1
EXHIBIT 1.1
EMERGENT GROUP, INC.
3,000,000 SHARES OF COMMON STOCK
FORM OF UNDERWRITING AGREEMENT
_____________, 1996
WHEAT, FIRST SECURITIES, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives of the several Underwriters
c/o Wheat, First Securities, Inc.
Riverfront Plaza
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Emergent Group, Inc., a South Carolina corporation (the "Company"),
and certain shareholders of the Company identified on Schedule II hereto
(collectively, the "Selling Shareholders") propose to sell to the several
underwriters named in Schedule I hereto (the "Underwriters") for whom you are
acting as the representatives (the "Representatives") with respect to the sale
by the Company and the Selling Shareholders of 2,119,030 and 880,970 shares
respectively (collectively, the " Firm Shares") of the Company's common stock,
$0.05 par value per share (the "Common Stock"). The Company has also agreed to
grant to you an option (the "Option") to purchase up to 450,000 additional
shares of Common Stock (the "Option Shares") on the terms and for the purposes
set forth in Section l(b) hereof. The Firm Shares and the Option Shares are
hereinafter collectively referred to as the "Shares."
The Company and the Selling Shareholders confirm as follows their
agreements with you.
1. AGREEMENT TO SELL AND PURCHASE; PUBLIC OFFERING.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to all the terms and conditions of this
Agreement, the Company agrees to sell to the Underwriters an aggregate of
3,000,000 Firm Shares and each of the Selling Shareholders agrees, severally
and not jointly, to sell to the Underwriters the aggregate number of Firm
Shares set forth opposite such Selling Shareholder's name in Schedule II
hereto, and each of the Underwriters, severally and not jointly, agrees to
purchase at the purchase price of $___ per share, the number of Firm Shares set
forth opposite such Underwriter's name in Schedule I hereto.
(b) Subject to all the terms and conditions of this Agreement,
the Company also grants the Underwriters an Option to purchase, severally and
not jointly, up to 450,000 Option Shares from the Company, each at the same
price per share as you shall have for the Firm
2
Shares. The Option may be exercised only to cover over-allotments in the sale
of the Firm Shares and may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the Prospectus
(as defined below) upon written or telegraphic notice (the "Option Shares
Notice") by you to the Company no later than 12:00 noon, Richmond, Virginia
time at least two and no more than ten business days before the date and time
specified for closing in the Option Shares Notice (the "Option Closing Date")
setting forth the aggregate number of Option Shares to be purchased. On the
Option Closing Date, the Company will issue and sell to the Underwriters the
number of Option Shares set forth in the Option Shares Notice, and unless
otherwise adjusted by the Representatives, each of the Underwriters will
purchase such percentage of the Option Shares as is equal to the percentage of
Firm Shares that such Underwriter is purchasing.
(c) After the Registration Statement becomes effective,
upon the authorization by you of the release of the Shares, the several
Underwriters propose to offer the Firm Shares and the Option Shares purchased
by the Underwriters for sale initially at the price per share set forth in the
Prospectus (the initial offering price) and upon the terms set forth therein.
2. DELIVERY AND PAYMENT.
Delivery of the Firm Shares shall be made to you by or on
behalf of the Company and the Selling Shareholders against payment of the
purchase price by certified or official bank check payable to the order of the
Company (except that payment for the shares being sold by Xxxx Xxxxxxx Mutual
Life Insurance Co. ("Xxxx Xxxxxxx") and Enterprise Finance Company
("Enterprise")(individually, Xxxx Xxxxxxx and Enterprise are referred to as an
Institutional Selling Shareholder and collectively as the "Institutional
Selling Shareholders") will be made by wire transfer directly to the order of
such Institutional Selling Shareholder) at the offices of Wheat, First
Securities, Inc., Riverfront Plaza, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx Xxxxxxxx
00000, or at such other place as may be agreed upon by the Representatives and
the Company, at 10:00 a.m., Richmond, Virginia time, on the third full business
day following the date of this Agreement (the "Closing Date"), or at such other
time on such date, or at such other place, as may be agreed upon by the Company
and the Representatives.
To the extent the Option is exercised, delivery of the
Option Shares against payment therefor (in the manner specified above) will
take place at the offices specified above at the Option Closing Date (which,
subject to the requirements set forth above for the Option Shares Notice, may
be the Closing Date).
Certificates evidencing the Shares shall be in definitive
form and shall be registered in such names and in such denominations as you
shall request not less than 48 hours prior to the Closing Date or the Option
Closing Date, as the case may be, by written notice to the Company. For the
purpose of expediting the checking and packaging of certificates for the
Shares, the Company agrees to make such certificates available for inspection
at least 24 hours prior to the Closing Date or the Option Closing Date, as the
case may be, at a location to be designated by you, which may be in New York,
New York, or elsewhere.
2
3
The cost of original issue tax stamps, if any, in connection
with the issuance and delivery of the Firm Shares and Option Shares by the
Company to the Underwriters shall be borne by the Company. The Company will
pay and save each of the Underwriters and any subsequent holder of the Shares
harmless from any and all liabilities with respect to or resulting from any
failure or delay in paying Federal and state stamp and other transfer taxes, if
any, which may be payable or determined to be payable in connection with the
original issuance or sale to such Underwriter of the Firm Shares and Option
Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents, warrants and covenants to each of
the Underwriters that:
(a) The Company has prepared and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
(Registration No. 333-___) on Form S-1 relating to the Shares, including a
preliminary prospectus and such amendments to such registration statement as
may have been required to the date of this Agreement, under the provisions of
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (collectively referred to as the "Rules and Regulations") of the
Commission thereunder. The term "preliminary prospectus" as used herein means
a preliminary prospectus as contemplated by Rule 430 or Rule 430A of the Rules
and Regulations included at any time as part of the registration statement.
Copies of such registration statement and amendments and of each related
preliminary prospectus have been delivered to you. If such registration
statement has not become effective, a further amendment to such registration
statement, including a form of final prospectus, necessary to permit such
registration statement to become effective, will be filed promptly by the
Company with the Commission. If such registration statement has become
effective, a final prospectus containing information permitted to be omitted at
the time of effectiveness by Rule 430A of the Rules and Regulations will be
filed promptly by the Company with the Commission in accordance with Rule
424(b) of the Rules and Regulations. The term "Registration Statement" means
the registration statement as amended at the time it becomes or became
effective (the "Effective Date"), including financial statements and all
exhibits and any information deemed to be included by Rule 430A. The term
"Prospectus" means the prospectus as first filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations or, if no such filing is required,
the form of final prospectus included in the Registration Statement at the
Effective Date.
(b) On the Effective Date, the date the Prospectus is
first filed with the Commission pursuant to Rule 424(b) (if required), at all
times subsequent thereto up to and including the Closing Date and, if later,
the Option Closing Date and when any post-effective amendment to the
Registration Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, the Registration Statement and the
Prospectus (as amended or as supplemented if the Company shall have filed with
the Commission any amendment or supplement thereto), including the financial
statements included in the Prospectus, did or will comply with all applicable
provisions of the Act and the Rules and Regulations and did or will contain all
statements required to be stated therein in accordance with the Act and the
Rules and Regulations. On the Effective Date and when any post-effective
amendment to
3
4
the Registration Statement becomes effective, no part of the Registration
Statement, the Prospectus or any such amendment or supplement did or will
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading. At the Effective Date, the date the Prospectus or any
amendment or supplement to the Prospectus is filed with the Commission and at
the Closing Date and, if later, the Option Closing Date, the Prospectus did not
or will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
representations and warranties in this Section 3(b) do not apply to any
statements or omissions made in reliance on and in conformity with information
relating to the Underwriters furnished in writing to the Company by the
Representatives specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. The Company acknowledges
that the statements set forth under the heading "Underwriting" in the
Prospectus constitute the only information relating to the Underwriters
furnished in writing to the Company by the Representatives specifically for
inclusion in the Registration Statement.
(c) The only active subsidiaries (as defined in the Rules
and Regulations) of the Company are Emergent Financial Corporation, The Loan
Pro$, Inc., Premier Financial Services, Inc., Emergent Commercial Mortgage,
Inc., Emergent Business Capital Holdings Corporation, Emergent Business
Capital, Inc. and Carolina Investors, Inc. (individually, a "Subsidiary" and
collectively, the "Subsidiaries"). The Company and each of the Subsidiaries
is, and at the Closing Date will be, a corporation duly organized, validly
existing and in good standing under the laws of the respective jurisdictions of
their organization or incorporation, as the case may be. The Company and each
of the Subsidiaries has, and at the Closing Date will have, full power and
authority to conduct all the activities conducted by it, to own or lease all
the assets owned or leased by it and to conduct its business as described in
the Registration Statement and the Prospectus. The Company and each Subsidiary
is, and at the Closing Date will be, duly licensed or qualified to do business
and in good standing as a foreign corporation in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets owned
or leased by it makes such licensing or qualification necessary. Except for
the stock of the Subsidiaries or as disclosed in the Registration Statement,
the Company does not own, and at the Closing Date will not own, directly or
indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity. Complete and correct
copies of the Articles of Incorporation and the Bylaws of the Company and each
Subsidiary, and all amendments thereto, have been delivered to you, and no
changes therein will be made subsequent to the date hereof and prior to the
Closing Date or, if later, the Option Closing Date, except [describe conversion
of Class A common stock and authorization of additional Common Stock, if
necessary].
(d) The outstanding shares of the Company's Common Stock and Class
A Common Stock have been, and the Shares to be issued and sold by the Company
upon such issuance will be, duly authorized, validly issued, fully paid and
nonassessable and will not be subject to any preemptive or similar right. The
description of the Common Stock and Class A Common Stock in the Registration
Statement and the Prospectus is, and at the Closing Date will be, complete and
accurate in all respects. Except as set forth in the Prospectus, the Company
4
5
does not have outstanding, and at the Closing Date will not have outstanding,
any options to purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or commitments to
issue or sell any shares of Common Stock or Class A Common Stock or any such
warrants, convertible securities or obligations. On or prior to the Closing
Date, all steps necessary to complete a 2-for-1 stock split of the Common Stock
and Class A Common Stock shall have been taken, and such stock split shall have
been consummated.
(e) The financial statements and schedules included in the
Registration Statement or the Prospectus present fairly the consolidated
financial condition of the Company as of the respective dates thereof and the
consolidated results of operations and cash flows of the Company for the
respective periods covered thereby, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire
period involved, except as otherwise disclosed in the Prospectus. The
financial and statistical data set forth in the Prospectus under the captions
"Prospectus Summary," "Summary Consolidated Financial and Operating Data," "Use
of Proceeds," "Capitalization," "Selected Consolidated Financial and Operating
Data," "Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Management" and "Principal and Selling
Shareholders" fairly presents the information set forth therein on the basis
stated in the Prospectus. No other financial statements or schedules of the
Company are required by the Act, the Exchange Act (as hereinafter defined) or
the Rules and Regulations to be included in the Registration Statement or the
Prospectus. Xxxxxxx, Xxxxx & Co. L.L.P. (the "Accountants"), who have
reported on such financial statements and schedules, are independent auditors
with respect to the Company as required by the Act and the Rules and
Regulations.
(f) The Company's system of internal accounting controls taken as
a whole is sufficient to meet the broad objectives of internal accounting
control insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation to the
Company's financial statements; and, except as disclosed in the Prospectus,
neither the Company nor any of its Subsidiaries, nor any employee or agent of
the Company or any Subsidiary has made any payment of funds of the Company or
any Subsidiary or received or retained any funds in violation of any law, rule
or regulation, the receipt or payment of which could have a material adverse
effect on the Company.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date, except as set forth in the Registration Statement and the Prospectus, (i)
there has not been and will not have been any material adverse change in the
business, properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, arising for any
reason whatsoever, (ii) neither the Company nor its Subsidiaries has incurred
nor will it incur any material liabilities or obligations, direct or
contingent, except in the ordinary course of business, (iii) the Company has
not and will not have paid or declared any dividends or other distributions of
any kind on any class of its capital stock, other than as described in the last
sentence of Section 3(d), above, and (iv) there has not been and will not have
been any change in the capitalization of the Company other than (x) pursuant to
the exercise of employee stock options and (y) as described in the last sentence
of Section 3(d), above.
5
6
(h) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended.
(i) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or threatened
against or affecting the Company or any Subsidiary or any of their respective
officers in their capacity as such, before or by any Federal or state court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or finding would
materially and adversely affect the Company or its Subsidiaries or its
business, properties, business prospects, condition (financial or otherwise) or
results of operations or prevent or materially hinder the consummation of this
Agreement.
(j) The Company and each Subsidiary has, and at the Closing Date
will have, (i) all governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to carry on its business as contemplated in
the Prospectus, (ii) complied in all material respects with all laws,
regulations and orders applicable to it or its business and (iii) performed all
obligations required to be performed by it, and is not, and at the Closing Date
will not be, in default, under any contract or other instrument material to it
to which it is a party or by which its property is bound or affected. To the
best knowledge of the Company and each Subsidiary, no other party under any
contract or other instrument to which it is a party is in default in any
respect thereunder. Neither the Company nor any Subsidiary is, nor at the
Closing Date will any of them be, in violation of any provision of its Articles
of Incorporation.
(k) No consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body is required for
the consummation by the Company of the transactions on its part herein
contemplated, except such as have been obtained under the Act or the Rules and
Regulations and such as may be required under state securities or Blue Sky laws
or the bylaws and rules of the National Association of Securities Dealers, Inc.
(the "NASD") in connection with the purchase and distribution by the
Underwriters of the Shares.
(l) The Company has full corporate power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company and is enforceable against the Company in accordance with the terms
hereof subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law). The performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in the
creation or imposition of any material lien, charge or encumbrance upon any of
the assets of the Company or any Subsidiary pursuant to the terms or provisions
of, or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate any of
its obligations under, or result in the acceleration of any obligation under,
the Articles of Incorporation or Bylaws of the Company or its Subsidiaries, any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence
6
7
of indebtedness, lease, contract or other agreement or instrument to which the
Company or any Subsidiary is a party or by which the Company or any Subsidiary
or any of its or their properties are bound or affected, or violate or conflict
with any judgment, ruling, decree, order, statute, rule or regulation of any
court or other governmental agency or body applicable to the business or
properties of the Company or any Subsidiary.
(m) The Company and each Subsidiary has good and marketable title
to all properties and assets described in the Prospectus as owned by it, free
and clear of all liens, charges, encumbrances or restrictions, except such as
are described in the Prospectus or are not material to the business of the
Company or its Subsidiaries. The Company and each Subsidiary has valid,
subsisting and enforceable leases for the properties described in the
Prospectus as leased by it, with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
properties by the Company and such Subsidiaries. The Company and each of its
Subsidiaries owns or leases all such properties as are necessary to its
operations as now conducted.
(n) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that is not described or filed as
required. 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 such Subsidiary in
accordance with the terms thereof subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
subject, as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(o) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or document required by
this Agreement to be delivered to you was or will be, when made, inaccurate,
untrue or incorrect in any material respect.
(p) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action designed, or
which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares or the Common Stock.
(q) Other than the Selling Shareholders, no holder of securities
of the Company has rights to the registration of any securities of the Company
because of the filing of the Registration Statement.
(r) The Company has taken such action as necessary to have the
Shares authorized for quotation on the National Association of Securities
Dealers Automated Quotation National Market System (the "Nasdaq National
Market").
7
8
(s) Other than as contemplated by this Agreement, there is no
broker, finder or other party that is entitled to receive from the Company or
any Subsidiary any brokerage or finder's fee or other fee or commission as a
result of any of the transactions contemplated by this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS.
Each of the Selling Shareholders, severally and not jointly,
represents, warrants and covenants to each Underwriter that:
(a) Such Selling Shareholder at the Closing Date will have good
and valid title to the Shares set forth in Schedule II to be sold by such
Selling Shareholder, free and clear of any liens, encumbrances, equities and
claims (other than as imposed by the Act or this Agreement), and full right,
power and authority to effect the sale and delivery of such Shares; and upon
the delivery of and payment for the Shares to be sold by such Selling
Shareholder pursuant to this Agreement, good and valid title thereto, free and
clear of any liens, encumbrances, equities and claims, will be transferred to
the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the
Selling Shareholders' Power of Attorney (the "Power of Attorney") in the form
previously delivered to the Representatives, appointing Xxxx X. Xxxxxxxx, Xx.,
Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx, and each of them as such Selling
Shareholder's attorney-in-fact (the "Attorney-in-Fact") and Wyche, Burgess,
Xxxxxxx & Xxxxxx, P.A., as custodian (the "Custodian"). The Attorney-in-Fact
is authorized to execute, deliver and perform this Agreement on behalf of such
Selling Shareholder, to deliver the Shares to be sold by such Selling
Shareholder hereunder, to accept payment therefor and otherwise to act on
behalf of such Selling Shareholder in connection with this Agreement.
Certificates, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank, representing the
Shares to be sold by such Selling Shareholder hereunder have been deposited
with the Custodian pursuant to the Custody Agreement for the purpose of
delivery pursuant to this Agreement. Such Selling Shareholder agrees that the
shares of Common Stock represented by the certificates on deposit with the
Custodian are subject to the interest of the Underwriters hereunder, that the
arrangements made for such custody and the appointment of the Attorney-in-Fact
are to that extent irrevocable, and that the obligations of such Selling
Shareholder hereunder shall not be terminated except as provided in this
Agreement and the Custody Agreement. If such Selling Shareholder should
dissolve, or if any other event should occur before the delivery of the Shares
of such Selling Shareholder hereunder, the certificates for such Shares
deposited with the Custodian shall be delivered by the Custodian in accordance
with the terms and conditions of this Agreement as if such dissolution or other
event had not occurred, regardless of whether or not the Custodian or the
Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through its duly authorized
Attorney-in-Fact, has duly executed and delivered this Agreement, the Selling
Shareholders' Custody Agreement (the "Custody Agreement") and the Power of
Attorney; this Agreement constitutes a legal valid and binding obligation of
such Selling Shareholder subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
subject,
8
9
as to enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law); all authorizations
and consents necessary for the execution and delivery of this Agreement, the
Custody Agreement and the Power of Attorney on behalf of such Selling
Shareholder and for the sale and delivery of the Shares to be sold by such
Selling Shareholder hereunder have been given, except as may be required by the
Act or state securities laws or the NASD; and such Selling Shareholder has the
legal capacity and full right, power and authority to execute this Agreement,
the Custody Agreement and the Power of Attorney.
(d) The performance of this Agreement, the Custody Agreement and
the Power of Attorney and the consummation of the transactions contemplated
hereby and thereby by each of the Selling Shareholders will not result in a
material breach or violation of, or material conflict with, any of the terms or
provisions of, or constitute a material default by such Selling Shareholder
under, any indenture, mortgage, deed of trust (constructive or other), loan
agreement, lease, franchise, license or other agreement or instrument to which
such Selling Shareholder or any of its properties is bound, any statute, or any
judgment, decree, order, rule or regulation or any court or governmental agency
or body applicable to such Selling Shareholder or any of its properties.
(e) Such Selling Shareholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offer and sale of the Shares other than any preliminary prospectus prepared and
filed by the Company with the Commission or the Prospectus or other material
permitted by the Act.
(f) For a period of 180 days from the Effective Date of the
Registration Statement, such Selling Shareholder will not, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of any shares of Common Stock, other than to the Underwriters pursuant
to this Agreement, without the prior written consent of Wheat, First
Securities, Inc.; provided, however, that the undersigned may give or pledge
any such securities without the prior written consent of Wheat, First
Securities, Inc. if the donee or pledgee, as the case may be, agrees in writing
prior to such gift or pledge to be bound by the terms of this agreement and
such writing is delivered to Wheat, First Securities, Inc. within five days
after said gift or pledge.
(g) To the extent that any statements or omissions made in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling Shareholder
expressly for use therein, such Registration Statement, preliminary prospectus
and Prospectus and any amendments or supplements thereto did not and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(h) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory body, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement by such Selling Shareholder, and the consummation by it of the
transaction herein contemplated (other than as required by the Act, state
securities laws and the NASD).
9
10
(i) Any certificates signed by or on behalf of such Selling
Shareholder as such and delivered to the Representatives or to counsel for the
Representatives shall be deemed a representation and warranty by such Selling
Shareholder to each Underwriter as to the matters covered thereby.
(j) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein contemplated
such Selling Shareholder agrees to deliver to you prior to or at the Closing
Date a properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(k) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or which might
constitute or reasonably be expected to constitute, stabilization or
manipulation of the price of the Common Stock.
5. COVENANTS OF THE COMPANY.
The Company covenants and agrees with each of the Underwriters as
follows:
(a) The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by an underwriter or dealer,
file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to you within
a reasonable period of time prior to the filing thereof and you shall not have
objected thereto in good faith.
(b) The Company will use its best efforts to cause the
Registration Statement to become effective, and will notify you promptly, and
will confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes
effective, (ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose or the threat thereof, (iv) of the happening of
any event during the period mentioned in the second sentence of Section 5(e)
that in the judgment of the Company makes any statement made in the
Registration Statement or the Prospectus untrue or that requires the making of
any changes in the Registration Statement or the Prospectus in order to make
the statements therein, in light of the circumstances in which they are made,
not misleading, and (v) of receipt by the Company or any representatives or
attorney of the Company of any other communication from the Commission relating
to the Company, the Registration Statement, any preliminary prospectus or the
Prospectus. If at any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible moment. If the Company has omitted any information from the
Registration Statement pursuant to Rule 430A of the Rules and Regulations, the
Company will use its best efforts to comply with the provisions of and make all
requisite filings with the
10
11
Commission pursuant to said Rule 430A and to notify the Representatives
promptly of all such filings.
(c) The Company will furnish to you, without charge, three signed
copies of the Registration Statement and of any post-effective amendment
thereto, including financial statements and schedules, and all exhibits
thereto.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement. The Company will, from
time to time, after the effective date of the Registration Statement file with
the Commission such reports as are required by the Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and the Rules and
Regulations, and shall also file with state securities commissions in states
where the Shares have been sold by you (as you shall have advised us in
writing) such reports as are required to be filed by the securities acts and
the regulations of those states.
(e) On the Effective Date, and thereafter from time to time until
expiration of the period mentioned in the second sentence of this Section 5(e),
the Company will deliver to each of you, without charge, as many copies of the
Prospectus or any amendment or supplement thereto as you may reasonably
request. The Company consents to the use of the Prospectus or any amendment or
supplement thereto by you and by all dealers to whom the Shares may be sold,
both in connection with the offering or sale of the Shares and for any period
of time thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any event
shall occur which in the judgment of the Company or your counsel should be set
forth in the Prospectus in order to make any statement therein, in light of the
circumstances under which it was made, not misleading, or if it is necessary to
supplement or amend the Prospectus to comply with law, the Company will
forthwith prepare and duly file with the Commission an appropriate supplement
or amendment thereto, and will deliver to each of you, without charge, such
number of copies thereof as you may reasonably request.
(f) Prior to any public offering of the Shares by you, the Company
will cooperate with you and your counsel in connection with the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you may request; provided, that in no event shall
the Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject.
(g) During the period of three years commencing on the Effective
Date, the Company will furnish to the Representatives copies of such financial
statements and other periodic and special reports as the Company may from time
to time distribute generally to the holders of any class of its capital stock,
and will furnish to you a copy of each annual or other report it shall be
required to file with the Commission. During such period, the Company will
promptly notify you in writing if it appears to the Company that it is likely
that the Company will not in a timely manner furnish to its shareholders an
annual report containing audited
11
12
financial statements or a quarterly report for one of the first three quarters
of the fiscal year containing unaudited financial information.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the last
day of the fifteenth full calendar month following the calendar quarter in
which the Effective Date falls, an earnings statement (which need not be
audited but shall be in reasonable detail) for a period of 12 months ended
commencing after the Effective Date, and satisfying the provisions of Section
11(a) of the Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company will pay, or
reimburse if paid by the Underwriters, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement, including
but not limited to costs and expenses of or relating to (i) the preparation,
printing, and filing of the Registration Statement and exhibits to it, each
preliminary prospectus, the Prospectus and any amendment or supplement to the
Registration Statement or the Prospectus, (ii) the preparation and delivery of
certificates representing the Shares, (iii) the printing of this Agreement and
other underwriting documents, including Underwriter's Questionnaires,
Underwriter's Powers of Attorney, Blue Sky Memorandum, Master Agreement Among
Underwriters and Master Selected Dealer Agreements, (iv) furnishing (including
costs of shipping and mailing) such copies of the Registration Statement, the
Prospectus and any preliminary prospectus, and all amendments and supplements
thereto, as may be requested for use in connection with the offering and sale
of the Shares by the Underwriters or by dealers to whom Shares may be sold, (v)
the quotation of the Shares on the Nasdaq National Market, (vi) any filings
required to be made by you with the NASD, and the fees, disbursements and other
charges of your counsel in connection therewith, (vii) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions designated pursuant to Section 5(f), including the
fees, disbursements and other charges of your counsel in connection therewith,
and the preparation and printing of preliminary, supplemental and final Blue
Sky memoranda (subject to a maximum fee of $30,000, assuming no unusual
circumstances), and (ix) the transfer agent for the Shares.
(j) If this Agreement shall be terminated by the Company or if for
any reason the Company shall be unable to perform its obligations hereunder,
the Company will reimburse you for all out-of-pocket expenses (including the
fees, disbursements and other charges of your counsel) reasonably incurred by
them in connection herewith. If this Agreement shall be terminated by the
Underwriters based upon an Act of God or other circumstances not involving a
matter within the control of the Company or any fault of the Company, the
Company shall have no obligation to reimburse you for any out-of-pocket
expenses.
(k) The Company will not at any time, directly or indirectly, take
any action designed, or which might reasonably be expected, to cause or result
in, or which will constitute, stabilization of the price of the shares of
Common Stock to facilitate the sale or resale of any of the Shares.
12
13
(l) The Company will apply the net proceeds from the offering and
sale of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds."
(m) During the period of 180 days commencing at the Closing Date,
the Company will not, without your prior written consent, grant options to
purchase shares of Common Stock or Class A Common Stock except under stock
option plans previously approved by the Company's shareholders, and except at
prices equal to or greater than "fair market value", as defined in the
Company's 1995 Employee and Officer Stock Option Plan and in the Company's
1995 Director Stock Option Plan.
(n) The Company will not, and will cause each of its executive
officers, directors and each beneficial owner or more than 1% of the
outstanding shares of Common Stock or Class A Common Stock (if any) to enter
into agreements with you to the effect that they will not, for a period of 180
days after the commencement of the public offering of the Shares, without your
prior written consent (which shall not be unreasonably withheld), sell,
contract to sell or otherwise dispose of any shares of Common Stock or Class A
Common Stock or rights to acquire such shares (other than pursuant to stock
option plans for employees or directors or in connection with other employee
incentive compensation arrangements and other than as otherwise set forth in
such agreements).
(o) If at any time during the 25 day period after the Registration
Statement is declared effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which, in your opinion, the
market price for the Shares has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after written
notice from you advising it as to the effect set forth above, prepare, consult
with you concerning the substance of and disseminate a press release or other
public statement, reasonably satisfactory to you, responding to or commenting
on such rumor, publication or event.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS.
The respective obligations of the Underwriters to purchase and pay
for the Shares shall be subject, in their discretion, to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
herein as of the date here of and as of the Closing Date as if made on and as
of the Closing Date, to the accuracy of the statements of the Company's
officers made pursuant to the provisions hereof, to the performance by the
Company and the Selling Shareholders of all of their covenants and agreements
hereunder and to the following additional conditions:
(a) Notification that the Registration Statement has become
effective shall be received by you not later than 5:30 p.m., Richmond, Virginia
time, on the date of this Agreement or at such later date and time as shall be
consented to in writing by you and all filings required by Rule 424 and Rule
430A of the Rules and Regulations shall have been made.
13
14
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the
Commission or such authorities and to the satisfaction of the Representatives,
(iv) after the date hereof no amendment or supplement to the Registration
Statement or the Prospectus shall have been filed unless a copy thereof was
first submitted to you and you did not object thereto in good faith, (v) the
NASD, upon review of the terms of the public offering of the Shares, shall not
have objected to such offering, such terms or the Underwriters' participation
in the same, and (vi) and you shall have received certificates, dated the
Closing Date and the Option Closing Date and signed by the Chief Executive
Officer or the Chairman of the Board of Directors of the Company and the Chief
Financial Officer of the Company (who may, as to proceedings threatened, rely
upon the best of their information and belief), to the effect of clauses (i),
(ii) and (iii).
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there shall not
have been a material adverse change, or any development involving a prospective
material adverse change, in the general affairs, business, business prospects,
properties, management, key personnel, condition (financial or otherwise) or
results of operations of the Company or any Subsidiary, whether or not arising
from transactions in the ordinary course of business, in each case other than
as set forth in the Registration Statement and the Prospectus (or, in the case
of a prospective change, other than as contemplated by the Registration
Statement and the Prospectus), and (ii) the Company shall not have sustained
any material loss or interference with its business or properties from fire,
explosion, flood, hurricane or other casualty or calamity, whether or not
covered by insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree, which is not set forth in the
Registration Statement and the Prospectus, if in your reasonable judgment any
such development makes it impracticable or inadvisable to consummate the sale
and delivery of the Shares by you at the public offering price.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall have been
no litigation or other proceeding instituted against the Company or any of its
officers or directors in their capacities as such, before or by any Federal,
state, or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or proceeding
an unfavorable ruling, decision or finding would materially and adversely
affect the business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company.
(e) Each of the representations and warranties of the
Company and the Selling Shareholders contained herein shall be true and correct
in all material respects at the Closing Date and, with respect to the Option
Shares, at the Option Closing Date, as if made at the Closing Date, and all
covenants and agreements herein contained to be performed on the part
14
15
of the Company or the Selling Shareholders and all conditions herein contained
to be fulfilled or complied with by the Company or the Selling Shareholder at
or prior to the Closing Date and, with respect to the Option Shares, at or
prior to the Option Closing Date, shall have been duly performed, fulfilled or
complied with.
(f) The Underwriters shall have received an opinion, dated the
Closing Date and, with respect to the Option Shares, the Option Closing Date,
and satisfactory in form and substance to your counsel, from Wyche, Burgess,
Xxxxxxx & Xxxxxx, P.A., counsel to the Company, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
South Carolina, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus.
(ii) Each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation or organization, as the case may be; each Subsidiary has
the corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and each Subsidiary is
qualified to do business as a foreign corporation in good standing in
all other jurisdictions when the failure to so qualify would have a
material adverse effect upon the Company and its Subsidiaries taken as
a whole.
(iii) As of the dates specified therein, the Company had
authorized and issued capital stock as set forth under the caption
"Capitalization" in the Prospectus. All the outstanding shares of
capital stock of each Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable, and except as
otherwise set forth in the Prospectus, all outstanding shares of
capital stock of each of the Subsidiaries (except directors'
qualifying shares) are owned by the Company free and clear of any
perfected security interest and any other security interests, claims,
liens or encumbrances.
(iv) The Shares delivered on such Closing Date have been
duly authorized, validly issued and are fully paid and nonassessable,
and conform to the description thereof contained in the Prospectus.
(v) The outstanding shares of Common Stock and Class A
Common Stock have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the shareholders of the Company have
no preemptive or similar rights with respect to the Shares, the Common
Stock or the Class A Common Stock. All offers and sales of the
Company's securities during the past three years were at all relevant
times duly registered or exempt from the registration requirements of
the Act and were duly registered or the subject of an exemption from
the registration requirements of applicable state securities or Blue
Sky laws.
15
16
(vi) There are no contracts, agreements or understandings
known to such counsel between the Company and any person other than
the Selling Shareholders granting such person the right to require the
Company to file a registration statement under the Act with respect to
any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act.
(vii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
for the issuance or sale of the Shares or the consummation of the
other transactions contemplated by this Agreement, except such as have
been obtained and made under the Act, the Exchange Act and such as may
be required under state securities or Blue Sky laws.
(viii) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated, including the issuance and sale of the Shares and
compliance with the provisions thereof, will not result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, (A) any statute, rule, regulation or, to the knowledge
of such counsel, order of any governmental agency or body or any court
having jurisdiction over the Company or the Subsidiaries or any of its
properties, or (B) any material obligation, agreement, covenant or
condition contained in any agreement or instrument to the knowledge of
such counsel to which the Company or the Subsidiaries is a party or by
which the Company or the Subsidiaries is bound or to which any of the
properties of the Company or the Subsidiaries is subject, or (C) the
Articles of Incorporation as amended, of the Company, or the Bylaws of
the Company or the Articles of Incorporation or Bylaws of the
Subsidiaries, and the Company has full power and authority to
authorize, issue and sell the Shares as contemplated by this
Agreement.
(ix) The Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein or was included in the Registration Statement (as
the case may be), and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act; the Registration Statement and 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 (except that
such counsel need express no opinion as to financial statements,
schedules and other financial or statistical information included
therein); the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental
16
17
proceedings and contracts and other documents are accurate in
all material respects and fairly present the information
required to be shown; and such counsel does not know of any
statutes or regulations or any pending or threatened legal or
governmental proceedings, required to be described in the
Prospectus which are not described as required nor of any
contracts or documents of a character required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial
statements, schedules or other financial or statistical data
contained in the Registration Statement or the Prospectus or
as to the section of the Prospectus entitled "Underwriting. "
(x) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding obligation of the Company enforceable in
accordance with its terms, except (A) as such enforceability
may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or similar laws now or hereafter in
effect relating to creditors' rights or debtors' obligations
generally; (B) that the remedies of specific performance and
injunctive and other forms of relief are subject to general
equitable principles, whether enforcement is sought at law or
in equity, and that such enforcement may be subject to the
discretion of the court before which any proceedings therefor
may be brought; and (C) as rights to indemnity and
contribution may be limited by state or Federal laws relating
to securities or the policies underlying such laws.
Such opinion shall also contain a statement by counsel to the
effect that such counsel have no reason to believe that the Registration
Statement, or any amendment thereto, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, or any supplement thereto, as of its issue
date, included any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statement of a material fact or
omitted to state any material fact necessary in order to make the statements,
in light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent proper, on certificates of responsible officers of the
Company.
(g) The Underwriters shall have received an opinion,
dated the Closing Date, and satisfactory in form and substance to your counsel,
from counsel for each of the Institutional Selling Shareholders and from Wyche,
Burgess, Xxxxxxx & Xxxxxx, P.A., counsel for the remaining Selling
Shareholders, to the effect that:
(i) This Agreement, the Custody Agreement and
the Power of Attorney have been duly executed and delivered by
or on behalf of each of the Selling Shareholders and
constitute valid and binding agreements of such Selling
Shareholders in accordance with their terms, except as
enforceability may be
17
18
limited by applicable equitable principles or by bankruptcy,
insolvency, moratorium, reorganization or similar laws from
time to time in effect affecting the enforcement of creditors'
rights and except that the enforceability of the rights to
indemnity and contribution contained herein may be limited by
federal or state laws and public policy underlying such laws.
(ii) To the knowledge of such counsel, the sale of
the Shares to be sold by each Selling Shareholder hereunder
and the compliance by such Selling Shareholder with all of the
provisions of this Agreement, the Custody Agreement and the
Power of Attorney and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of,
or constitute a default under any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which such Selling
Shareholder is a party or by which such Selling Shareholder is
bound or to which any of the property or assets of such
Selling Shareholder is subject, or any statute, order, rule or
regulation of any court or governmental agency or body known
to such counsel to be applicable to such Selling Shareholder
or the property of such Selling Shareholder.
(iii) To the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental
agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with
the Shares to be sold by each Selling Shareholder hereunder,
except which have been duly obtained and in full force and
effect, such as have been obtained under the Act and such as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of such Shares
by the Underwriters, as to which such counsel need express no
opinion.
(iv) Assuming that the Underwriters will take
delivery of the Shares for value in good faith and without
notice of any adverse claim and that the Underwriters are not
parties themselves to any fraud or illegality affecting the
Shares, and by delivery of a certificate or certificates
therefor, the Selling Shareholders will transfer to the
Underwriters good and valid title to such shares, free and
clear of any pledge, lien, security interest, charge, claim,
equity, or encumbrance of any kind.
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent proper, on certificates of the Selling Shareholders and
the representations and warranties contained in the Power of Attorney executed
by such Selling Shareholder. Such counsel also may rely as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of the
Company and public officials.
(h) You shall have received an opinion, dated the Closing
Date and the Option Closing Date, from Xxxxxx Xxxxxxx Xxxxx & Scarborough,
L.L.P., as your counsel, with respect to the Registration Statement, the
Prospectus and this Agreement, which opinion shall be
18
19
satisfactory in all respects to you, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(i) The Representative shall have received from the
Accountants a letter dated the date hereof, and at the Closing Date a second
letter dated the Closing Date, in form and substance satisfactory to the
Representatives, stating that they are independent auditors with respect to the
Company and its Subsidiaries within the meaning of the Act and the applicable
Rules and Regulations, and to the effect that:
(i) In their opinion, the financial statements
and schedules examined by them and included in the
Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Act and the Rules and Regulations and are presented in
accordance with generally accepted accounting principles; and
they have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the interim financial statements, selected
financial and operating data, and/or condensed financial
statements derived from audited financial statements of the
Company.
(ii) The selected financial and operating
information included in the Preliminary Prospectus and the
Prospectus under the captions "Prospectus Summary" and
"Selected Consolidated Financial and Operating Data" for each
of the fiscal years ended December 31, 1991, 1992, 1993, 1994
and 1995 agrees with the corresponding amounts in the audited
financial statements included in the Prospectus or previously
reported on by them.
(iii) On the basis of a reading of the latest
available interim financial statements (unaudited) of the
Company and its Subsidiaries, a reading of the minute books of
the Company and its Subsidiaries, inquiries of officials of
the Company responsible for financial and accounting matters
and other specified procedures, all of which have been agreed
to by the Representatives, nothing came to their attention
that caused them to believe that:
a. the unaudited financial statements
included in the Registration Statement do not comply
as to form in all material respects with the
accounting requirements of the federal securities
laws and the related published rules and regulations
thereunder or are not in conformity with generally
accepted accounting principles applied on a basis
consistent with the basis for the audited financial
statements contained in the Registration Statement;
b. any other unaudited financial
statement data included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which data was
derived and any such unaudited data were not
determined on a basis consistent with the
19
20
basis for the corresponding amounts in the audited
financial statements included in the Prospectus;
c. at a specified date not more than
five days prior to the date of delivery of such
respective letter, there was any change in the
consolidated capital stock, decline in stockholders'
equity or increase in long-term debt of the Company
and its Subsidiaries, or other items specified by the
Underwriters, in each case as compared with amounts
shown in the latest balance sheets included in the
Prospectus, except in each case for changes,
decreases or increases which the Prospectus discloses
have occurred or may occur or which are described in
such letters; and
d. for the period from the closing date
of the latest statements of income included in the
Prospectus to a specified date not more than five
days prior to the date of delivery of such respective
letter, there were any decreases in net revenues or
net income of the Company, or other items appearing
on the face of the statement of operations specified
by the Representatives, or any increases in any items
appearing on the face of the statement of operations
specified by the Representatives, in each case as
compared with the corresponding period of the
preceding year, except in each case for decreases
which the Prospectus discloses have occurred or may
occur or which are described in such letter.
(iv) They have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information specified by
you which are derived from the general accounting records of
the Company and its Subsidiaries, which appear in the
Prospectus and have compared and agreed such amounts,
percentages and financial information with the accounting
records of the Company and its Subsidiaries or to analyses and
schedules prepared by the Company and its Subsidiaries from
its detailed accounting records.
In the event that the letters to be delivered referred to
above set forth any such changes, decreases or increases, it shall be a further
condition to the obligations of the Underwriters that the Underwriters shall
have reasonably determined, after discussions with officers of the Company
responsible for financial and accounting matters and with the Accountants, that
such changes, decreases or increases as are set forth in such letters do not
reflect a material adverse change in the stockholders' equity or long-term debt
of the Company as compared with the amounts shown in the latest balance sheet
of the Company included in the Prospectus, or a material adverse change in
total net revenues or net income of the Company, in each case as compared with
the corresponding period of the prior year.
(j) At the Closing Date and, as to the Option Shares, the
Option Closing Date, there shall be furnished to you a certificate, dated the
date of its delivery, signed by each of the
20
21
Chief Executive Officer and Chief Financial Officer of the Company, in form and
substance satisfactory to you, to the effect that:
(i) Each of the representations and warranties of
the Company contained in Section 3 of this Agreement were,
when originally made, and are, at the time such certificate is
delivered, true and correct in all material respects;
(ii) Each of the covenants required herein to be
performed by the Company on or prior to the delivery of such
certificate has been duly, timely and fully performed and each
condition herein required to be complied with by the Company
on or prior to the date of such certificate has been duly,
timely and fully complied with.
(k) On or prior to the Closing Date, you shall have
received the executed agreements referred to in Section 5(n).
(l) The Shares shall be qualified for sale in such states
as you may reasonably request, each such qualification shall be in effect and
not subject to any stop order or other proceeding on the Closing Date or the
Option Closing Date.
(m) The Shares shall have been duly authorized for
quotation on the Nasdaq National Market upon official notice of issuance.
(n) No Underwriter shall have advised the Company that
the Registration Statement, any preliminary prospectus, the Prospectus, or any
amendment or any supplement thereto, contains an untrue statement of fact
which, in your reasonable judgment, is material, or omits to state a fact
which, in your reasonable judgment, is material and is required to be stated
therein or necessary to make the statements therein not misleading and the
Company shall not have cured such untrue statement of fact or stated a
statement of fact required to be stated therein.
(o) The Company shall have furnished to you such
certificates, in addition to those specifically mentioned herein, as you may
have reasonably requested as to the accuracy and completeness at the Closing
Date and the Option Closing Date of any statement in the Registration Statement
or the Prospectus, as to the accuracy at the Closing Date and the Option
Closing Date of the representations and warranties of the Company herein, as to
the performance by the Company of its obligations hereunder, or as to the
fulfillment of the conditions concurrent and precedent to your obligations
hereunder.
(p) The Selling Shareholders or the Attorney-in-Fact
shall deliver to the Underwriters a certificate dated the Closing Date and
executed by each Selling Shareholder or the Attorney-in-Fact to the effect that
the representations and warranties of such Selling Shareholder shall be true
and correct as of the Closing Date.
21
22
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person, if any, who controls each Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, liabilities, expenses and damages (including any and
all investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted), to which they, or any of them, may become subject under
the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based in whole or in part
upon (i) any inaccuracy in the representations and warranties of the Company
contained herein, (ii) any failure of the Company to perform its obligations
hereunder or under law or (iii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus or in any documents filed under the
Exchange Act or any blue sky application or filing, or the omission or alleged
omission to state in such document a material fact required to be stated in it
or necessary to make the statements in it not misleading; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus or the Prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage or liability; and further
provided, that the Company will not be liable to the extent that such loss,
claim, liability, expense or damage arises from the sale of the Shares in the
public offering to any person by an Underwriter and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to an Underwriter furnished in
writing to the Company by an Underwriter expressly for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus. The
Company acknowledges that the statements set forth under the heading
"Underwriting" in any preliminary prospectus and the Prospectus constitute the
only information relating to any Underwriter furnished in writing to the
Company by you expressly for inclusion in the Registration Statement, any
preliminary prospectus or the Prospectus. This indemnity agreement will be in
addition to any liability that the Company might otherwise have.
(b) Each Selling Shareholder (other than the
Institutional Selling Shareholders) agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, and the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section, provided, however, that the
indemnification obligation of each Selling Shareholder shall be limited to the
aggregate public offering price of the Shares sold by such Selling Shareholder,
from and against any and all losses, claims, damages and liabilities caused
22
23
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendment or supplement
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
reference to information relating to such Selling Shareholder furnished in
writing by or on behalf of such Selling Shareholder expressly for use in the
Registration Statement or the Prospectus or in any preliminary prospectus;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus or the Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Shares, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
(c) The Institutional Selling Shareholders agree,
severally and not jointly, to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, and the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section 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 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 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 or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company, you or any other
Underwriter by the Institutional Selling Shareholders expressly for use
therein. Notwithstanding the foregoing provisions of this subsection (c), no
Institutional Selling Shareholder shall be liable to any party under this
subsection (c) in an amount in excess of the aggregate price at which the
Shares to be sold by such Institutional Selling Shareholder hereunder are
offered to the public.
(d) Each Underwriter will indemnify and hold harmless the
Company, the Selling Shareholders, each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, each director of the Company and each officer of the Company who
signs the Registration Statement to the same extent as the foregoing indemnity
from the Company to the Underwriters, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to you furnished in writing to
the Company by you expressly for use in the Registration
23
24
Statement, any preliminary prospectus or the Prospectus. The Company
acknowledges that the statements set forth under the heading "Underwriting" in
any preliminary prospectus and the Prospectus constitute the only information
relating to the Underwriters furnished in writing to the Company by the
Underwriters expressly for inclusion in the Registration Statement, any
preliminary prospectus or the Prospectus. This indemnity will be in addition to
any liability that the Underwriters might otherwise have.
(e) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 7, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying
party will not relieve it from any liability that it may have to any
indemnified party under the foregoing provisions of this Section 7 unless, and
only to the extent that, such omission results in the forfeiture of substantive
rights or defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to
the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges of such
counsel will be at the expense of such indemnified party unless (i) the
employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (ii) the indemnified party has reasonably concluded
(based on advice of counsel) that there may be legal defenses available to it
or other indemnified parties that are different from or in addition to those
available to the indemnifying party, (iii) a conflict of interests exists
(based on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party will not
have the right to direct the defense of such action on behalf of the
indemnified party) or (iv) the indemnifying party has not in fact employed
counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted
to practice in such jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges will be reimbursed
by the indemnifying party promptly as they are incurred. An indemnifying party
will not be liable for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably withheld).
24
25
(f) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in the
foregoing paragraphs (a), (b), (c) and (d) of this Section 7 is applicable in
accordance with its terms but for any reason is held to be unavailable from the
Company, the Selling Shareholders or the Underwriters, then the Company, the
Selling Shareholders and the Underwriters will contribute to the total losses,
claims, liabilities, expenses and damages (including any investigative, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted, but
after deducting any contribution received by the Company from persons other
than the Underwriters, such as persons who control the Company within the
meaning of the Act, officers of the Company who signed the Registration
Statement and directors of the Company, who may be liable for contribution) to
which the Company, the Selling Shareholders and the Underwriters may be subject
in such proportion as shall be appropriate to reflect the relative benefits
received by the Company, the Selling Shareholders and the Underwriters. The
relative benefits received by the Company, the Selling Shareholders and the
Underwriters shall be deemed to be in the same respective proportions as the
total net proceeds from the offering (before deducting expenses) received by
each of the Company and the Selling Shareholders bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
shares purchased under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. If, but only if, the allocation provided
by the foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, the Selling Shareholders and the Underwriters
with respect to the statements or omissions which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any
other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Selling Shareholders or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 7(f) were to be determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section 7(f)
shall be deemed to include, for purpose of this Section 7(f), 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 7(f), an Underwriter shall not be required to
contribute any amount in excess of the underwriting discounts received by it
(less the aggregate amount of any damages which such Underwriter and its
controlling persons have otherwise been required to pay in respect of the same
or any similar claim), and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 7(f) are several in proportion to their respective underwriting
obligations and not joint. For purposes of this Section 7(f), any person who
controls a party to this Agreement within the meaning of the Act will have the
same
25
26
rights to contribution as that party, and each officer and director of the
Company who signed the Registration Statement will have the same rights to
contribution as the Company, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for
contribution may be made under this Section 7(f), will notify any such party or
parties from whom contribution may be sought, but the omission to notify will
not relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 7(f). No party will be
liable for contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
Notwithstanding the foregoing provisions of this Section 7(f), with respect to
each claim pursuant to this Section 7(f), the liability of each Selling
Shareholder shall be several and not join and in no event exceed the aggregate
price at which the Shares to be sold by such Selling Shareholder hereunder are
offered to the public.
(g) The indemnity and contribution agreements contained
in this Section 7 and the representations and warranties of the Company and the
Selling Shareholders contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any investigation made by the
Underwriters or on their behalf, (ii) acceptance of any of the Shares and
payment therefor or (iii) any termination of this Agreement.
8. TERMINATION.
The Underwriters' obligations under this Agreement may be terminated at any
time on or prior to the Closing Date (or, with respect to the Option Shares, on
or prior to the Option Closing Date), by notice to the Company and the Selling
Shareholders from the Representatives, without liability on the part of any of
the Underwriters to the Company or the Selling Shareholders, if, prior to
delivery and payment for the Shares (or the Option Shares, as the case may be),
in your sole and reasonable judgment, (i) trading in any of the equity
securities of the Company shall have been suspended by the Commission, by an
exchange that lists the Shares or by the Nasdaq National Market, (ii) trading
in securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or limited or
minimum or maximum prices shall have been generally established on such
exchange, or additional material governmental restrictions, not in force on the
date of this Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission or any court of other
governmental authority, (iii) a general banking moratorium shall have been
declared by either Federal or state authorities or (iv) 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 declaration by the United
States of a national emergency or war or other calamity or crisis shall have
occurred the effect of any of which is such as to make it, in your sole and
reasonable judgment, impracticable or inadvisable to market the Shares on the
terms and in the manner contemplated by the Prospectus.
9. SUBSTITUTION OF UNDERWRITERS.
26
27
If any Underwriter shall fail or refuse to purchase any of the
Firm Shares which it has agreed to purchase hereunder, and the aggregate number
of Firm Shares which such defaulting Underwriter agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of Firm Shares,
the other Underwriters shall be obligated, severally, to purchase the Firm
Shares that such defaulting Underwriter agreed but failed or refused to
purchase, in the proportions which the number of Firm Shares which they have
respectively agreed to purchase pursuant to Section 1 bears to the aggregate
number of Firm Shares which all such non-defaulting Underwriters have so agreed
to purchase, or in such other proportions as you may specify; provided, that in
no event shall the maximum number of Firm Shares which an Underwriter has been
obligated to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by more than one-ninth of such number of Firm Shares without the
prior written consent of such Underwriter. If an Underwriter shall fail or
refuse to purchase any Firm Shares and the aggregate number of Firm Shares
which such defaulting Underwriter agreed but failed or refused to purchase
exceeds one-tenth of the aggregate number of the Firm Shares and arrangements
satisfactory to the non-defaulting Underwriters or the Company for the purchase
of such Firm Shares are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company for the purchase or sale of any Shares under this
Agreement. In any such case the Underwriters or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
Any action taken pursuant to this Section 9 shall not relieve any defaulting
Underwriter from liability in respect to any default of such Underwriter under
this Agreement.
10. DEFAULT BY A SELLING SHAREHOLDER.
If any of the Selling Shareholders shall fail to sell and
deliver the number of Shares that such Selling Shareholder is obligated to
sell, the Underwriters may, at their option, by notice to the Company, either
(a) require the Company to sell and deliver such number of shares of Common
Stock as to which the Selling Shareholders have defaulted, (b) elect to
purchase the Firm Shares and the Option Shares that the Company and the
non-defaulting Selling Shareholders have agreed to sell pursuant to this
Agreement, or (c) terminate this Agreement if the Company shall have refused to
sell and deliver to the Underwriters the shares of Common Stock referred to in
clause (a) of this Section 10.
In the event of a default under this Section 10 that does not
result in the termination of this Agreement, either the Underwriters or the
Company shall have the right to postpone the Closing Date or Option Closing
Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents
or arrangements. No action taken pursuant to this Section 10 shall relieve the
Company or the Selling Shareholder so defaulting from liability, if any, in
respect of such default.
11. MISCELLANEOUS.
27
28
All communications hereunder shall be in writing and, if sent
to any of the Underwriters, shall be mailed or delivered or telegraphed and
confirmed in writing to the Representatives in care of Wheat, First Securities,
Inc., Riverfront Plaza, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxxxx, or if sent to the Company or any Selling
Shareholder (except for the Institutional Selling Shareholders) shall be
mailed, delivered or telegraphed and confirmed in writing to the Company at 00
Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxx
X. Xxxxxxxx, Xx., or if sent to Xxxx Xxxxxxx shall be mailed, delivered or
telegraphed and confirmed in writing to Xxxx Xxxxxx Xxx 000, 000 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Bond and Corporate Finance
Group; or if sent to Enterprise shall be mailed, delivered or telegraphed and
confirmed in writing to XxXxxxxxx, Will & Xxxxx, 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxx, Esq.
This Agreement has been and is made solely for the several
Underwriters', the Company's and the Selling Shareholders' benefits and of the
controlling persons, directors and officers referred to in Section 7, 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. The term "successors and assigns" as used in this Agreement shall
not include a purchaser, as such purchaser, of Shares from an Underwriter.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee.
This Agreement may be signed in two or more counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
The Company, the Selling Shareholders and you each hereby
irrevocably waive any right they may have to a trial by jury in respect of any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
You hereby represent and warrant to the Company that you have
authority to act hereunder on behalf of the several Underwriters, and any
action hereunder taken by you will be binding upon all the Underwriters.
28
29
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Selling Shareholders and you.
Very truly yours,
EMERGENT GROUP, INC.
By:
---------------------------------
Xxxx X. Xxxxxxxx, Xx.,
Chairman, President and Chief
Executive Officer
SELLING SHAREHOLDERS:
By:
---------------------------------
------------------,
As Attorney-in-Fact for each of
the Selling Shareholders
identified on Schedule II hereto
Confirmed and accepted as of the
date first above written.
WHEAT, FIRST SECURITIES, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
For themselves and as Representatives
of the several Underwriters
By: Wheat, First Securities, Inc.
By:
------------------------------
29
30
SCHEDULE I
Underwriters
Number of
Name of Underwriter Firm Shares
------------------- ------------
Wheat, First Securities, Inc. . . . . . . . . . . . . .
Xxxxxxx Xxxxx & Associates, Inc. . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . 3,000,000
31
SCHEDULE II
SELLING SHAREHOLDERS
Name of Selling Shareholder Number of Shares
--------------------------- ----------------
Enterprise Finance Company 250,000
Xxxx Xxxxxxx Mutual Life Insurance Co. 550,970
Xxxxxxx X. Xxxxxx 40,000
Minor X. Xxxx 20,000
Xxxx X. Xxxxxx 20,000
TOTAL 880,970
