EXHIBIT 1.1
XXXXXXXXX TECHNOLOGIES CORPORATION
3,200,000 Shares
Common Stock
($0.20 Par Value)
FORM OF UNDERWRITING AGREEMENT
November 19, 2004
UNDERWRITING AGREEMENT
November 19, 2004
UBS Securities LLC
Wachovia Capital Markets, LLC
KeyBanc Capital Markets, a Division of McDonald Investments Inc.
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxxx Technologies Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell to the underwriters named in
Schedule A annexed hereto (the "Underwriters"), for whom you are acting as
representative(s), an aggregate of 3,200,000 shares (the "Firm Shares") of
Common Stock, $0.20 par value (the "Common Stock"), of the Company. In addition,
solely for the purpose of covering over-allotments, the Company proposes to
grant to the Underwriters the option to purchase from the Company up to an
additional 480,000 shares of Common Stock (the "Additional Shares"). The Firm
Shares and the Additional Shares are hereinafter collectively sometimes referred
to as the "Shares." The Shares are described in the Prospectus which is referred
to below.
The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-117905
including a prospectus, relating to the Shares, which incorporates by reference
documents which the Company has filed or will file in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the "Exchange Act"). The Company has
prepared a prospectus supplement (the "Prospectus Supplement") to the prospectus
included in the registration statement referred to above setting forth the terms
of the offering, sale and plan of distribution of the Shares and additional
information concerning the Company and its business. The Company has furnished
to you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectus supplements, containing, among other things, the
prospectus included in the registration statement and the documents incorporated
by reference therein (each thereof, including the documents incorporated therein
by reference, being herein called a "Preliminary Prospectus Supplement")
relating to the Shares. Except where the context otherwise requires, the
registration statement referred to above, which was declared effective by the
Commission on August 25, 2004, including all documents filed as a part thereof
or incorporated by reference therein, and including any information contained in
a prospectus subsequently filed with the Commission pursuant to Rule 424(b)
under the Act and deemed to be part of the registration statement pursuant to
Rule 430(A) under the Act and also including any registration statement filed
pursuant to Rule 462(b) under the Act, is herein called the "Registration
Statement," and the prospectus included in the Registration Statement, including
all documents incorporated therein by reference, as supplemented by the final
Prospectus Supplement relating to the Shares, in the form filed by the Company
with the Com-
mission pursuant to Rule 424(b) under the Act on or before the second business
day after the date hereof (or such earlier time as may be required under the
Act) is herein called the "Prospectus." Any reference herein to the terms
"amend", "amendment", or "supplement" with respect to the Registration
Statement, the Prospectus or any Preliminary Prospectus Supplement shall be
deemed to refer to and include the filing after the execution hereof of any
document with the Commission deemed to be incorporated by reference therein. For
purposes of this Agreement, all references to the Registration Statement or the
Prospectus or to any amendment or supplement thereto shall be deemed to include
any copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX"). As used herein, "business
day" shall mean a day on which the New York Stock Exchange is open for trading.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
respective number of Firm Shares as set forth opposite the name of such
Underwriter in Schedule A attached hereto, subject to adjustment in accordance
with Section 8 hereof, in each case at a purchase price of $29.687 per Share.
The Company is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the
effective date of the Registration Statement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
In addition, the Company hereby grants to the several
Underwriters the option to purchase, and upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company, ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company for the Firm Shares. This option may be exercised by UBS ("UBS")
on behalf of the several Underwriters at any time and from time to time on or
before the thirtieth day following the date hereof, by written notice to the
Company. Such notice shall set forth the aggregate number of Additional Shares
as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the "additional time of purchase"); provided, however, that the additional
time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day after the date on which the
option shall have been exercised nor later than the tenth business day after the
date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares),
subject to adjustment in accordance with Section 8 hereof.
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2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of The Depository Trust Company (DTC) for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on November 24, 2004 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
8 hereof). The time at which such payment and delivery are to be made is
hereinafter sometimes called "the time of purchase." Electronic transfer of the
Firm Shares shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with
respect to the purchase of the Shares shall be made at the offices of Xxxxxx
Xxxxxx & Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M.,
New York City time, on the date of the closing of the purchase of the Firm
Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) the Registration Statement has been declared effective
under the Act; no stop order of the Commission preventing or
suspending the use of any Preliminary Prospectus Supplement or the
effectiveness of the Registration Statement has been issued, and no
proceedings for such purpose have been instituted or, to the
Company's knowledge, are contemplated by the Commission; each
Preliminary Prospectus Supplement, at the time of filing thereof,
complied in all material respects to the requirements of the Act and
the last Preliminary Prospectus Supplement distributed in connection
with the offering of the Shares did not, as of its date, and does
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; the Prospectus, including a final
Prospectus Supplement, has been or will be prepared and will be
filed pursuant to Section 424(b) of the Act on or before the second
business day following the date of this Agreement; the Prospectus
and any amendment or supplement thereto, on the date of filing
thereof with the Commission pursuant to Rule 424(b) and at the time
of purchase and, if applicable, at the additional time of purchase,
did not or will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; the Registration Statement complied
when it became effective, complies and will comply, at the time of
purchase and, if applicable, any additional time of purchase, in all
material respects with the requirements of the Act and the
Prospectus will comply, as of its date and at the time of purchase
and, if applicable, any additional times of purchase, in all
material respects with the requirements of the Act and any statutes,
regulations, contracts or other documents that
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are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
have been and will be so described or filed; the conditions to the
use of Form S-3 have been satisfied; the Registration Statement did
not when it became effective, does not and will not, at the time of
purchase and, if applicable, any additional time of purchase,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
Company makes no warranty or representation with respect to any
statement contained in the Preliminary Prospectus Supplement, the
Registration Statement or the Prospectus in reliance upon and in
conformity with information furnished in writing by or on behalf of
such Underwriter through you to the Company expressly for use in the
Preliminary Prospectus Supplement, the Registration Statement or the
Prospectus; the documents incorporated by reference in the
Preliminary Prospectus Supplement, the Registration Statement and
the Prospectus or any amendment or supplement thereto, at the time
they became or become effective or were or are filed with the
Commission, complied or will comply in all material respects with
the requirements of the Exchange Act and did not or will not contain
an untrue statement of a material fact or omit or will omit to state
a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; and the Company has not distributed
and will not distribute any offering material in connection with the
offering or sale of the Shares other than the Registration
Statement, the Preliminary Prospectus Supplement and the Prospectus;
(b) as of the date of this Agreement, the Company has an
authorized capitalization as set forth under the heading "Actual" in
the section of the Registration Statement and the Prospectus
entitled "Capitalization" and, as of the time of purchase and the
additional time of purchase, as the case may be, the Company shall
have an authorized capitalization as set forth under the heading "As
Adjusted" in the section of the Registration Statement and the
Prospectus entitled "Capitalization"; all of the issued and
outstanding shares of capital stock, including the Common Stock, of
the Company have been duly authorized and validly issued and are
fully paid and non-assessable, have been issued in compliance with
all federal and state securities laws and were not issued in
violation of any preemptive right, resale right, right of first
refusal or similar right;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with full corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement and the Prospectus;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be
so qualified and in good standing would not, individually or in the
aggregate, have a material adverse effect on the business,
properties, financial condition, results of operation or prospects
of the Company and the Subsidiaries (as hereinafter defined) taken
as a whole (a "Material Adverse Effect");
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(e) the Company has no "significant subsidiaries" (as defined
in the Exchange Act) other than those set forth on Schedule B
attached hereto, assuming 2003 as the most recently completed fiscal
year (collectively, the "Subsidiaries"); other than the capital
stock of the Subsidiaries, the Company does 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
that is a "significant subsidiary" (as defined in the Exchange Act,
and the rules and regulations thereunder); complete and correct
copies of the certificates of incorporation and the by-laws of the
Company and the Subsidiaries and all amendments thereto have been
delivered to you, and except as set forth in the exhibits to the
Registration Statement no changes therein will be made subsequent to
the date hereof and prior to the time of purchase or, if later, the
additional time of purchase; each Subsidiary has been organized as a
corporation and is validly existing and in good standing (including
without limitation, jurisdictions where such good standing is given
in another form) under the laws of the jurisdiction of its
organization, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus; each Subsidiary is
duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of
its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a
Material Adverse Effect; all of the outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and (except as
otherwise described in this Section 3(e)) are owned (except for
nominal share amounts held by third parties for purposes of
compliance with the applicable laws of the jurisdiction) by the
Company subject to no security interest, other encumbrance or
adverse claims; and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights
to convert any obligation into shares of capital stock or ownership
interests in the Subsidiaries are outstanding;
(f) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein,
will be duly and validly issued, fully paid and non-assessable and
free of statutory and contractual preemptive rights, resale rights,
rights of first refusal and similar rights;
(g) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus and the
certificates for the Shares are in due and proper form;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) (A) neither the Company nor any of the Subsidiaries is in
violation of (nor has any event occurred which with notice, lapse of
time or both would result in any breach of, constitute a default
under or give the holder of any indebtedness (or a person acting on
such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a part
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of such indebtedness under) and (B) the issuance and sale of the
Shares and the consummation of the transactions contemplated hereby
will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which with
notice, lapse of time or both would result in any breach of or
constitute a default under) its (x) respective charter or by-laws,
(y) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or any of
their properties may be bound or affected, and the execution,
delivery and performance of this Agreement, or (z) any federal,
state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or any of the
Subsidiaries, except in the case of clause (y) and, with regard to
clause (A) only, clause (z), any violations, breaches or defaults
which would not have a Material Adverse Effect;
(j) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares or the
consummation by the Company of the transactions contemplated hereby
other than registration of the Shares under the Act, which has been
effected, and any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriters or under the rules and regulations
of the NASD;
(k) except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise,
to cause the Company to issue or sell to it any shares of Common
Stock or shares of any other capital stock or other equity interests
of the Company, (ii) no person has any preemptive rights, resale
rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock or other
equity interests of the Company, and (iii) no person has the right
to act as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Shares, in the case of
each of the foregoing clauses (i), (ii) and (iii), whether as a
result of the filing or effectiveness of the Registration Statement
or the sale of the Shares as contemplated thereby or otherwise; no
person has the right, contractual or otherwise, to cause the Company
to register under the Act any shares of Common Stock or shares of
any other capital stock or other equity interests of the Company, or
to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, whether as a result
of the filing or effectiveness of the Registration Statement or the
sale of the Shares as contemplated thereby or otherwise;
(l) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or
foreign law, regulation or rule, in order to conduct its respective
business, except where the failure to have such licenses,
authorizations, consents and approvals or make such filings would
not have a Material Adverse Effect; neither the Company nor any of
the Subsidiaries is in violation of, or in default under, or has
received notice of any proceedings relating to revocation or
modification of, any such license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or
rule
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or any decree, order or judgment applicable to the Company or any of
the Subsidiaries, except where such violation, default, revocation
or modification would not, individually or in the aggregate, have a
Material Adverse Effect;
(m) all legal or governmental proceedings, affiliate
transactions, off-balance sheet transactions, contracts, licenses,
agreements, leases or documents of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement have been so
described or filed as required;
(n) there are no actions, suits, claims, investigations or
proceedings pending or, to the knowledge of the Company, threatened
or contemplated, to which the Company or any of the Subsidiaries or
any of their respective directors or officers is a party or of which
any of their respective properties is subject at law or in equity,
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency, except any
such action, suit, claim, investigation or proceeding which would
not result in a judgment, decree or order having, individually or in
the aggregate, a Material Adverse Effect or preventing consummation
of the transactions contemplated hereby;
(o) Ernst & Young LLP, whose report on the consolidated
financial statements of the Company and the Subsidiaries is filed
with the Commission as part of the Registration Statement and the
Prospectus or are incorporated by reference therein, are independent
public accountants as required by the Act;
(p) the audited and unaudited financial statements included in
the Registration Statement and the Prospectus, together with the
related notes and schedules thereto, present fairly the consolidated
financial position of the Company and the Subsidiaries as of the
dates indicated and the consolidated results of operations and cash
flows of the Company and the Subsidiaries for the periods specified
and have been prepared in compliance with the requirements of the
Act and in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
otherwise disclosed in the Prospectus; any pro forma financial
statements or data included in the Registration Statement and the
Prospectus comply with the requirements of Regulation S-X of the Act
and the assumptions used in the preparation of such pro forma
financial statements and data are reasonable, the pro forma
adjustments used therein are appropriate to give effect to the
transactions or circumstances described therein and the pro forma
adjustments have been properly applied to the historical amounts in
the compilation of those statements and data; the other financial
and statistical data set forth in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis
consistent with the financial statements and books and records of
the Company; there are no financial statements that are required to
be included in the Registration Statement and the Prospectus that
are not included as required; and; the Company and the Subsidiaries
do not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement and the Prospectus that are
required to be disclosed in such documents;
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(q) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change, or any development
involving a prospective material adverse change, in the business,
properties, management, financial condition or results of operations
of the Company and the Subsidiaries taken as a whole, (ii) any
transaction which is material to the Company and the Subsidiaries
taken as a whole, except transactions in the ordinary course of
business as contemplated by information disclosed in the
Registration Statement and in the Prospectus, (iii) any obligation,
direct or contingent (including any off-balance sheet obligations),
incurred by the Company or the Subsidiaries, which is material to
the Company and the Subsidiaries taken as a whole, except
obligations incurred in the ordinary course of business as
contemplated by information disclosed in the Registration Statement
and in the Prospectus, (iv) any change in the capital stock, except
due to the exercise of stock options, or outstanding indebtedness of
the Company or the Subsidiaries or (v) any dividend or distribution
of any kind declared, paid or made on the capital stock of the
Company;
(r) the Company has obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement"), in the form set
forth as Exhibit A hereto, of each person named in Schedule C
hereto;
(s) neither the Company nor any of the Subsidiaries is and,
after giving effect to the offering and sale of the Shares, will be
an "investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(t) the Company and each of the Subsidiaries has good and
marketable title to all property (real and personal) described the
Registration Statement and in the Prospectus as being owned by each
of them, free and clear of all liens, claims, security interests or
other encumbrances that may result in a Material Adverse Effect,
except such as are described in the Prospectus or Registration
Statement or are not material to the business of the Company and the
Subsidiaries, taken as a whole; all the property described in the
Registration Statement and the Prospectus as being held under lease
by the Company or a Subsidiary is held thereby under valid,
subsisting and enforceable leases, with such exceptions as are
described in the Prospectus or the Registration Statement or are not
material to the business of the Company and the Subsidiaries, taken
as a whole;
(u) except as described in the Registration Statement and the
Prospectus, the Company and the Subsidiaries own, or have obtained
valid and enforceable licenses for, or other rights to use, the
inventions, patent applications, patents, trademarks (both
registered and unregistered), tradenames, copyrights, trade secrets
and other proprietary information described in the Registration
Statement and the Prospectus as being owned or licensed by them or
which the Company believes are necessary for the conduct of their
respective businesses, except where the failure to own, license or
have such rights would not, individually or in the aggregate, have a
Material Adverse Effect (collectively, "Intellectual Property");
except as described in the Registration Statement and the
Prospectus, (i) there are no third parties who have or, to the
Company's knowledge, will be able to establish rights to
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any Intellectual Property, except for the ownership rights of the
owners of the Intellectual Property which is licensed to the
Company; (ii) there is no infringement by third parties of any
Intellectual Property; (iii) there is no pending or threatened
action, suit, proceeding or claim by others challenging the
Company's rights in or to any Intellectual Property, and the Company
is unaware of any facts which would form a reasonable basis for any
such claim; (iv) there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of
any Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (v) there is
no pending or threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (vi) to the Company's knowledge
after due inquiry, there is no patent or patent application that
contains claims that interfere with the issued or pending claims of
any of the Intellectual Property; and (vii) to the Company's
knowledge after due inquiry, there is no prior art that may render
any patent application owned by the Company of the Intellectual
Property unpatentable that has not been disclosed to the U.S. Patent
and Trademark Office;
(v) neither the Company nor any of the Subsidiaries is engaged
in any unfair labor practice that would have a Material Adverse
Effect on the Company and the Subsidiaries, taken as a whole; except
for matters which would not, individually or in the aggregate, have
a Material Adverse Effect on the Company and the Subsidiaries taken
as a whole, (i) there is (A) no unfair labor practice complaint
pending or, to the Company's knowledge, threatened against the
Company or any of the Subsidiaries before the National Labor
Relations Board, and no grievance or arbitration proceeding arising
out of or under collective bargaining agreements is pending or
threatened, (B) no strike, labor dispute, slowdown or stoppage
pending or, to the Company's knowledge, threatened against the
Company or any of the Subsidiaries and (C) no union representation
dispute currently existing concerning the employees of the Company
or any of the Subsidiaries, and (ii) to the Company's knowledge, (A)
no union organizing activities are currently taking place concerning
the employees of the Company or any of the Subsidiaries and (B)
there has been no violation of any federal, state, local or foreign
law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the
Employee Retirement Income Security Act of 1974 ("ERISA") or the
rules and regulations promulgated thereunder concerning the
employees of the Company or any of the Subsidiaries;
(w) except as otherwise set forth in the Prospectus, the
Company and the Subsidiaries and their properties, assets and
operations are in compliance with, and hold all permits,
authorizations and approvals required under, Environmental Laws (as
defined below), except to the extent that failure to so comply or to
hold such permits, authorizations or approvals would not,
individually or in the aggregate, have a Material Adverse Effect;
except as otherwise set forth in the Prospectus, there are no past,
present or, to the Company's knowledge, reasonably anticipated
future events, conditions, circumstances, activities, practices,
actions, omissions or plans that could reasonably be expected to
give rise to any costs or liabilities to the Company or the
Subsidiaries under, or to interfere with or prevent compliance by
the Company or the Subsidiaries with, Environmental Laws, except to
the
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extent as such could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; except
as otherwise set forth in the Prospectus and except as would not,
individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of the Subsidiaries (i) is the subject
of any investigation, (ii) has received any notice or claim, (iii)
is a party to or affected by any pending or threatened action, suit
or proceeding, (iv) is bound by any judgment, decree or order or (v)
has entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or any actual or alleged release
or threatened release or cleanup at any location of any Hazardous
Materials (as defined below) (as used herein, "Environmental Law"
means any federal, state, local or foreign law, statute, ordinance,
rule, regulation, order, decree, judgment, injunction, permit,
license, authorization or other binding requirement, or common law,
relating to health, safety or the protection, cleanup or restoration
of the environment or natural resources, including those relating to
the distribution, processing, generation, treatment, storage,
disposal, transportation, other handling or release or threatened
release of Hazardous Materials, and "Hazardous Materials" means any
material (including, without limitation, pollutants, contaminants,
hazardous or toxic substances or wastes) that is regulated by or may
give rise to liability under any Environmental Law);
(x) in the ordinary course of its respective businesses, the
Company and each of the Subsidiaries conducts a periodic review of
the effect of the Environmental Laws on its business, operations and
properties, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for cleanup, closure of
properties or compliance with the Environmental Laws or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties);
(y) all material tax returns required to be filed by the
Company and each of the Subsidiaries have been filed, and all
material taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest,
additions to tax or penalties applicable thereto due or claimed to
be due from such entities have been paid, other than those being
contested in good faith and for which adequate reserves have been
provided;
(z) other than as disclosed in the Prospectus, the Company and
each of the Subsidiaries maintains insurance covering its
properties, operations, personnel and businesses as the Company
deems adequate and is available and as previously disclosed to the
Underwriters; such insurance insures against such losses and risks
to an extent which is adequate in accordance with customary industry
practice to protect the Company and the Subsidiaries and their
businesses; all such insurance is fully in force on the date hereof
and will be fully in force at the time of purchase and any
additional time of purchase;
(aa) neither the Company nor any of the Subsidiaries has
sustained since the date of the last audited financial statements
included in the Registration Statement and the Prospectus any loss
or interference with its respective business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or
decree;
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(bb) the Company has not sent or received any communication
regarding termination of, or intent not to renew, any of the
contracts or agreements referred to or described in, or filed as an
exhibit to, the Registration Statement, and no such termination or
non-renewal has been threatened by the Company or, to the Company's
knowledge, any other party to any such contract or agreement;
(cc) the Company and each of the Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect
to any differences;
(dd) the Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 and
15d-14 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating
to the Company, including its consolidated subsidiaries, is made
known to the Company's Chief Executive Officer and its Chief
Financial Officer by others within those entities, and such
disclosure controls and procedures are effective to perform the
functions for which they were established; the Company's auditors
and the Audit Committee of the Board of Directors have been advised
of: (i) any significant deficiencies in the design or operation of
internal controls which could adversely affect the Company's ability
to record, process, summarize, and report financial data; and (ii)
any fraud, whether or not material, that involves management or
other employees who have a role in the Company's internal controls;
any material weaknesses in internal controls have been identified
for the Company's auditors; and since the date of the most recent
evaluation of such disclosure controls and procedures, there have
been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and
material weaknesses;
(ee) the Company has provided you true, correct, and complete
copies of all documentation pertaining to any extension of credit in
the form of a personal loan made, directly or indirectly, by the
Company to any director or executive officer of the Company, or to
any family member or affiliate of any director or executive officer
of the Company; and since July 30, 2002, the Company has not,
directly or indirectly, including through any subsidiary: (i)
extended credit, arranged to extend credit, or renewed any extension
of credit, in the form of a personal loan, to or for any director or
executive officer of the Company, or to or for any family member or
affiliate of any director or executive officer of the Company; or
(ii) made any material modification, including any renewal thereof,
to any term of any personal loan to any director or executive
officer of the Company, or any family member or affiliate of any
director or executive officer, which loan was outstanding on July
30, 2002;
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(ff) any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate,
and the Company has obtained the written consent to the use of such
data from such sources to the extent required;
(gg) neither the Company nor any of the Subsidiaries nor, to
the Company's knowledge, any employee or agent of the Company or the
Subsidiaries has made any payment of funds of the Company or the
Subsidiaries or received or retained any funds in violation of any
law, rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the Registration
Statement or the Prospectus;
(hh) neither the Company nor any of the Subsidiaries nor any
of their respective directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or
which has constituted or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(ii) to the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's
officers, directors or 5% or greater securityholders, except as set
forth in the Registration Statement and the Prospectus;
(jj) the Company (a) has a class of securities registered
pursuant to Section 12(b) of the Exchange Act, (b) has been subject
to the requirements of Section 12 of the Exchange Act and has filed
all the material required to be filed pursuant to Section 13, 14 or
15(d) for a period of at least 36 calendar months immediately
preceding the date hereof and (c) has filed in a timely manner all
reports required to be filed during the 12 calendar months and any
portion of a month immediately preceding the date hereof and, if the
Company has used (during the 12 calendar months and any portion of a
month immediately preceding the date hereof) Rule 12b-25(b) under
the Exchange Act with respect to a report or a portion of a report,
that report or portion thereof has actually been filed within the
time period prescribed by the rule;
(kk) neither the Company nor any of its consolidated or
unconsolidated subsidiaries have, since the end of the last fiscal
year for which certified financial statements of the Company and its
consolidated subsidiaries were included in a report filed pursuant
to Section 13(a) or 15(d) of the Exchange Act (a) failed to pay any
dividend or sinking fund installment on preferred stock, or (b)
defaulted (i) on any installment or installments on indebtedness for
borrowed money, or (ii) on any rental on one or more long-term
leases, which defaults in the aggregate are material to the
financial position of the registrant and its consolidated and
unconsolidated subsidiaries, taken as a whole; and
(ll) the aggregate market value of the voting stock held by
non-affiliates of the Company is $150 million or more, or
alternatively, the aggregate market value of the voting stock held
by non-affiliates of the Company is $100 million or more and the
Company has had an annual trading volume of such stock of three
million shares or more; and for purposes
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of this Section, "aggregate market value" shall be computed by use
of the price at which the stock was last sold or the average of the
bid and asked prices of such stock, as of a date within 60 days
prior to the date hereof; and "annual trading volume" shall be the
volume of shares traded in any continuous 12-month period ended
within 60 days prior to the date hereof.
In addition, any certificate signed by any officer of the
Company or any of the Subsidiaries and delivered to the Underwriters or counsel
for the Underwriters in connection with the offering of the Shares shall be
deemed to be a representation and warranty by the Company or Subsidiary, as the
case may be, as to matters covered thereby, to each Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and
sale under the securities or blue sky laws of such states or other
jurisdictions as you may designate, including, without limitation,
jurisdictions outside of the United States, and to maintain such
qualifications in effect so long as you may reasonably request for
the distribution of the Shares; provided that the Company shall not
be required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such jurisdiction where it
is not now so qualified (except service of process with respect to
the offering and sale of the Shares); and to promptly advise you of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose to which it is aware;
(b) to prepare the Prospectus in a form approved by the
Underwriters and file such Prospectus with the Commission pursuant
to Rule 424(b) under the Act, on or before the second business day
following the date of this Agreement (or such earlier time as may be
required by the Act) and to furnish promptly (and, with respect to
the initial delivery of such Prospectus, not later than 10:00 a.m.
(New York City time) on or before the second business day following
the date of this Agreement or on such other day as the parties may
mutually agree) to the Underwriters, as many copies of the
Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto) as
the Underwriters may request for the purposes contemplated by the
Act; in case any Underwriter is required to deliver a prospectus
within the nine-month period referred to in Section 10(a)(3) of the
Act in connection with the sale of the Shares, the Company will
prepare, at its expense, promptly upon request and at its cost such
amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or any post-effective
amendment thereto to be declared effective before the offering of
the Shares may commence, the Company will use its best efforts to
cause the Registration Statement or such post-effective amendment to
become effective as soon as possible and the Company will advise you
promptly and, if requested by you, will confirm such advice in
writing, (i) when the Registration Statement and any such
post-effective
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amendment thereto has become effective, and (ii) if Rule 430A under
the Act is used, when the Prospectus is filed with the Commission
pursuant to Rule 424(b) under the Act (which the Company agrees to
file in a timely manner under such Rule);
(d) to advise you promptly, confirming such advice in writing,
of (i) the receipt of any comments from the Commission relating to
the Registration Statement, any amendment thereto, the Prospectus or
any amendment or supplement thereto, any filing of the Company under
the Act or the Exchange Act, (ii) any request by the Commission for
amendments or supplements to the Registration Statement or the
Prospectus or for additional information with respect thereto, or of
notice of institution of proceedings for, or (iii) the entry of a
stop order, suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
Preliminary Prospectus Supplement or the Prospectus and, if the
Commission should enter such an order, to use its reasonable best
efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, including
by filing any documents that would be incorporated therein by
reference, and to provide you and Underwriters' counsel copies of
any such documents for review and comment a reasonable amount of
time under the circumstances prior to any proposed filing and to
file no such amendment or supplement to which you shall object in
writing, in each case for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares,
which is incorporated by reference in the Registration Statement or
the Prospectus;
(e) subject to Section 4(d) hereof, to file promptly all
reports and any definitive proxy or information statement required
to be filed by the Company with the Commission in order to comply
with the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; to provide you
with a copy of such reports and statements and other documents to be
filed by the Company pursuant to Section 13, 14 or 15(d) of the
Exchange Act during such period a reasonable amount of time under
the circumstances prior to any proposed filing, and to promptly
notify you of such filing;
(f) if necessary, to file a registration statement pursuant to
Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a
prospectus relating to the Shares is required to be delivered under
the Act which, in the judgment of the Company, would require the
making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they are made,
not misleading, and, during such time, subject to Section 4(d)
hereof, to prepare and furnish, at the Company's expense, to the
Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change;
-14-
(h) to make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which need
not be audited and which will satisfy the provisions of Section
11(a) of the Act) covering a period of twelve months beginning after
the effective date of the Registration Statement (as defined in Rule
158(c) of the Act) as soon as is reasonably practicable after the
termination of such twelve-month period but not later than the
forty-fifth (45th) day following the end of the fiscal quarter first
occurring after the first anniversary of the effective date of the
registration statement;
(i) to furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a
consolidated balance sheet and statements of income, shareholders'
equity and cash flow of the Company and the Subsidiaries for such
fiscal year, accompanied by a copy of the certificate or report
thereon of nationally recognized independent certified public
accountants);
(j) to furnish to you three (3) copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient copies of the
foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(k) to furnish to you promptly and, upon request, to each of
the other Underwriters for a period of four years from the date of
this Agreement (i) copies of any reports or other communications
which the Company shall send to its stockholders, (ii) copies of all
documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed, and (iii)
such other information as you may reasonably request regarding the
Company or the Subsidiaries;
(l) to furnish to you as early as practicable prior to the
time of purchase and any additional time of purchase, as the case
may be, but not later than two business days prior thereto, a copy
of the latest available unaudited interim and monthly consolidated
financial statements, if any, of the Company and the Subsidiaries
for any periods subsequent to the periods covered by the financial
statements appearing (or incorporated by reference) in the
Registration Statement and the Prospectus, which have been read by
the Company's independent certified public accountants, as stated in
their letter to be furnished pursuant to Section 6(b) hereof;
(m) to apply the net proceeds from the sale of the Shares in
the manner set forth under the heading "Use of Proceeds" in the
Prospectus;
(n) to comply with all the provisions of any undertakings
contained in the Registration Statement;
(o) to pay all costs, expenses, fees and taxes in connection
with (i) the preparation and filing of the Registration Statement,
each Preliminary Prospectus Supplement, the Prospectus, and any
amendments or supplements thereto, and the printing and furnishing
of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and
-15-
shipment), (ii) the registration, issue, sale and delivery of the
Shares including any stock or transfer taxes and stamp or similar
duties payable upon the sale, issuance or delivery of the Shares to
the Underwriters, (iii) the producing, word processing and/or
printing of this Agreement, any Agreement Among Underwriters, any
dealer agreements and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of
copies of each thereof to the Underwriters and (except closing
documents) to dealers (including costs of mailing and shipment),
(iv) the qualification of the Shares for offering and sale under
state or foreign laws and the determination of their eligibility for
investment under state or foreign law as aforesaid (including the
reasonable legal fees and filing fees and other disbursements of
counsel for the Underwriters) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Shares on any
securities exchange or qualification of the Shares for listing on
the New York Stock Exchange and any registration thereof under the
Exchange Act, (vi) any filing for review of the public offering of
the Shares by the NASD, including the legal fees and filing fees and
other disbursements of counsel to the Underwriters, (vii) the fees
and disbursements of any transfer agent or registrar for the Shares,
(viii) the costs and expenses of the Company relating to
presentations or meetings undertaken in connection with the
marketing of the offering and sale of the Shares to prospective
investors and the Underwriters' sales forces, including, without
limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel, lodging and
other expenses incurred by the officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection
with the road show, (ix) preparation and delivery of certificates
representing the Shares, and (x) the performance of the Company's
other obligations hereunder (including, without limitation, the fees
and expenses of the Company's counsel and the Company's independent
accountants); it is understood that except as provided in this
Section 4(o) and Sections 5 and 9 hereof, the Underwriters will pay
all of their costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any of the
Shares by them and advertising in connection with any offers they
make;
(p) not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, any
Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase
Common Stock or any other securities of the Company that are
substantially similar to Common Stock, or file or cause to be
declared effective a registration statement under the Act relating
to the offer and sale of any shares of Common Stock or securities
convertible into or exercisable or exchangeable for Common Stock or
other rights to purchase Common Stock or any other securities of the
Company that are substantially similar to Common Stock for a period
of 90 days after the date hereof (the "Lock-Up Period"), without the
prior written consent of UBS, except for (i) the registration of the
Shares and the sales to the Underwriters pursuant to this Agreement,
(ii) issuances of Common Stock pursuant to employee benefit plans,
qualified stock option plans and other employee compensation plans
existing on the date hereof, such issued Common Stock not to be
disposed of by any person listed in Schedule C hereto prior to the
expiration of the Lock-Up Period, except as specifically permitted
by the applicable Lock-Up Agreement, or pursu-
-16-
ant to the exercise of options or warrants disclosed as outstanding
in the Registration Statement and the Prospectus, and (iii) the
issuance of employee stock options not exercisable during the
Lock-Up Period pursuant to stock option plans described in the
Registration Statement and the Prospectus, provided, however, that
such 90-day period shall be extended by up to 17 days if UBS
Securities LLC notifies the Company prior to the expiration of such
90-day period that such extension is necessary in order to permit
any Underwriter to publish a research report in compliance with New
York Stock Exchange Rule 472(f)(4) and NASD Conduct Rule 2711(f)(4);
(q) to use its best efforts to cause the Shares to be listed
and to maintain the listing of the Common Stock on the New York
Stock Exchange; and
(r) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the
Common Stock.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the second paragraph of Section 7 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(o) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof, at
the time of purchase and, if applicable, at the additional time of purchase, the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, an opinion
of Xxxxxxx Coie LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time
of purchase, as the case may be, with reproduced copies for each of
the other Underwriters and in form and substance satisfactory to
Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, stating
that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement and
the Prospectus, to execute and deliver this Agreement and to
issue, sell and deliver the Shares as contemplated herein;
(ii) each of the Subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of its respective jurisdiction of incorporation
(including, without limitation, jurisdictions where such good
-17-
standing is given in another form), with full corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company;
(iv) the Shares have been duly authorized and, when
issued, delivered and paid for by the Underwriters pursuant to
this Agreement, will be validly issued, fully paid and
non-assessable;
(v) the Company has an authorized capitalization as set
forth in the Registration Statement and the Prospectus; to the
knowledge of such counsel, all of the issued and outstanding
shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and
non-assessable and are free of statutory preemptive rights,
contractual preemptive rights, resale rights, rights of first
refusal and similar rights; the Shares are free of statutory
preemptive rights and, to such counsel's knowledge,
contractual preemptive rights, resale rights, rights of first
refusal and similar rights; the certificates for the Shares
are in due and proper form under Delaware law;
(vi) to the knowledge of such counsel, all of the
outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and, except as otherwise stated
in the Registration Statement and the Prospectus, are owned by
the Company (except for nominal share amounts held by third
parties for purposes of compliance with the applicable laws of
the jurisdiction) in each case subject to no security
interest, other encumbrance or adverse claim; and to such
counsel's knowledge, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock
or ownership interests in the Subsidiaries are outstanding;
(vii) the capital stock of the Company, including the
Shares, conforms in all material respects to the description
thereof in all material respects incorporated by reference
into the Registration Statement and the Prospectus;
(viii) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial and statistical data contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act; and the
conditions to the use of Form S-3 have been satisfied; the
documents incorporated by reference in the Registration
Statement and the Prospectus, at the time they became
effective or were filed with the Commission, complied as to
form in all material respects with the requirements of the
Exchange Act (except as to the financial statements and
-18-
schedules and other financial and statistical data contained
therein, as to which such counsel need express no opinion);
(ix) the Registration Statement has become effective
under the Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened
under the Act and any required filing of the Prospectus and
any supplement thereto pursuant to Rule 424 under the Act has
been made in the manner and within the time period required by
such Rule 424;
(x) no approval, authorization, consent or order of or
filing with any federal, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the issuance and sale of the
Shares and consummation by the Company of the transaction
contemplated hereby other than registration of the Shares
under the Act (except such counsel need express no opinion as
to any necessary qualification under the state securities or
blue sky laws of the various jurisdictions in which the Shares
are being offered by the Underwriters);
(xi) the execution, delivery and performance of this
Agreement by the Company, the issuance and sale of the Shares
by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not conflict
with, result in any breach or violation of or constitute a
default under (nor constitute any event which with notice,
lapse of time or both would result in any breach of or
constitute a default under) the charter or by-laws of the
Company or any of the Subsidiaries, or any indenture,
mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound or
affected, or any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable
to the Company or any of the Subsidiaries;
(xii) neither the Company nor any of the Subsidiaries is
in breach or violation of or in default under (nor has any
event occurred which with notice, lapse of time, or both would
result in any breach of, or constitute a default under or give
the holder of any indebtedness (or a person acting on such
holder's behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) its respective (x) charter or by-laws, or, (y) to the
knowledge of such counsel, any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or affected, or any
federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any
of the Subsidiaries, which breach, violation or default would
have, in the case of clause (y), a Material Adverse Effect;
-19-
(xiii) to such counsel's knowledge, there are no
affiliate transactions, off-balance sheet transactions,
contracts, licenses, agreements, leases or documents of a
character which are required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which have not been so
described or filed;
(xiv) to such counsel's knowledge, there are no private
or governmental actions, suits, claims, investigations or
proceedings pending, threatened or contemplated to which the
Company or any of the Subsidiaries or any of their respective
directors or officers is a party or to which any of their
respective properties is subject at law or in equity, before
or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency which
are required to be described in the Registration Statement or
the Prospectus but are not so described;
(xv) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment
company" or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act;
(xvi) the information in the Registration Statement and
the Prospectus under the headings "Business -- Environmental
Matters," "Business -- Legal Proceedings," "Description of
Capital Stock," "Description of the Debt Securities,"
"Description of Convertible Debt Securities" and "Description
of the Stock Purchase Contracts and the Stock Purchase Units,"
insofar as such statements constitute a summary of documents
or matters of law, are accurate in all material respects and
present fairly the information required to be shown; and
(xvii) no person has the right, pursuant to the terms of
any contract, agreement or other instrument described in or
filed as an exhibit to the Registration Statement or otherwise
known to such counsel, to cause the Company to register under
the Act any shares of Common Stock or shares of any other
capital stock or other equity interest of the Company, or to
include any such shares or interest in the Registration
Statement or the offering contemplated thereby, whether as a
result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or
otherwise.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company
and representatives of the Underwriters at which the contents of the
Registration Statement and the Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as and to the extent stated in subparagraphs
(v), (vii) and (xvi) above), on the basis of the foregoing nothing has come to
the attention of such counsel that causes them to believe that the Registration
Statement or any amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement
-20-
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus or any supplement thereto at the date of such Prospectus or such
supplement, and at the time of purchase or the additional time of purchase, as
the case may be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no opinion
with respect to the financial statements and schedules and other financial and
statistical data included in the Registration Statement or the Prospectus).
(b) You shall have received (i) from Ernst & Young LLP letters
dated, respectively, the date of this Agreement, the time of
purchase and, if applicable, the additional time of purchase, and
addressed to the Underwriters (with reproduced copies for each of
the Underwriters), and (ii) from the Vice President, Chief
Financial Officer, Secretary and Treasurer and the Corporate
Controller of the Company, letters dated, respectively, the date of
this Agreement, the time of purchase and, if applicable, the
additional time of purchase, and addressed to the Underwriters (with
reproduced copies for each of the Underwriters), in each case, in
the forms heretofore approved by UBS.
(c) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable
opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the
Underwriters, dated the time of purchase or the additional time of
purchase, as the case may be, as to the matters referred to in
subparagraphs (iii), (iv), (vii) (with respect to the Shares only),
(ix), (x) and the last subparagraph of paragraph (a) of this Section
6.
(d) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus, including documents deemed
to be incorporated by reference therein, shall have been filed to
which you object in writing.
(e) All filings with the Commission required by Rule 424 under
the Act to have been filed by the time of purchase or the additional
time of purchase, as the case may be, shall have been made within
the applicable time period prescribed for such filing by Rule 424.
(f) Prior to the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iii) the Prospectus
and all amendments or supplements thereto shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they are
made, not misleading.
(g) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, and other than as referred to in the Registration Statement and
the Prospectus, no material adverse change or development involving
a prospective material adverse change in the stockholders' equity,
business, prospects, properties, management, financial condition or
results of operations of the Company and the Subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary
course of business, shall occur or become known.
-21-
(h) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you
a certificate of its Chief Executive Officer and its Chief
Financial Officer to the form attached as Exhibit B hereto.
(i) You shall have received signed Lock-up Agreements
referred to in Section 3(r) hereof.
(j) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness
of any statement in the Registration Statement and the
Prospectus as of the time of purchase and, if applicable, the
additional time of purchase, as you may reasonably request.
(k) The Shares shall have been approved for listing on
the New York Exchange, subject only to notice of issuance at
or prior to the time of purchase or the additional time of
purchase, as the case may be.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective when the parties hereto have executed and delivered this
Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of UBS or any group of
Underwriters (which may include UBS) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares, if (x) since the time of execution of
this Agreement or the earlier respective dates as of which information is given
in the Registration Statement and the Prospectus (in each case, other than as
referred to in the Registration Statement and the Prospectus), there has been
any material adverse change or any development involving a prospective material
adverse change in the stockholders' equity, business, prospects, properties,
management, financial condition or results of operations of the Company and the
Subsidiaries taken as a whole, which would, in UBS' judgment or in the judgment
of such group of Underwriters, make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares on the terms and in the
manner contemplated in the Registration Statement and the Prospectus, or (y)
there shall have occurred: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the NASDAQ; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war; or (v) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in UBS' judgment or in the judgment of such
group of Underwriters makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and the Prospectus, or (z) there
shall have occurred any downgrading, or any notice shall have been given or made
of (i) any intended or potential downgrading or (ii) any review or possible
change that does not indicate an affirmation or improvement, in the rating
accorded any securities of or guaranteed by
-22-
the Company or any Subsidiary by any "nationally recognized statistical rating
organization," as that term is defined in Rule 436(g)(2) under the Act.
If UBS or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company and each other Underwriter
shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply with any of the terms of this Agreement, the
Company shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4(o), 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6
and 7 hereof, if any Underwriter shall default in its obligation to take up and
pay for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 6 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters shall take up and
pay for (in addition to the aggregate number of Firm Shares they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriters in
such amount or amounts as you may designate with the consent of each Underwriter
so designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Firm Shares hereunder unless all of the Firm Shares
are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Company or selected by the Company with your
approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with like effect as
if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Firm Shares which all Underwriters
-23-
agreed to purchase hereunder, and if neither the non-defaulting Underwriters nor
the Company shall make arrangements within the five business day period stated
above for the purchase of all the Firm Shares which the defaulting Underwriter
or Underwriters agreed to purchase hereunder, this Agreement shall terminate
without further act or deed and without any liability on the part of the Company
to any non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company. Nothing in this paragraph, and no
action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any
person who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost
of investigation) which, jointly or severally, any such Underwriter
or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or
in a Prospectus (the term Prospectus for the purpose of this Section
9 being deemed to include any Preliminary Prospectus Supplement, the
Prospectus Supplement and the Prospectus as amended or supplemented
by the Company), or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated in
either such Registration Statement or such Prospectus or necessary
to make the statements made therein not misleading, except insofar
as any such loss, damage, expense, liability or claim arises out of
or is based upon any untrue statement or alleged untrue statement of
a material fact contained in and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of
such Underwriter through you to the Company expressly for use in
such Registration Statement or such Prospectus or arises out of or
is based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated in
such Registration Statement or such Prospectus or necessary to make
such information not misleading; provided, however, that the
indemnity agreement contained in this subsection (a) with respect to
any Preliminary Prospectus Supplement or amended Preliminary
Prospectus Supplement shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such loss, damage,
expense, liability or claim purchased the Shares which is the
subject thereof if the Prospectus corrected any such alleged untrue
statement or omission and if such Underwriter failed to send or give
a copy of the Prospectus to such person at or prior to the written
confirmation of the sale of such Shares to such person, unless the
failure is the result of noncompliance by the Company with paragraph
(g) of Section 4 hereof.
If any action, suit or proceeding (each, a "Proceeding") is
brought against an Underwriter or any such person in respect of
which indemnity may be sought against the Company
-24-
pursuant to the foregoing paragraph, such Underwriter or such person
shall promptly notify the Company in writing of the institution of
such Proceeding and the Company shall assume the defense of such
Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and
expenses; provided, however, that the omission to so notify the
Company shall not relieve the Company from any liability that the
Company may have to any Underwriter or any such person or otherwise,
except for liability arising solely due to the failure of the
Underwriters or such other person to so notify the Company. Such
Underwriter or such person shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or of such
person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense
of such Proceeding or the Company shall not have, within a
reasonable period of time in light of the circumstances, employed
counsel to defend such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or
in conflict with those available to the Company (in which case the
Company shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the Company
and paid as incurred (it being understood, however, that the Company
shall not be liable for the fees and expenses of more than one
separate counsel (in addition to any local counsel) in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such
Proceeding and such fees and expenses shall be reasonable under the
circumstances). The Company shall not be liable for any settlement
of any Proceeding effected without its written consent but if
settled with the written consent of the Company, the Company agrees
to indemnify and hold harmless any Underwriter and any such person
from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement
of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have fully reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention
to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding
and does not include an admission of fault, culpability or a failure
to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, and any
person who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability
-25-
or claim (including the reasonable cost of investigation) which,
jointly or severally, the Company or any such person may incur under
the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of
such Underwriter through you to the Company expressly for use in the
Registration Statement (or in the Registration Statement as amended
by any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or
such Prospectus or necessary to make such information not
misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company or such
person shall promptly notify such Underwriter in writing of the
institution of such Proceeding and such Underwriter shall assume the
defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all
fees and expenses; provided, however, that the omission to so notify
such Underwriter shall not relieve such Underwriter from any
liability which such Underwriter may have to the Company or any such
person or otherwise, except for liability arising solely due to the
failure of the Company or such other person to so notify the
Underwriters. The Company or such person shall have the right to
employ its own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of the Company or such
person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the
defense of such Proceeding or such Underwriter shall not have,
within a reasonable period of time in light of the circumstances,
employed counsel to defend such Proceeding or such indemnified party
or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or
additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right
to direct the defense of such Proceeding on behalf of the
indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be
borne by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the fees and
expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in
the same jurisdiction representing the indemnified parties who are
parties to such Proceeding and such fees and expenses shall be
reasonable under the circumstances). No Underwriter shall be liable
for any settlement of any such Proceeding effected without the
written consent of such Underwriter but if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify
and hold harmless the Company and any such person from and against
any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that
it shall be liable for any settlement of any Proceeding effected
without its written consent if (i)
-26-
such settlement is entered into more than 60 business days after
receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention
to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of
this Section 9 or insufficient to hold an indemnified party harmless
in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party
as a result of such losses, damages, expenses, liabilities or claims
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in
the same respective proportions as the total proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters,
bear to the aggregate public offering price of the Shares. The
relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission relates
to information supplied by the Company or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this
subsection shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(d) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable
considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter and
distributed to the public were offered to the public ex-
-27-
ceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9
are several in proportion to their respective underwriting
commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of
the Company contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf of
any Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, or by or on behalf of the
Company, its directors or officers or any person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Company
and each Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the
Company, against any of the Company's officers or directors in
connection with the issuance and sale of the Shares, or in
connection with the Registration Statement or the Prospectus.
10. Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page of the Prospectus Supplement
relating to the offering, the fourth and fifth paragraphs under the heading
"Underwriting," the first paragraph under the heading "Underwriting --
Commissions and Discounts" and the paragraphs under the heading "Underwriting --
Price Stabilization, Short Positions" in the Prospectus Supplement constitute
the only information furnished by or on behalf of the Underwriters as such
information is referred to in Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention:
Syndicate Department; if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at 000 - 000xx
Xxxxxx X.X., Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxx, Chief Financial Officer.
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New
-28-
York, which courts shall have jurisdiction over the adjudication of such
matters, and the Company consents to the jurisdiction of such courts and
personal service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Claim is brought by
any third party against UBS or any indemnified party. Each of UBS and the
Company (on its behalf and, to the extent permitted by applicable law, on behalf
of its stockholders and affiliates) waives all right to trial by jury in any
Claim (whether based upon contract, tort or otherwise) in any way arising out of
or relating to this Agreement. The Company agrees that a final judgment in any
such Claim brought in any such court shall be conclusive and binding upon the
Company and may be enforced in any other courts to the jurisdiction of which the
Company is or may be subject, by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters and the Company and to
the extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in
one or more counterparts which together shall constitute one and the same
agreement among the parties.
16. Successors and Assigns. This Agreement shall be binding upon
the Underwriters and the Company and their successors and assigns and any
successor or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
17. Miscellaneous. UBS, an indirect, wholly owned subsidiary of
UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS AG. Because UBS is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are
not insured by the Federal Deposit Insurance Corporation, are not guaranteed by
a branch or agency, and are not otherwise an obligation or responsibility of a
branch or agency.
-29-
If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this agreement and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
XXXXXXXXX TECHNOLOGIES CORPORATION
By: ______________________________
Name:
Title:
Accepted and agreed to as of the
date first above written, on
behalf of themselves
and the other several Underwriters
named in Schedule A
UBS SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
KEYBANC CAPITAL MARKETS,
A DIVISION OF MCDONALD INVESTMENTS INC.
By: UBS SECURITIES LLC
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
-30-
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
UBS SECURITIES LLC 1,920,000
WACHOVIA CAPITAL MARKETS, LLC 960,000
KEYBANC CAPITAL MARKETS,
A DIVISION OF MCDONALD INVESTMENTS INC. 320,000
---------
Total........................ 3,200,000
---------
-1-
SCHEDULE B
SUBSIDIARY % OWNED BY THE JURISDICTION OF
COMPANY (DIRECTLY OR INCORPORATION
INDIRECTLY)
---------------------------------------------------------------------------------
Advanced Input Devices, Inc. 100% Delaware
Armtec Countermeasures Co. 100% Delaware
Armtec Defense Products Co. 100% Delaware
Auxitrol S.A. 100%* France
Xxxxxxxx-TA Co. 100% California
Korry Electronics Co. 100% Delaware
Xxxxx Holding Corporation 100% Delaware
Xxxxx International Europe
S.A. 100%* France
Xxxxx Electric Co. 100% Delaware
Weston Aerospace Limited 100% U.K.
* Except for nominal share amounts held by third parties for purposes of
compliance with the applicable laws of the jurisdiction.
-2-
SCHEDULE C
1. Xxxxxx X. Xxxxxx
2. Xxxxxxx X. Xxxxxx
3. Xxxxxx X. Xxxxxx
4. Xxxxxx X. X. Xxxxxxxxx
5. Xxxxx X. Xxxxx
6. Xxxxxxx X. Xxxxxx
7. Xxxxxxx X. Xxxxxxxx
8. Xxxxx X. Xxxxx
9. Xxxx X. Xxxxxxxx
10. Xxxx X. Xxxxxxxx
11. Xxxxxx X. Xxxxx
12. Xxxxxxx X. Xxxxxxxxxxxx
13. Xxxxx X. Xxxxxxx
14. Xxxxx X. Xxxxxx
-3-
EXHIBIT A
Xxxxxxxxx Technologies Corporation
Common Stock
($0.20 Par Value)
November , 2004
UBS Securities LLC
Wachovia Capital Markets, LLC
KeyBanc Capital Markets, a Division of McDonald Investments Inc.
c/o UBS Securities LLC
As Representative of the several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement") to be entered
into by Xxxxxxxxx Technologies Corporation (the "Company") and you, as
Representative of the several Underwriters named therein, with respect to the
public offering (the "Offering") of Common Stock, par value $0.20 per share, of
the Company (the "Common Stock").
In order to induce you to enter into the Underwriting Agreement, the undersigned
agrees that for a period of 90 days after the date of the final prospectus
relating to the Offering the undersigned will not, without the prior written
consent of UBS Securities LLC ("UBS"), (i) sell, offer to sell, contract or
agree to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or file (or
participate in the filing of) a registration statement with the Securities and
Exchange Commission (the "Commission") in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder
with respect to, any Common Stock of the Company or any securities convertible
into or exercisable or exchangeable for Common Stock, or warrants or other
rights to purchase Common Stock (collectively, the "Securities"), (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Securities, whether
any such transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or (iii) publicly announce an intention to
effect any transaction specified in clause (i) or (ii); provided, however, that
such 90-day period shall be extended by up to 17 days if UBS notifies the
Company and the undersigned prior to the expiration of such 90-day period that
such extension is necessary in order to permit any Underwriter to publish a
research report in compliance with New York Stock Exchange Rule 472(f)(4) and
NASD Conduct
Rule 2711(f)(4). The foregoing sentence shall not apply to (a) the registration
of or sale to the Underwriters of any Common Stock pursuant to the Offering and
the Underwriting Agreement, (b) bona fide gifts, including but not limited to
transfers of any Securities either during his or her lifetime or on death by
will or by intestacy to his or her immediate family, provided the recipient
thereof agrees in writing with the Underwriters to be bound by the terms of this
Lock-Up Letter Agreement and confirms that he, she or it has been in compliance
with the terms of this Lock-Up Letter Agreement since the date hereof, (c)
dispositions to any trust for the direct or indirect benefit of the undersigned
and/or the immediate family of the undersigned and/or a charitable organization,
provided that such trust agrees in writing with the Underwriters to be bound by
the terms of this Lock-Up Letter Agreement and confirms that it has been in
compliance with the terms of this Lock-Up Letter Agreement since the date hereof
or (d) sales of up to an aggregate of 50,000 shares of any Securities pursuant
to a previously established written trading plan that meets the requirements set
forth in Rule 10b5-1 of the Exchange Act.
In addition, the undersigned hereby waives any rights the undersigned may have
to require registration of Common Stock in connection with the filing of a
registration statement relating to the Offering. The undersigned further agrees
that, for a period of 90 days after the date of the final prospectus relating to
the Offering (or for the period of any extension of such 90-day period as
provided herein), the undersigned will not, without the prior written consent of
UBS, make any demand for, or exercise any right with respect to, the
registration of Securities.
If (i) the Company notifies you in writing that it does not
intend to proceed with the Offering, (ii) the registration statement filed with
the Securities and Exchange Commission with respect to the Offering is withdrawn
or (iii) for any reason the Underwriting Agreement shall be terminated prior to
the time of purchase (as defined in the Underwriting Agreement), this Lock-Up
Letter Agreement shall be terminated and the undersigned shall be released from
its obligations hereunder.
Yours very truly,
___________________________
Name:
EXHIBIT B
OFFICERS' CERTIFICATE
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the time of purchase and, if
applicable, the additional time of purchase.
3. The Company has performed all of its obligations under this Agreement as
are to be performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be.
4. The conditions set forth in paragraphs (e) and (f) of Section 6 of this
Agreement have been met.
5. The financial statements and other financial information included in the
Registration Statement and the Prospectus fairly present in all material
respects the financial condition, results of operations, and cash flows of
the Company as of, and for, the periods presented in the Registration
Statement.
