
subsidiaries included in the Prospectus do not comply
in form in all material respects with the applicable
accounting requirements of the Act and the rules and
regulations promulgated thereunder or are not
presented in conformity with generally accepted
accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements included in the
Registration Statement and the Prospectus;
(B) as of a specified date not more than
five days prior to the date of their letter, there
was any change in the capital stock, or the long-term
debt or short-term debt of the Company and its
subsidiaries on a consolidated basis, or any decrease
in total assets, net current assets, net assets or
stockholders' equity or other items specified by the
Representatives, of the Company and its subsidiaries
on a consolidated basis, each as compared with the
amounts shown on the [June 30], 1995 included in the
Registration Statement and the Prospectus, except in
each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur
or such other changes, decreases or increases which
are described in their letter and which do not, in
the sole judgment of the Representatives, make it
impractical or inadvisable to proceed with the
purchase and delivery of the Securities as
contemplated by the Registration Statement; and
(C) for the period from [July 1], 1995
to a specified date not more than five days prior to
the date of such letter, there was any decrease, as
compared with the corresponding period of the
preceding fiscal year, in the following consolidated
amounts: total revenues, income from operations,
income before provision for income taxes, net income
or net income per share of the Company and its
subsidiaries, except in all instances for decreases
which the Registration Statement discloses have
occurred or may
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occur; or such other decreases which are described in their
letter and which do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to
proceed with the purchase and delivery of the Securities as
contemplated by the Registration Statement; and
(v) in addition to the examination referred to in
their reports included in the Registration Statement and the
Prospectus and the limited procedures referred to in clause
(iv) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by
the Representatives, which are derived from the general
accounting records of the Company and its subsidiaries which
appear in the Prospectus, or in Part II of, or in exhibits and
schedules to, (a) the Registration Statement, (b) the
Company's Annual Report on Form 10-K for the year ended
December 31, 1995, under Items 1, 6 and 7, (c) the Company's
Quarterly Reports on Form 10-Q for the quarters ended March
31, 1995 and June 30, 1995, under Items 1 and 2 of Part I, and
have compared such amounts and financial information with the
accounting records of the Company and its subsidiaries, and
have found them to be in agreement and have proved the
mathematical accuracy of certain specified percentages.
(g) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in or incorporated by reference into the
Prospectus, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree; and since the respective dates as of which
information is given in the Prospectus, there shall not have been any
change in the capital stock (other than shares issued pursuant to the
exercise of Employee Option Shares) or short-term debt or long- term
debt of the Company or any of its subsidiaries nor any change or any
development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus;
(h) Between the date hereof and the Time of Delivery
there shall have been no declaration of war by the Government of the
United States; at the Time of Delivery there shall not have occurred
any material adverse change in the financial or securities markets in
the United States or in political, financial or economic conditions in
the United States or any outbreak or material escalation of
hostilities or other calamity or crisis, the effect of which is such
as to make it, in the judgment of the Representatives, impracticable
to market the Securities or to enforce contracts for the resale of
Securities and no event shall have occurred resulting in (i) trading
in securities generally on the New York Stock Exchange or in the
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Common Stock on the principal securities exchange or market in which
the Common Stock is listed or quoted being suspended or limited or
minimum or maximum prices being generally established on such exchange
or market, or (ii) additional material governmental restrictions, not
in force on the date of this Agreement, being imposed upon trading in
securities generally by the New York Stock Exchange or in the Common
Stock on the principal securities exchange or market in which the
Common Stock is listed or quoted or by order of the Commission or any
court or other governmental authority, or (iii) a general banking
moratorium being declared by either Federal or New York authorities;
(i) The Company shall have furnished or caused to be
furnished to you at the Time of Delivery certificates signed by the
chief executive officer and the chief financial officer, on behalf of
the Company, satisfactory to you as to such matters as you may
reasonably request and as to (i) the accuracy of the Company's
representations and warranties herein at and as of the Time of
Delivery and (ii) the performance by the Company of all its
obligations hereunder to be performed at or prior to the Time of
Delivery; the Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates signed by the chief
executive officer and the chief financial officer, on behalf of the
Company, as to (i) the fact that they have carefully examined the
Registration Statement and Prospectus and, (a) as of the Effective
Date, the statements contained or incorporated by reference in the
Registration Statement and the Prospectus were true and correct and
neither the Registration Statement nor the Prospectus omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading and (b) since the Effective Date, no
event has occurred that is required by the Act or the rules and
regulations of the Commission thereunder to be set forth in an
amendment of, or a supplement to, the Prospectus that has not been set
forth in such an amendment or supplement; and (ii) the matters set
forth in subsection (a) of this Section 7;
(j) Each director and officer of the Company shall have
delivered to you an agreement not to offer, sell, contract to sell or
otherwise dispose of any shares of capital stock of the Company (or
securities convertible into, or exchangeable for, capital stock of the
Company), directly or indirectly, for a period of 180 days after the
date of this Agreement, without the prior written consent of Xxxxxxxx
Wertheim & Co. Incorporated; and
(k) The Company shall have delivered to you evidence that
the Securities have been authorized for quotation on the Nasdaq
National Market as of the Effective Date.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the 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 a material fact contained in or incorporated by
reference into any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or in any Blue Sky
application or other document executed by the Company specifically for that
purpose or based
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upon written information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all the Securities under the security
laws thereof or filed with the Commission or any securities association or
securities exchange (each, an "Application"), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements made or incorporated by reference therein not
misleading, or (ii) any untrue statement or alleged untrue statement made by
the Company in Section 1 of this Agreement, or (iii) the employment by the
Company of any device, scheme or artifice to defraud, or the engaging by the
Company in any act, practice or course of business which operates or would
operate as a fraud or deceit, or any conspiracy with respect thereto, in which
the Company shall participate, in connection with the issuance and sale of any
of the Securities, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating, preparing to defend, defending or appearing as a third-party
witness in connection with any such action or claim; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission relating
to an Underwriter made in any Preliminary Prospectus, the Registration
Statement, the Prospectus or such amendment or supplement or any Application in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use therein.
(b) In addition to any obligations of the Company under Section
8(a), the Company agrees that it shall perform its indemnification obligations
under Section 8(a) (as modified by the last paragraph of this Section 8(b))
with respect to counsel fees and expenses and other expenses reasonably
incurred by making payments within 45 days to the Underwriter in the amount of
the statements of the Underwriter's counsel or other statements which shall be
forwarded by the Underwriter, and that they shall make such payments
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the obligation to reimburse the Underwriters for such
expenses and the possibility that such payments might later be held to have
been improper by a court and a court orders return of such payments.
The indemnity agreement in Section 8(a) shall be in addition to any
liability which the Company may otherwise have and shall extend upon the same
terms and conditions to each person, if any, who controls any Underwriter
within the meaning of the Act or the Exchange Act.
(c) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any Application, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein 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 any Preliminary Prospectus, the Registration
Statement, the Prospectus or such amendment or supplement or any
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Application in reliance upon and in conformity with written information
furnished to the Company by such Underwriter relating to such Underwriter
through you expressly for use therein, and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
The indemnity agreement in this Section 8(c) shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the meaning
of the Act or the Exchange Act.
(d) Promptly after receipt by an indemnified party under Section
8(a) or 8(c) of notice of the commencement of any action (including any
governmental investigation), such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party under Section
8(a) or 8(c) except to the extent it was unaware of such action and has been
prejudiced in any material respect by such failure or from any liability which
it may have to any indemnified party otherwise than under such Section 8(a) or
8(c). In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. If, however, (i) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party or (ii) an indemnified party shall have reasonably concluded
that representation of such indemnified party and the indemnifying party by the
same counsel would be inappropriate under applicable standards of professional
conduct due to actual or potential differing interests between them and the
indemnified party so notifies the indemnifying party, then the indemnified
party shall be entitled to employ counsel different from counsel for the
indemnifying party at the expense of the indemnifying party and the
indemnifying party shall not have the right to assume the defense of such
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to local counsel) for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same set
of allegations or circumstances. The counsel with respect to which fees and
expenses shall be so reimbursed shall be designated in writing by Xxxxxxxx
Xxxxxxxx & Co. Incorporated in the case of parties indemnified pursuant to
Section 8(a) and by the Company in the case of parties indemnified pursuant to
Section 8(c).
If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by Section 8(b), the
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indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(e) In order to provide for just and equitable contribution under
the Act in any case in which (i) any Underwriter (or any person who controls
any Underwriter within the meaning of the Act or the Exchange Act) makes claim
for indemnification pursuant to Section 8(a) hereof, but is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that Section 8(a) provides for indemnification in such
case or (ii) contribution under the Act may be required on the part of any
Underwriter or any such controlling person in circumstances for which
indemnification is provided under Section 8(c), then, and in each such case,
each indemnifying party shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject as an indemnifying party
hereunder (after contribution from others) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
the Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under Section 8(d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Securities
purchased under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault 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 the Company on the one hand or
the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 8(e). The
amount paid or payable by an
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indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof referred to above in this Section 8(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section
8(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) Promptly after receipt by any party to this Agreement of
notice of the commencement of any action, suit or proceeding, such party will,
if a claim for contribution in respect thereof is to be made against another
party (the "contributing party"), notify the contributing party of the
commencement thereof; but the omission so to notify the contributing party will
not relieve it from any liability which it may have to any other party for
contribution under the Act except to the extent it was unaware of such action
and has been prejudiced in any material respect by such failure or from any
liability which it may have to any other party other than for contribution
under the Act. In case any such action, suit or proceeding is brought against
any party, and such party notifies a contributing party of the commencement
thereof, the contributing party will be entitled to participate therein with
the notifying party and any other contributing party similarly notified.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Securities which it has agreed to purchase hereunder, you may
in your discretion arrange for you or another party or other parties to
purchase such Firm Securities on the terms contained herein. If the aggregate
number of Firm Securities as to which Underwriters default is more than
one-eleventh of the aggregate number of all the Firm Securities and within 36
hours after such default by any Underwriter you do not arrange for the purchase
of such Firm Securities, then the Company shall be entitled to a further period
of 36 hours within which to procure another party or other parties satisfactory
to you to purchase such Firm Securities on such terms. In the event that,
within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Firm Securities, or the Company notifies
you that it has so arranged for the purchase of such Firm Securities, you or
the Company shall have the right to postpone the Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Firm Securities.
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(b) If, after giving effect to any arrangements for the purchase
of the Firm Securities of such defaulting Underwriter or Underwriters by you or
the Company or both as provided in subsection (a) above, the aggregate number
of such Firm Securities which remain unpurchased does not exceed one-eleventh
of the aggregate number of all the Firm Securities, then the Company shall have
the right to require each nondefaulting Underwriter to purchase the number of
the Firm Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each nondefaulting Underwriter to purchase its pro rata
share (based on the number of Firm Securities which such Underwriter agreed to
purchase hereunder) of the Firm Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Firm Securities of a defaulting Underwriter or Underwriters by you or
the Company as provided in subsection (a) above, the aggregate number of such
Firm Securities which remain unpurchased exceeds one-eleventh of the aggregate
number of all the Firm Securities, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Firm Securities of a defaulting Underwriter or Underwriters, then
this Agreement shall thereupon terminate without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity agreement in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
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 any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or an officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. This Agreement shall become effective (a) if the Registration
Statement has not heretofore become effective, at the earlier of 12:00 Noon,
New York City time, on the first full business day after the Registration
Statement becomes effective, or at such time after the Registration Statement
becomes effective as you may authorize the sale of the Securities to the public
by Underwriters or other securities dealers, or (b) if the Registration
Statement has heretofore become effective, at the earlier of 24 hours after the
filing of the Prospectus with the Commission or at such time as you may
authorize the sale of the Securities to the public by Underwriters or
securities dealers, unless, prior to any such time you shall have received
notice from the Company that it elects that this Agreement shall not become
effective, or you, or through you such of the Underwriters as have agreed to
purchase in the aggregate fifty percent or more of the Firm Securities
hereunder, shall have given notice to the Company that you or such Underwriters
elect that this Agreement shall not become effective; provided, however, that
the provisions of this Section and Section 6 and Section 8 hereof shall at all
times be effective.
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If this Agreement shall be terminated pursuant to Section 9 hereof, or
if this Agreement, by election of you or the Underwriters, shall not become
effective pursuant to the provisions of this Section, the Company shall not
then be under any liability to any Underwriter except as provided in Section 6
and Section 8 hereof, but if this Agreement becomes effective and is not so
terminated but the Securities are not delivered by or on behalf of the Company
as provided herein because the Company has been unable for any reason beyond
its control and not due to any default by it to comply with the terms and
conditions hereof, the Company will reimburse the Underwriters through you for
all out-of- pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to any Underwriter except as
provided in Section 6 and Section 8 hereof.
12. The statements set forth in the last paragraph on the front
cover page of the Prospectus, the paragraphs on the inside front cover of the
Prospectus containing stabilization and passive market making language and the
third paragraph under the caption "Underwriting" in the Prospectus constitute
the only information furnished by any Underwriter through the Representatives
to the Company for purposes of Sections 1(b), 1(c) and 8 hereof.
13. In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made
or given by you jointly or by Xxxxxxxx Xxxxxxxx & Co. Incorporated on behalf of
you as the Representatives.
All statements, requests, notices and agreements hereunder, unless
otherwise specified in this Agreement, shall be in writing and, if to the
Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission (subsequently confirmed by delivery or by letter sent by mail) to
you as the Representatives in care of Xxxxxxxx Wertheim & Co. Incorporated,
Equitable Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department; and if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission (subsequently confirmed by delivery or by
letter sent by mail) to the address of the Company set forth in the
Registration Statement, Attention:_____________________; provided, however,
that any notice to any Underwriter pursuant to Section 8(d) hereof shall be
delivered or sent by mail, telex or facsimile transmission (subsequently
confirmed by delivery or by letter sent by mail) to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Section 8 and Section 10 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of
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any of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
16. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.
17. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument. If the foregoing is in accordance with your understanding,
please sign and return to us two counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement Among Underwriters, manually or facsimile executed
counterparts of which, to the extent practicable and upon request, shall be
submitted to the Company for examination, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
XXX XXXXX, INC.
By:
______________________________
Name:
Title:
Accepted as of the date hereof:
XXXXXXXX WERTHEIM & CO. INCORPORATED
HOWARD, WEIL, LABOUISSE, XXXXXXXXXX INCORPORATED
XXXXXX XXXXXXX & CO., INC.
SALOMON BROTHERS INC
as Representatives of the several Underwriters
By: XXXXXXXX XXXXXXXX & CO. INCORPORATED
By: _______________________________
Managing Director
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SCHEDULE I
Underwriter Number of Firm Securities
----------- -------------------------
Xxxxxxxx Wertheim & Co. Incorporated . . . . . . . . . .
Howard, Weil, Labouisse, Xxxxxxxxxx Incorporated . . . .
Xxxxxx Xxxxxxx & Co., Inc. . . . . . . . . . . . . . . .
Salomon Brothers Inc . . . . . . . . . . . . . . . . . .
_____________
Total . . . . . . . . . . . . . . . . . . . . . . . . . . 4,000,000
=============
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