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EXHIBIT 1.1
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2,000,000 Shares
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Common Stock
October ___, 1997
UNDERWRITING AGREEMENT
EVEREN Securities, Inc.
Ladenburg Xxxxxxxx & Co. Inc.
The Xxxxxxx Companies Incorporated
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2,000,000 Shares
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Common Stock
($0.01 par value)
UNDERWRITING AGREEMENT
October ___, 1997
EVEREN Securities, Inc.
Ladenburg Xxxxxxxx & Co. Inc.
The Xxxxxxx Companies Incorporated
As Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
American Coin Merchandising, Inc., a Delaware corporation (the
"Company"), and the stockholders of the Company listed on Schedule I hereto
(collectively referred to as the "Selling Stockholders"), confirm their
agreement with each other and the several underwriters listed in Schedule II
hereto (the "Underwriters"), for whom EVEREN Securities, Inc., Ladenburg
Xxxxxxxx & Co. Inc. and The Xxxxxxx Companies Incorporated (collectively, the
"Representatives") have been duly authorized to act as representatives, as
follows:
1. The Shares. Subject to the terms and conditions set forth in
this agreement (the "Agreement"), the Company and the Selling Stockholders
propose to sell 2,000,000 shares of the Company's Common Stock, $0.01 par value
(the "Common Stock"), to the several Underwriters, of which 1,000,000 of the
Company's authorized but unissued shares are to be issued and sold by the
Company and an aggregate of 1,000,000 shares are to be sold by the Selling
Stockholders. Such 2,000,000 shares of Common Stock proposed to be sold by the
Company and the Selling Stockholders are hereinafter referred to as the "Firm
Shares." The Selling Stockholders also propose to grant to the Underwriters an
option to purchase an aggregate of up to 300,000 additional shares of Common
Stock (the "Additional
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Shares") if requested by the Underwriters as provided in Section 3 hereof. The
Firm Shares and the Additional Shares are herein collectively called the
"Shares."
The Company and each of the Selling Stockholders hereby confirm their
respective agreements with the Underwriters as follows:
2. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1 (File No.
333-35947) including a prospectus, relating to the Shares, and certain
amendments to such registration statement. The registration statement, as
amended at the time when it became or becomes effective, including all
financial schedules and exhibits thereto and all of the information (if any)
deemed to be part of the registration statement at the time of its
effectiveness pursuant to Rule 430A under the Act ("Rule 430A"), is hereinafter
referred to as the "Registration Statement"; the prospectus in the form first
provided to the Underwriters by the Company in connection with the offering and
sale of the Shares (whether or not required to be filed pursuant to Rule 424(b)
under the Act ("Rule 424(b)")) is hereinafter referred to as the "Prospectus,"
provided that in the event any revised prospectus shall be provided to the
Underwriters by the Company for use in connection with the offering of the
Shares that differs from the Prospectus (whether or not any such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) under
the Act), the term "Prospectus" shall refer to the revised prospectus from and
after the time it is first provided to the Underwriters for such use; and each
preliminary prospectus included in the Registration Statement prior to the time
it became or becomes effective is herein referred to as a "Preliminary
Prospectus."
3. Agreements to Sell and Purchase. (a) On the basis of the
representations and warranties contained in this Agreement, and subject to the
terms and conditions hereof, (i) the Company agrees to issue and sell to the
Underwriters, at a price of $_____ per Share (the "Purchase Price"), 1,000,000
Firm Shares; (ii) each Selling Stockholder agrees to sell to the Underwriters,
at the Purchase Price, the number of Firm Shares set forth next to such Selling
Stockholder's name on Schedule I; and (iii) each Underwriter agrees, severally
and not jointly, to purchase from the Company and the Selling Stockholders, at
the Purchase Price, the aggregate number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto. Each of the Underwriters, the
Company and the Selling Stockholders agrees that, prior to or simultaneously
with the purchase of Additional Shares from the other Selling Stockholders
pursuant to Section 4(b) hereof, the Underwriters shall purchase from Selling
Stockholders Xxxxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxx X. Xxxxxxxx ("Xxxxxxxx")
pursuant to Section 4(b) hereof all of the Additional Shares to be sold by
Fagundo and Xxxxxxxx; provided that the foregoing purchase priorities shall not
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apply to the extent Fagundo or Xxxxxxxx, as the case may be, are in breach of
their obligations to sell Additional Shares to the Underwriters pursuant to
this Agreement.
(b) On the basis of the representations and warranties contained
in this Agreement, and subject to the terms and conditions hereof, (i) each
Selling Stockholder agrees to sell to the Underwriters, at the Purchase Price,
the number of Additional Shares set forth next to such Selling Stockholder's
name on Schedule I (such that the Selling Stockholders together agree to so
sell an aggregate of up to 300,000 Additional Shares); and (ii) the
Underwriters shall have the right to purchase, severally and not jointly, from
time to time as provided in Section 4(b) below, up to an aggregate of up to
300,000 Additional Shares at the Purchase Price. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If
any Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule II bears to the total number of Firm Shares.
(c) The Company is advised by you that the Underwriters propose to
make a public offering of their prospective portions of the Shares as soon
after the Registration Statement and this Agreement become effective as in your
judgment is advisable. The Company is further advised that the Underwriters
propose to offer the Shares to the public initially at $_____ per share and to
certain dealers selected by you at a price that represents a concession not in
excess of $____ a share under the Public Offering Price, and that any
Underwriter may allow, and such dealers may reallow, a concession not in excess
of $____ a share, to any Underwriter or to certain other dealers. The Company
is further advised that after the initial public offering, the price to the
public, the concession and the discount to dealers may be changed.
(d) For a period of 90 days from the date this Agreement becomes
effective, the Company will not, without the prior written consent of EVEREN
Securities, Inc. on behalf of the Underwriters (1)(a) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (b) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Common
Stock (whether any such transaction described in subclause (a) or (b) of this
clause (1) is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise); or (2) publicly disclose its intention to
make or enter into any such offer, pledge, sale, contract, purchase, grant,
transfer, disposition or transaction described in clause (1); provided,
however, that the foregoing clauses (1) and (2) shall not apply to the
transactions expressly contemplated hereby and the granting of options for
shares of Common Stock and involving the Shares the sales of shares of
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Common Stock to the Company's directors, officers or employees pursuant to the
exercise of options under the Company stock plans described in the Prospectus.
(e) For a period of 90 days from the date this Agreement becomes
effective, the Company will not, without the prior written consent of EVEREN
Securities, Inc. on behalf of the Underwriters, file a registration statement
relating to shares of capital stock (including the Common Stock) or securities
convertible into or exercisable or exchangeable for, capital stock or warrants,
options or rights to purchase or acquire, capital stock, with the exception of
the filing of Registration Statements on Form S-8 with respect to the Company
stock plans described in the Prospectus.
(f) For a period of 270 days (180 days in the case of Fagundo and
Xxxxxxxx) from the date this Agreement becomes effective, each Selling
Stockholder agrees that he or she will not, without the prior written consent
of EVEREN Securities, Inc. on behalf of the Underwriters (1)(a) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (b) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Common
Stock (whether any such transaction described in subclause (a) or (b) of this
clause (1) is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise); or (2) publicly disclose his or her
intention to make or enter into any such offer, pledge, sale, contract,
purchase, grant, transfer, disposition or transaction described in clause (1);
provided, however, that the foregoing clauses (1) and (2) shall not apply to
the transactions expressly contemplated hereby involving the Shares or to
transfers of Common Stock to partnerships, limited liability companies, trusts
or similar entities organized for the exclusive benefit of family members of
Selling Stockholders for financial and estate planning purposes so long as (x)
any transferee that receives Common Stock as a result of such transfer shall
agree, in writing delivered to EVEREN Securities, Inc. prior to such transfer,
to be bound by the restrictions set forth in this Agreement and (y) shall be
capable of being, and shall in fact be, so bound.
4. Agreements of the Company and the Selling Stockholders as to
Delivery and Payment. The Company and each Selling Stockholder agrees with
each Underwriter that:
(a) Delivery to the Underwriters of and payment for the
Firm Shares shall be made at 10:00 A.M., New York City time, on the
third full business day (such time and date being referred to as the
"Closing Date") following the date of the initial public offering of
the Firm Shares pursuant to this Agreement as advised to you by the
Company, at such place as you shall designate.
(b) Delivery to the Underwriters of and payment for any
Additional Shares to be purchased by the Underwriters shall be made at
such place as the
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Representatives shall designate, at 10:00 A.M., New York City time, on
such date or dates (individually, an "Option Closing Date" and
collectively, the "Option Closing Dates"), which may be the same as
the Closing Date but shall in no event be earlier than the Closing
Date, as shall be specified in a written notice from the
Representatives to the Company of the Underwriters' determination to
purchase a number, specified in said notice, of Additional Shares.
Any such notice may be given at any time within 30 days after the date
of this Agreement. In connection with any such purchase of Additional
Shares, each of the Underwriters, the Company and the Selling
Stockholders acknowledge and agree that (i) the Underwriters shall
purchase Additional Shares from the Selling Stockholders according to
the priorities set forth in Section 3 above (if applicable), and (ii)
an Option Closing Date may be after the expiration of 30 days after
the date of this Agreement.
(c) The Company and the Selling Stockholders shall
deliver, against payment of the Purchase Price for the Shares so
purchased, such Shares in the form of one or more permanent global
securities in definitive form deposited with Norwest Bank Minnesota,
N.A. (the "Transfer Agent") acting as custodian for The Depositary
Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Payment of the Purchase Price for such Shares shall
be made by the Underwriters to the Company or the Selling Stockholders
(as the case may be), by wire transfer in federal or same day funds,
against delivery of such Shares to the Transfer Agent as custodian for
DTC.
5. Further Agreements of the Company and the Selling
Stockholders.
(I) The Company covenants and agrees with each Underwriter that:
(a) it will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the
Registration Statement or, if necessary pursuant to Rule 430A under
the Act, a post- effective amendment to the Registration Statement, as
soon as practicable after the execution and delivery of this
Agreement, and will use its best efforts to cause the Registration
Statement or such post-effective amendment to become effective at the
earliest possible time; and the Company will comply fully and in a
timely manner with the applicable provisions of Rule 424(b) and Rule
430A under the Act;
(b) it will advise you promptly and, if requested by you,
confirm such advice in writing, (i) when the Registration Statement
has become effective, if and when the Prospectus is sent for filing
pursuant to Rule 424 under the Act and when any post-effective
amendment to the Registration Statement becomes effective, (ii) of the
receipt of any comments from the Commission that relate to the
Registration Statement or requests by the Commission for amendments to
the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (iii) of the issuance by the
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Commission of any stop order suspending the effectiveness of the
Registration Statement, or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction, or the initiation or,
to the best knowledge of the Company, threat of any proceedings for
such purpose by the Commission or any state securities commission or
other regulatory authority, and (iv) of the happening of any event or
information becoming known during the period referred to in paragraph
(e) below that makes any statement of a material fact made in the
Registration Statement untrue or that requires the making of any
additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements
therein not misleading or that makes any statement of a material fact
made in the Prospectus (as amended or supplemented from time to time)
untrue or that requires the making of any additions to or changes in
the Prospectus (as amended or supplemented from time to time) in order
to make the statements therein, not misleading; if at any time the
Commission shall issue or institute proceedings (or threaten to
institute any such proceedings) to issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue or institute
proceedings (or threaten to institute proceedings) to issue an order
suspending the qualification or exemption of the Shares under any
state securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(c) it will furnish to you without charge one signed copy
of the Registration Statement as first filed with the Commission and
of each amendment to it, including all exhibits filed therewith, and
will furnish to you and each Underwriter designated by you such number
of conformed copies of the Registration Statement as so filed and of
each amendment to it, without exhibits, as you may reasonably request;
(d) it will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or make any supplement to the Prospectus of which
you shall not previously have been advised and provided a copy a
reasonable period of time prior to the filing thereof or to which you
or your counsel shall reasonably object; and it will prepare and file
with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or supplement to the
Prospectus that may be necessary or advisable in connection with the
distribution of the Shares by you in your or your counsel's opinion,
and will use its best efforts to cause the same to become effective as
promptly as possible;
(e) promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as a
prospectus is required by the Act to be delivered in connection with
the sales by an underwriter or a dealer (in the opinion of your
counsel), it will furnish to each Underwriter and dealer without
charge as many copies of the Prospectus (and any amendment or
supplement of the Prospectus) as such Underwriter or dealer may
reasonably
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request for the purposes contemplated by the Act; the Company consents
to the use of the Prospectus and any amendment or supplement thereto
by any Underwriter or any dealer, both in connection with the offering
or sale of the Shares and for such period of time thereafter as the
Prospectus is required by the Act to be delivered in connection
therewith;
(f) if during the period specified in paragraph (e) any
event shall occur or information become known as a result of which in
the opinion of your counsel it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in
light of the circumstances existing as of the date the Prospectus is
delivered to a purchaser, not misleading, or it is necessary to amend
or supplement the Prospectus to comply with any law, it will forthwith
prepare and, subject to paragraph 5(d) above, file with the Commission
at the sole expense of the Company an appropriate amendment or
supplement to the Prospectus so that the statements of any material
facts in the Prospectus, as so amended and supplemented, will not in
light of the circumstances when it is so delivered, be misleading, or
so that the Prospectus will comply with the Act and it will furnish to
the Underwriters and to such dealers as the Underwriters shall
specify, at the sole expense of the Company, such number of copies
thereof as such Underwriters or dealers may reasonably request;
(g) Without limiting the generality of the foregoing
clause (f), the Company acknowledges and agrees that if, prior to the
exercise in full or termination or expiration of the option to
purchase the Additional Shares, the Company incurs any liability or
obligation, direct or contingent, or enters into any material
transaction, or otherwise takes any action or experiences any change
in situation or circumstances which may render the Prospectus (as it
then exists) misleading, the Company shall (i) promptly notify EVEREN
Securities, Inc. in writing of such event, such notice to explain the
nature and scope of such event in reasonable detail insofar as
possible, and (ii) forthwith prepare and, subject to paragraph 5(d)
above, file with the Commission at the sole expense of the Company an
appropriate amendment to the Registration Statement or supplement to
the Prospectus, and (iii) at the sole expense of the Company,
reproduce and distribute such amendment or supplement to such persons
or institutions as EVEREN Securities, Inc. shall request;
(h) prior to any public offering of the Shares, it will
cooperate with you and counsel for the Underwriters in connection with
the filing of notices of the offer and sale of the Shares by the
several Underwriters and by dealers under the state securities or Blue
Sky laws of such jurisdictions as you may request (provided, that the
Company shall not be obligated to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or to take any action
which would subject it to general consent to service of process in any
jurisdiction in which it is not now so subject);
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(i) it will not acquire any capital stock of the Company
prior to the exercise in full or termination or expiration of the
option to purchase the Additional Shares nor will the Company declare
or pay any dividend or make any other distribution upon the Common
Stock payable to stockholders of record on a date prior to the
exercise in full or termination or expiration of the option to
purchase the Additional Shares, except in either case as contemplated
by the Prospectus;
(j) no later than the 90th day after then end of the
Company's fourth fiscal quarter beginning after the date of this
Agreement, the Company will make generally available to its security
holders and furnish to the Underwriters (i) a copy of its Form 10K for
its fiscal year ended with such quarter, or (ii) an earnings statement
covering a period of at least 12 months beginning after the "effective
date" (as defined in Rule 158 under the Act) of the Registration
Statement (but in no event commencing later than 90 days after such
date) that will satisfy the provisions of Section 11(a) of the Act and
Rule 158 thereunder;
(k) during the period of five years after the date of
this Agreement, it will furnish to you a copy (i) as soon as
practicable after the filing thereof, of each report filed by the
Company with the Commission, any securities exchange or the National
Association of Securities Dealers, Inc. ("NASD"); (ii) as soon as
practicable after the release thereof, of each material press release
in respect of the Company; (iii) as soon as available, of each report
of the Company mailed to stockholders; and (iv) as soon as available,
such other publicly available information concerning the Company as
you may reasonably request;
(l) whether or not the transactions contemplated hereby
are consummated or this Agreement becomes effective as to all of its
provisions or is terminated, to pay all costs, fees, expenses and
taxes incident to the performance by the Company of its obligations
hereunder, including (i) the preparation, printing, filing and
distribution under the Act of the Registration Statement (including
financial statements and exhibits), each preliminary Prospectus and
all amendments and supplements to any of them prior to or during the
period specified in paragraph (e) above of this Section 5, (ii) the
word processing, reproduction and distribution of the Blue Sky Survey
and any related memoranda, correspondence and other documents prepared
and delivered by the Underwriters or their counsel (including in each
case any disbursements of counsel for the Underwriters relating to
such preparation and delivery), (iii) the filing of notices of the
offer and sale of the Shares by the several Underwriters and by
dealers under the securities or Blue Sky laws of the several states
(including in each case the fees and disbursements of counsel for the
Underwriters relating to such filings), (iv) the filings and clearance
with the NASD in connection with the offering and sale of the Shares
(but excluding the fees, but not disbursements, of counsel for the
Underwriters relating to such filings and clearance), (v) the listing
of the Shares on the Nasdaq National
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Market ("Nasdaq Stock Market") to the extent not already so listed,
(vi) furnishing such copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto as may reasonably be requested for use in
connection with the offering or sale of the Shares by the Underwriters
or by dealers to whom the Shares may be sold, (vii) obtaining the
opinions to be provided pursuant to Sections 8(f) and 8(g) of this
Agreement and (viii) the performance by the Company of all of its
other obligations under this Agreement; if the sale of the Shares
provided for herein is not consummated because the Underwriters
exercise their right to terminate this Agreement pursuant to Section 9
hereof and any of the following have occurred during the term of this
Agreement: (a) there has been any material adverse change in the
condition (financial or otherwise), earnings, affairs or business of
the Company, or any event or events that could reasonably be expected
to result in such a material adverse change, (b) the Company or any of
the Selling Stockholders shall refuse or be unable to comply with any
provision hereof (except as the result of a breach of this Agreement
by the Underwriters), the Company will promptly reimburse the
Underwriters upon demand for all reasonable out-of-pocket expenses
(including the fees and disbursements of counsel for the Underwriters)
that shall have been incurred by the Underwriters in connection with
the proposed purchase and sale of Shares;
(m) it will use all of the net proceeds received by it
from the sale of the Shares in the manner specified in the Prospectus;
(n) if, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in
reliance upon Rule 430A, then immediately following the execution and
delivery of this Agreement, it will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule
424(b), copies of an amended prospectus, or, if required by such Rule
430A, a post-effective amendment to the Registration Statement
(including an amended prospectus), containing all information so
omitted;
(o) it will cause the Shares to be listed, subject to
notice of issuance or sale, on the Nasdaq Stock Market; it will comply
with all registration, filing and reporting requirements of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") and
the Nasdaq Stock Market; and
(p) it will use its best efforts to do and perform all
things required to be done and performed under this Agreement by it
prior to or after the Closing Date or any Option Closing Date, as the
case may be, and to satisfy all conditions precedent to the delivery
of the Shares.
(II) Each Selling Shareholder covenants and agrees with each
Underwriter and the Company that:
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(a) he or she will advise you promptly and, if requested
by you, confirm such advice in writing, of the happening of any event
or information becoming known during the period referred to in
paragraph (e) above that makes any statement of a material fact made
in the Registration Statement with respect to his or her ownership of
Shares untrue or that requires the making of any additions to or
changes in the Registration Statement (as amended or supplemented from
time to time) with respect to his or her ownership of Shares in order
to make the statements therein with respect to his or her ownership of
Shares not misleading or that makes any statement of a material fact
made in the Prospectus (as amended or supplemented from time to time)
untrue or that requires the making of any additions to or changes in
the Prospectus (as amended or supplemented from time to time) in order
to make the statements therein with respect to his or her ownership of
Shares, not misleading;
(b) he or she will cooperate with you and counsel for the
Underwriters in connection with the filing of notices for offer and
sale of the Shares by the several Underwriters and by dealers under
the state securities or Blue Sky laws of such jurisdictions as you may
request;
(c) he or she will reimburse the Company for a portion of
the Company's costs and expenses described in clause (l) above
(including reimbursement by the Company of certain costs and expenses
incurred by the Underwriters) pro rata in proportion to the number of
Shares being sold by him or her in the Offering;
(d) prior to or contemporaneously with the execution of
this Agreement, he or she will (i) execute and deliver a custody
agreement, power of attorney, stock power, stockholder certificate,
payment authorization and such other documents as may reasonably be
required by the Company or the Underwriters in connection with the
sale of Shares by the Selling Stockholders pursuant hereto, and (ii)
deliver the certificates evidencing all of the Shares to be sold by
him or her pursuant to this Agreement, duly endorsed in blank, into
the custody of the Transfer Agent to hold pending the consummation of
the transactions contemplated hereby; and
(e) he or she will use his or her best efforts to do and
perform all things required to be done and performed under this
Agreement by it prior to or after the Closing Date or any Option
Closing Date, as the case may be, and to satisfy all conditions
precedent to the delivery of the Shares.
6. Representations and Warranties.
(a) the Company represents and warrants to each
Underwriter as of the date hereof, the Closing Date and each Option
Closing Date that:
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(i) The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus
relating to the proposed offering of the Shares nor instituted
or threatened any proceedings for that purpose. The
Registration Statement, on the date it became or becomes
effective, each Preliminary Prospectus, on the date of the
filing thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission (or if not filed, on the date provided by
the Company to the Underwriters in connection with the
offering and sale of the Shares) and at the Closing Date and
each Option Closing Date conformed or will conform with the
requirements of the Act. The Registration Statement, on the
date it became or becomes effective, did not or will not
contain an untrue statement of material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading. Each Preliminary
Prospectus, on the date of the filing thereof with the
Commission, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission (or
if not filed, on the date provided by the Company to the
Underwriters in connection with the offering and sale of the
Shares) and at the Closing Date and each Option Closing Date
did not and will not include an untrue statement of material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading. The foregoing shall not apply to statements in or
omissions from the Registration Statement and the Prospectus
made or omitted in reliance upon, and in conformity with,
information relating to the Underwriters furnished in writing
to the Company by or on behalf of the Underwriters with your
consent expressly for use therein. The Company and the
Selling Stockholders hereby acknowledge for all purposes under
this Agreement that the written information furnished to the
Company by or on behalf of the Underwriters for use in the
preparation of the Registration Statement or the Prospectus or
any amendment or supplement thereto ("Underwriters'
Information") consists only of (A) the statements set forth
under the caption "Underwriting" in the Prospectus, and (B)
the stabilization and passive market- making legends on the
gate-fold of the Prospectus and (C) footnotes 1 and 3 and the
last paragraph of text on the cover page of the Prospectus.
(ii) The Company has been duly incorporated and is
a validly existing corporation in good standing under the laws
of Delaware, with full corporate power and authority to own or
lease its properties and assets and to conduct its business as
described in the Registration Statement and the Prospectus and
is duly qualified to do business in each jurisdiction in which
it owns or leases real property or in which the conduct of its
business or the ownership or leasing of property requires such
qualification, except where the failure to be so qualified,
either individually or in the aggregate, would not have a
material adverse effect
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on the condition (financial or otherwise), business, assets,
prospects, net worth or results of operations of the Company
taken as a whole (a "Material Adverse Effect"). Other than
ACMI Canada, Inc., a Colorado corporation ("ACMI Canada"), the
Company has no subsidiaries and has never had a subsidiary.
All of the issued and outstanding capital stock of ACMI Canada
is owned directly by the Company. ACMI Canada does not now
conduct, and never has conducted, any business and does not
now own, and never has owned, any material assets.
(iii) The capitalization of the Company is, and
upon consummation of the transactions contemplated hereby will
be, as set forth in the Registration Statement and the
Prospectus under the caption "Capitalization." All of the
outstanding shares of capital stock of the Company have been
duly authorized and are validly issued, are fully paid and
non-assessable and conform to the description thereof in the
Registration Statement and the Prospectus and were not issued
in violation of any preemptive rights or other rights to
subscribe for or purchase securities. Except as set forth in
the Registration Statement and the Prospectus with respect to
the Option Plan and Directors' Plan (as defined in the
Prospectus) and the 125,000 shares of Common Stock issuable
upon the exercise of those certain warrants described in
clause (ii) of footnote 1 under the caption "Capitalization"
in the Prospectus (the "Warrants"), no options, warrants or
other rights to purchase from the Company, agreements or other
obligations of the Company to issue or other rights to convert
any obligation into, or exchange any securities for, shares of
capital stock of or ownership interests in the Company are
outstanding. The description of the Option Plan, the
Directors' Plan, the Warrant and the other options or rights
granted and exercised thereunder, as set forth in the
Registration Statement and the Prospectus, accurately and
fairly presents the information required to be shown under the
Act with respect to such options, warrants and rights.
(iv) Subsequent to the respective dates as of
which information is given in the Registration Statement and
Prospectus, and except as described therein, (A) the Company
has not incurred any material liabilities or obligations,
direct or contingent, or entered into any material
transactions not in the ordinary course of business, (B) the
Company has not purchased any of its outstanding capital stock
or declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock or otherwise and
(C) there has not been any material adverse change in the
Company's condition (financial or otherwise), business,
affairs, prospects or results of operations or any material
change in the Company's capital stock, short-term debt or
long-term debt.
(v) The Shares to be sold by the Company pursuant
to this Agreement have been duly and validly authorized and,
when issued,
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delivered and paid for pursuant to this Agreement, will be
validly issued, fully paid and nonassessable, and will conform
to the description thereof contained in the Prospectus.
(vi) This Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid
and binding agreement of the Company enforceable in accordance
with its terms, except (i) as the enforceability hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
and by general equity principles, and (ii) that rights to
indemnity or contribution hereunder may be limited by federal
or state laws or the public policy underlying such laws.
(vii) The Company is not in violation of its
Certificate of Incorporation or by-laws. The Company is not
in violation of or in breach of or in default in (nor has any
event occurred that with notice or lapse of time, or both,
would be a breach of or a default in) the performance of any
obligation, agreement or condition contained in any agreement,
lease, contract, permit, license, franchise agreement,
mortgage, loan agreement, debenture, note, deed of trust,
bond, indenture or other evidence of indebtedness or any other
instrument or obligation (collectively, "Obligations and
Instruments") by which it or any of its properties or assets
is bound or affected (except for such contraventions or
defaults as would not, individually or in the aggregate, have
a Material Adverse Effect). The Company is not in violation
of any statute, judgment, decree, order, Rule or regulation
(collectively, "Laws") applicable to the Company or any of its
properties or assets that, alone or together with other
violations of Laws, would result in a Material Adverse Effect.
The Company has not been charged with and, to the best
knowledge of the Company (it being understood that, for the
purposes of this Agreement, the "knowledge" of the Company
includes the actual knowledge of Xxxxxx X. Xxxxx, X. Xxxx
Xxxx, Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxxx), is not under
investigation with respect to any material violation of any
such Laws. To the best knowledge of the Company, no other
party under any contract or other agreement to which the
Company is a party is in material default thereunder except
for such defaults as would not, individually or in the
aggregate, result in a Material Adverse Effect.
(viii) The execution, delivery and performance of
this Agreement and delivery of the Shares by the Company and
compliance by the Company with all the provisions hereof and
the consummation of the transactions contemplated hereby and
as described in the Prospectus under the caption "Use of
Proceeds" will not, alone or upon notice or the passage of
time or both (A) require any consent, approval, authorization
or other order of any court, regulatory body, administrative
agency or other governmental body or third party (except such
as may be required
-13-
15
under the Act and the securities or Blue Sky laws of the
various states or by the NASD), (B) result in the creation or
imposition of any lien, charge or encumbrance upon any of the
properties or assets of the Company pursuant to the terms and
provisions of any Obligation or Instrument, (C) conflict with
or constitute a breach or default under any Obligation or
Instrument to which the Company is a party or by which the
Company or any of its properties or assets is bound, (except
for such conflicts, breaches or defaults as would not,
individually or in the aggregate, have a Material Adverse
Effect), or (D) assuming compliance with the Act and all
applicable state securities or Blue Sky laws, violate or
conflict with any Laws applicable to the Company or any of its
properties or assets (except for such violations or conflicts
as could not, individually or in the aggregate, have a
Material Adverse Effect). No action, suit or proceeding
before any court or arbitrator or any governmental body,
agency or official (domestic or foreign) is pending against
or, to the knowledge of the Company, threatened against the
Company, that, if adversely determined, could reasonably be
expected to in any manner invalidate this Agreement.
(ix) Except as set forth in the Prospectus, there
is no action, suit, proceeding, inquiry or investigation,
governmental or otherwise before any court, arbitrator or
governmental agency or body (collectively, "Proceedings")
pending to which the Company is a party or to which any of its
properties or assets are subject, that, if determined
adversely to the Company, might, individually or in the
aggregate, result in a Material Adverse Effect, or that might
materially and adversely affect the properties or assets
thereof, or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of
any of the Shares to be sold hereunder, and, to the best
knowledge of the Company after due inquiry of appropriate
Company personnel, no such Proceedings are threatened. There
is no contract, document, agreement or transaction to which
the Company is a party, or that (to the Company's knowledge)
involved or involves the Company or any of its properties or
assets that are required to be described in or filed as
exhibits to the Registration Statement or the Prospectus by
the Act that have not been so described or filed. No action
has been taken with respect to the Company, and, to the best
knowledge of the Company, no statute, Rule or regulation or
order has been enacted, adopted or issued by any governmental
agency that suspends the effectiveness of the Registration
Statement, prevents or suspends the use of any Preliminary
Prospectus or the Prospectus or suspends the sale of the
Shares in any jurisdiction referred to in Section 5(g) hereof.
No injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been
issued with respect to the Company that might prevent the
issuance of the Shares, in any manner invalidate this
Agreement, suspend the effectiveness of the Registration
Statement, prevent or suspend the use of any Preliminary
Prospectus or
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the Prospectus or suspend the sale of the Shares in any
jurisdiction referred to in Section 5(g) hereof. Every
request of the Commission, or any securities authority or
agency of any jurisdiction, for additional information (to be
included in the Registration Statement or the Prospectus or
otherwise) has been complied with in all material respects.
(x) The Company has not violated any foreign,
federal, state or local law or regulation relating to the
protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), nor any foreign, Federal,
state or local law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable foreign,
Federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act of 1974, as
amended or the rules and regulations promulgated thereunder or
similar foreign laws, that, in each case or in the aggregate,
might result in a Material Adverse Effect. None of the
property leased by the Company is contaminated with any waste
or hazardous substances (except that certain leased locations
may contain asbestos or certain cleaning materials, the
presence of which will not result in a Material Adverse
Effect), nor may the Company be deemed an "owner or operator"
of a "facility" or "vessel" that owns, possesses, transports,
generates, discharges or disposes of a "hazardous substance"
as those terms are defined in Section 9601 of the
Comprehensive Response Compensation and Liability Act of 1980,
U.S.C. Section 9601 et seq. (except that the Company disposes
in the ordinary course of its business ordinary household
products that may be classified as or contain "hazardous
substances". The disposal of such products (A) is in material
compliance with all applicable laws as of the date hereof and
(B) has not and will not result in a Material Adverse Effect).
(xi) The Company has such permits, licenses,
franchises and authorizations of governmental or regulatory
authorities or third parties ("Permits"), including, without
limitation, under any applicable Environmental Laws, as are
necessary to own, lease and operate its properties and assets
and to conduct its businesses, except where such failures to
have any such Permit which would not, individually or in the
aggregate, have a Material Adverse Effect. The Company has
fulfilled and performed all of its material obligations with
respect to such Permits and no event has occurred that allows,
or after notice or lapse of time, or both would allow,
revocation or termination thereof or result in any other
material impairment of the rights of the holder of any such
Permit. Except as described in the Prospectus, such Permits
contain no restrictions that are materially burdensome to the
Company.
(xii) The Company is not, and does not intend to
conduct its business in a manner in which it would become, an
"investment company" or (to the Company's best knowledge) a
company
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"controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xiii) Except as otherwise set forth in the
Prospectus, the Company has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions
(except liens for taxes not yet due and payable) to all
property and assets described in the Registration Statement as
being owned by it. All leases to which the Company is a party
are subsisting, valid and binding and no default of the
Company or, as applicable, any of the Selling Stockholders or
their respective affiliates or, to the best knowledge of the
Company and the Selling Stockholders, any other person has
occurred or is continuing thereunder that might result in a
Material Adverse Effect. The Company enjoys peaceful and
undisturbed possession under all such leases to which the
Company is a party as lessee with such exceptions as do not
materially interfere with the use made thereof by the Company.
(xiv) The Company maintains reasonably adequate
insurance for the conduct of its business in accordance with
prudent business practices (and the insurance maintained by
retailers generally) with reputable third-party insurers.
(xv) The Company is not in violation of any
foreign, Federal, state or local law relating to
discrimination in the hiring, promotion or pay of employees
nor any applicable foreign, Federal or state wages and hours
laws, nor any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations
promulgated thereunder ("ERISA") or similar foreign laws, the
violation of which in each case or in the aggregate would
result in a Material Adverse Effect. No "reportable event"
(as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) which in each case or in
the aggregate would result in a Material Adverse Effect. The
Company has not incurred any material liability under (i)
Title IV of ERISA with respect to the termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended.
(xvi) Except as disclosed in the Registration
Statement and the Prospectus, no labor dispute with the
employees of the Company exists, or to the best knowledge of
the Company, is imminent, that could result in a Material
Adverse Effect. The Company does not know of any existing or
imminent labor disturbance by the employees of any of its
principle suppliers, customers, manufacturers or contractors
that could reasonably be expected to result in a Material
Adverse Effect.
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(xvii) To the best knowledge of the Company, KPMG
Peat Marwick LLP is an independent public accounting firm
with respect to the Company as required by the Act.
(xviii) The financial statements of the Company,
together with related notes of the Company included in the
Registration Statement and the Prospectus, are accurate and
present fairly the financial position, results of operations
and cash flows of the Company at the indicated dates and for
the indicated periods. Such financial statements have been
prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout the
periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made and
any unaudited financial statements have been prepared on a
basis substantially consistent with that of the audited
financial statements included in the Registration Statement
and the Prospectus. The summary and selected financial and
operating data included in the Registration Statement and the
Prospectus presents fairly the information shown therein and
have been compiled on a basis consistent with the audited and
any unaudited financial statements, as the case may be,
included therein. The pro forma information included in the
Prospectus present fairly the information shown therein, have
been prepared in accordance with GAAP and the Commission's
rules and guidelines with respect to pro forma financial
statements and other pro forma information, and has been
properly compiled on the pro forma basis described therein,
and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate
under the circumstances.
(xix) No holder of any security of the Company has
any right to require inclusion of any such security in the
Registration Statement (except for the holder of the Warrants
which did not perfect its registration rights after due notice
from the Company). There are no preemptive rights with
respect to the offering being made by the Prospectus.
(xx) The Company has filed or caused to be filed,
or has properly filed extensions for, all foreign, federal,
state and local income, value added and franchise tax returns
and has paid all taxes and assessments shown thereon as due,
except for such taxes and assessments as are disclosed or
adequately reserved against and that are being contested in
good faith by appropriate proceedings, promptly instituted and
diligently conducted. All material tax liabilities are
adequately provided for on the books of the Company, and there
is no material tax deficiency that has been or might be
asserted against the Company that is not so provided for.
During the time the Company has elected to be treated as an
"S" Corporation under the Internal Revenue Code, as amended
from time to time (the "Code"), and any applicable
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state law, the Company's election of such status was validly
made, and at all times until October 12, 1995 the Company
qualified continuously for treatment as an S Corporation under
the Code. Prior to October 12, 1995, the Company never (A)
was an ineligible corporation as defined in Section 1361(b)(2)
of the Code (i.e., the Company never was (1) a member of an
affiliated group (determined under Code Section 1504 without
regard to the exceptions contained in subsection (b) thereof,
(2) a financial institution to which Code section 585 applies
(or would apply but for subsection (c) thereof) or to which
Code section 593 applies, (3) an insurance company subject to
tax under subchapter L of the Code, (4) a corporation to which
an election under Code Section 936 applies, or (5) a DISC or
former DISC); (B) had more than 35 stockholders; (C) had as a
stockholder (other than an estate and other than domestic
trusts described in Code section 1361(c)(2), including a
domestic qualified Subchapter S trust) a person who is not an
individual; (D) had a nonresident alien as a stockholder; or
(E) had more than one class of stock outstanding or authorized
or issued debt convertible into capital stock or debt on which
the payment of interest is contingent on profits of the
Company or on the Company's discretion. Prior to October 12,
1995, there was no agreement to redeem or purchase stock of
the Company at the time of a stockholder's death, divorce,
disability or termination of employment (such as buy-sell
agreements among the stockholders or similar option
arrangements) that establishes a purchase price that, at the
time the agreement was entered into, was significantly in
excess of or below the fair market value of the stock of the
Company. A Form 2553 was properly completed and filed with
the Internal Revenue Service within the 15th day of the 3rd
month of the Company's first taxable year; and such Form 2553
was signed by a duly-authorized signatory of the Company's
Form 1120S and all stockholders of the Company (including all
spouses of the stockholders) consented to the Company's S
corporation election by duly executing the Form 2553 filed
with the Internal Revenue Service. The Selling Stockholders
have no claims against the Company with respect to taxes paid
by them on the Company's income during the time the Company
elected to receive "S" corporation treatment under the Code.
(xxi) The Company owns or possesses, or can acquire
on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and
other unpatented and or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, "Patents and
Proprietary Rights") currently employed by it in connection
with the business it now operates except where the failure to
so own, possess or acquire such Patents and Proprietary Rights
would not have a Material Adverse Effect. The Company has not
received any notice and is not otherwise aware of any
infringement of or conflict with asserted rights of
others with respect to any Patent or Proprietary Rights
-18-
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that, if the subject of any unfavorable decision, ruling or
finding, singly or in the aggregate, could result in a
Material Adverse Effect.
(xxii) The Company has not taken and will not take,
directly or indirectly, any action designed to or which has
constituted or that might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(xxiii) Neither the Company nor, to the best
knowledge of the Company and the Selling Stockholders, any
employee or agent of the Company has made any payment of funds
of the Company or received or retained any funds in violation
of any law, Rule or regulation (including, without limitation,
the Foreign Corrupt Practices Act) or of a character required
by the Act to be disclosed in the Prospectus. The Company has
not, at any time during the past five years, (1) made any
unlawful contributions to any candidate for any political
office, or failed fully to disclose any contribution in
violation of law, or (2) made any unlawful payment to state,
federal or foreign government officer or officers, or other
person charged with similar public or quasi-public duty.
(xxiv) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with
management's authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with
management's authorization, and (iv) the recorded
accountability for inventory is compared with the existing
inventory at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxv) There is no material contract, document,
agreement, transaction or relationship of a character required
by the Act to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as
required.
(xxvi) Other than as contemplated in this Agreement,
the Company has not incurred any liability for any finder's or
broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(xxvii) The Company has been subject to the
requirements of Section 12 or 15(d) of the Exchange Act and
has filed in a timely
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manner all reports and other the material required to be filed
pursuant to Sections 13, 14 or 15(d) of the Exchange Act since
October 12, 1995 and, if the Company has used Rule 12b-25(b)
under the Exchange Act with respect to a report or a portion
of any such report, that report or portion thereof has
actually been filed within the time period prescribed by that
rule. All such reports and other materials filed pursuant to
the Exchange Act were, at the time of their filing, complete
and accurate in all material respects.
(xxviii) The Company has not, since the end of its
last fiscal year for which certified financial statements of
the Company 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 of
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 Company.
(b) Each Selling Stockholder severally, but not jointly,
represents and warrants to, and agrees with, the Underwriters and the
Company that:
(i) Such Selling Stockholder has all requisite
power to enter into this Agreement and to sell, assign,
transfer and deliver to the Underwriters the Shares to be sold
by such Selling Stockholder hereunder in accordance with the
terms of this Agreement. This Agreement has been duly
executed and delivered by such Selling Stockholder and
constitutes and will constitute the legal, valid and binding
obligation of such Selling Stockholder enforceable against
such Selling Stockholder in accordance with its terms, except
(i) as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the creditors' rights generally and by
general equity principles and (ii) that rights to indemnity or
contribution hereunder may be limited by federal or state laws
or the public policy underlying such laws.
(ii) Certificates in negotiable form, endorsed in
blank or accompanied by blank stock powers duly executed, with
signatures appropriately guaranteed, representing the Shares
to be sold by such Selling Stockholder hereunder have been
deposited with the Transfer Agent for the purpose of delivery
pursuant to this Agreement. Such Selling Stockholder agrees
that each of the Shares represented by the certificates on
deposit with the Transfer Agent is subject to the interests of
the Underwriters hereunder, that the arrangements made for
such custody and that the obligations of such Selling
Stockholder hereunder shall not be terminated, except as
provided in this Agreement, by any act of such Selling
Stockholder, by operation of law or otherwise, whether in the
case of a trust or estate which is a Selling Stockholder by
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the death of the trustee or trustees or the executor or
executors or any beneficiary or the termination of such trust
or estate, or in the case of a foundation which is a Selling
Stockholder by its liquidation or dissolution or by the
occurrence of any other event. If any trustee, executor or
beneficiary should die or become incapacitated or any such
trust should be terminated, or if any foundation Selling
Stockholder shall liquidate or dissolve, or if any other event
should occur, before the delivery of such Shares hereunder,
the certificates for such Shares deposited with the Transfer
Agent shall be delivered by the Transfer Agent in accordance
with the respective terms and conditions of this Agreement as
if such death, incapacity, termination, liquidation or
dissolution or other event had not occurred, regardless of
whether or not the Transfer Agent shall have received notice
thereof.
(iii) Such Selling Stockholder is the lawful record
and beneficial owner of the Shares to be sold by such Selling
Stockholder hereunder. Upon sale and delivery of, and payment
for, such Shares, as provided herein, such Selling Stockholder
will convey good and marketable title to such Shares, free and
clear of any security interests, liens, encumbrances,
equities, claims, options, rights of third parties or other
defects.
(iv) Such Selling Stockholder has reviewed the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and the Registration
Statement, and the information regarding such Selling
Stockholder set forth therein under the caption "Principal and
Selling Stockholders" is complete and accurate.
(v) The sale by such Selling Stockholder of
Shares pursuant hereto is not prompted by any adverse
information concerning the Company that is not set forth in
the Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). Such Selling Stockholder has not taken and will
not take, directly or indirectly, any action designed to, or
that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares
pursuant to the distribution contemplated by this Agreement
and, other than as permitted by the Act, such Selling
Stockholder has not distributed, nor will such Selling
Stockholder distribute, any prospectus or other offering
material in connection with the offering and sale of the
Shares.
(vi) The sale of the Shares to the Underwriters by
such Selling Stockholder pursuant to this Agreement, the
compliance by such Selling Stockholder with the other
provisions of this Agreement and the consummation of the other
transactions herein contemplated do not (A) require the
consent, approval, authorization, registration or
qualification
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of or with any governmental authority, except such as have
been obtained, such as may be required under state and foreign
Blue Sky laws and, if the Registration Statement is not
effective under the Securities Act as of the time of execution
hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Securities Act and the
Exchange Act, or (B) result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder or any of such
Selling Stockholder's properties are bound, or any statute or
any judgment, decree, order, rule or regulation of any court
or other governmental authority or any arbitrator applicable
to such Selling Stockholder.
(vii) None of the Selling Stockholders nor any
trustee or beneficiary of the Selling Stockholders is
affiliated as a director, officer, partner, stockholder, or
otherwise with any securities broker or dealer which is a
member of the NASD or any other organization that owns or
controls any member of the NASD.
(c) Any certificate signed by any officer of the Company
and delivered to you or to counsel for the Underwriters shall be
deemed a representation and warranty made by the Company to each
Underwriter as to the matters covered thereby and shall be deemed
incorporated herein in its entirety and shall be effective as if such
representation and warranty were made herein; and any certificate
signed by any Selling Stockholder as such and delivered to you or to
counsel for the Underwriters shall also be deemed a representation and
warranty by such Selling Stockholder to each Underwriter as to the
matters covered thereby and shall also be deemed incorporated herein
in its entirety and shall be effective as if such representation and
warranty were made herein.
7. Indemnification.
(a) The Company agrees and, subject to Section 7(e)
below, the Selling Stockholders, severally and not jointly agree, to
indemnify and hold harmless each of the Underwriters and each person,
if any, who controls each of the Underwriters within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (the
"indemnified parties") from and against any and all losses, claims,
damages, liabilities and judgments caused by, arising out of, related
to or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), including the information deemed to be part of
the Registration Statement at the time of effectiveness pursuant to
Rule 430A, if applicable, or the Prospectus or any Preliminary
Prospectus or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading;
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provided, however, that neither the Company nor any Selling
Stockholder shall be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon
an untrue statement or omission made or omitted in reliance upon and
in conformity with any of the Underwriters' Information. In addition
and without limitation of the foregoing, the Company agrees to
indemnify and hold harmless each of the Underwriters and each such
indemnified party from and against any and all losses, claims,
damages, liabilities and judgments caused by, arising out of, related
to or based upon (i) any breach of this Agreement by Selling
Stockholders Fagundo or Xxxxxxxx, or (ii) any breach of Sections 3(b)
or 4(b) of this Agreement by any other Selling Stockholder.
(b) In case any action shall be brought against any of
the indemnified parties, based upon any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or
supplement thereto and with respect to which indemnity may be sought
against the Company or any Selling Stockholder, such indemnified
parties shall promptly notify the Company (and the Selling
Stockholders, care of the Company) in writing (but the failure so to
notify shall not relieve the Company or the Selling Stockholders of
any liability that they may otherwise have to such indemnified parties
under this Section 7 (although the Company's and the Selling
Stockholders' liability to an indemnified party may be reduced on a
monetary basis to the extent, but only to the extent, they have been
prejudiced by such failure on the part of such indemnified party)) and
the Company and the Selling Stockholders shall promptly assume the
defense thereof, including the employment of counsel satisfactory to
such indemnified party and payment of all fees and expenses. The
indemnified parties shall each have the right to employ separate
counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
indemnified parties unless (i) the employment of such counsel shall
have been specifically authorized by the Company, (ii) the Company and
the Selling Stockholders shall have failed to assume promptly the
defense or to employ counsel reasonably satisfactory to such
indemnified party or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified parties
and the Company or the Selling Stockholders, and an indemnified party
shall have been advised by counsel that there may be one or more legal
defenses available to one or more of the indemnified parties that are
different from or additional to those available to the Company or the
Selling Stockholders (in which case the Company and the Selling
Stockholders shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood,
however, that the Company and the Selling Stockholders shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to
any local counsel) for the indemnified parties, which firm shall be
designated in writing by EVEREN Securities, Inc., and that all such
fees and expenses shall be reimbursed
-23-
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promptly as they are incurred). The Company and the Selling
Stockholders shall not be liable for any settlement of any such action
effected without their written consent, which consent shall not be
unreasonably withheld, but if settled with the written consent of the
Company and the Selling Stockholders, the Company and the Selling
Stockholders agree to indemnify and hold harmless the indemnified
parties from and against any and all 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, 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 10 business days after delivery
by registered or certified mail to the proper address for notice to
such indemnifying party of the aforesaid request (whether or not such
delivery is accepted) and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior
to the date of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional and complete release in
writing of such indemnified party from any and all liability on claims
that are the subject matter of such proceeding, which such settlement
shall be in form and substance satisfactory to the indemnified party.
The indemnification provided in this Section 7 will be in addition to
any liability which the Company and the Selling Stockholders may
otherwise have.
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(c) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless the Selling Stockholders, the Company, its
directors, its officers who sign the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Selling Stockholders to
the Underwriters but only with reference to information stated in or
omitted from the Registration Statement, the Prospectus or any
Preliminary Prospectus in reliance upon, and in conformity with,
information relating to the Underwriters furnished in writing to the
Company by or on behalf of the Underwriters with your consent
expressly for use in the Registration Statement, the Prospectus or any
Preliminary Prospectus. In case any action shall be brought against
the Company, any of the Selling Stockholders, any of the Company's
directors, any such officers or any person controlling the Company
based on the Registration Statement, the Prospectus or any Preliminary
Prospectus and in respect of which indemnity may be sought against the
Underwriters, the Underwriters shall have the rights and duties given
to the Company and the Selling Stockholders by Section 7(b) hereof
(except that if the Company and the Selling Stockholders shall have
assumed the defense thereof, such Underwriter shall not be required to
do so, but may employ separate counsel therein and participate in the
defense thereof but the fees and expenses of such counsel shall be at
the expense of such Underwriter), and the Selling Stockholders, the
Company, its directors, any such officers and any person controlling
the Company shall have the rights and duties given to the "indemnified
parties" by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7
is for any reason unavailable to an indemnified party or insufficient
to hold such indemnified party harmless in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other from
the offering of the Shares or (ii) if the allocation provided in
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 and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such
losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering and sale of the
Shares (before deducting expenses) received by the Company and the
Selling Stockholders on the one hand, and the total underwriting
discounts and commissions received by the Underwriters on the other,
bears to the total price to the public of the Shares,
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in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company, the Selling
Stockholders and the Underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or the alleged omission to state a
material fact relates to information supplied by the Company, the
Selling Stockholders or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 7(d) were determined by pro rata allocation (even if
the Underwriters or the Selling Stockholders 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
the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
7, 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 it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has
otherwise paid or been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and the
Selling Stockholders shall not be required to contribute, more in the
aggregate than the Maximum Amount (as defined below), net of all
amounts reimbursed (for any reason) by the Company or through
insurance policies paid for or held by the Company. 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'
obligation in this Section 7(d) to contribute are several in
proportion to the respective amount of Shares purchased hereunder by
each Underwriter and not joint.
(e)(i) The liability of each Selling Stockholder under this
Section 7, together with any liability for any breach of any
representation, warranty, covenant or other provision of this
Agreement, shall be limited to the proceeds received by such Selling
Stockholder from the sale of such Selling Stockholder's Shares
pursuant to this Agreement, net of (A) underwriting discounts and
commissions paid by such Selling Stockholder to the Underwriters in
connection with such sale, and (B) federal and state income taxes paid
by such Selling Stockholder on the proceeds received by such Selling
Stockholder as a consequence of such sale. The foregoing limitation
for each Selling Stockholder is referred to as the "Maximum Amount."
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(ii) In addition, the liability of each Selling
Stockholder under this Section 7, together with any liability for any
breach of any representation, warranty, covenant or other provision of
this Agreement, shall be proportional based on the ratio that the
number of Shares being sold by such Selling Stockholder bears to the
total number of Shares being sold by all Selling Stockholders;
provided, however, that with respect to the breach of any
representation or warranty in Section 6(b), such liability shall not
be so proportional, no Selling Stockholder shall be liable for the
breach of any such representation or warranty by any other Selling
Stockholder, and each Selling Stockholder shall be liable in full (not
to exceed the Maximum Amount) with respect to any breach thereof by
such Selling Stockholder.
(iii) In addition, in the case of Selling Stockholders
Xxxxxxx X. Xxxxx and The Xxxxx Family Charitable Trust Number 1
(collectively, "Xxxxx") and X. Xxxxxxx Xxxxxxx ("Xxxxxxx"), the
liability of such Selling Stockholder under Section 7(a) above shall
be limited to information relating to such Selling Stockholder
furnished to the Company or the Underwriters by or on behalf of such
Selling Stockholder and incorporated into the Registration Statement,
the Prospectus or any Preliminary Prospectus.
8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the Closing Date and the Additional Shares on any Option Closing Date are
subject to the fulfillment of each of the following conditions on or prior to
the Closing Date and each Option Closing Date:
(a) All the representations and warranties of the
Company and the Selling Stockholders contained in this
Agreement and in any certificate delivered hereunder shall be
true and correct in all material respects on the Closing Date
and each Option Closing Date with the same force and effect as
if made on and as of the Closing Date or Option Closing Date,
as applicable. The Company and the Selling Stockholders shall
not have failed at or prior to the Closing Date or Option
Closing Date, as applicable, to perform or comply in all
respects with any of the agreements herein contained and
required to be performed or complied with by the Company at or
prior to the Closing Date.
(b) If the Registration Statement is not
effective at the time of the execution and delivery of this
Agreement, the Registration Statement shall have become
effective (or, if a post- effective amendment is required to
be filed pursuant to Rule 430A under the Act, such
post-effective amendment shall have become effective) not
later than 9:30 A.M., New York City time, on the date of this
Agreement or such later time as you may approve in writing or,
if the Registration Statement has been declared effective
prior to the execution and delivery hereof in reliance on Rule
430A, the Prospectus shall have been filed as required
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hereby, if necessary; and at the Closing Date and each
applicable Option Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
commenced or shall be pending before or, to the best knowledge
of the Underwriters, the Company or the Selling Stockholders,
threatened by the Commission; every request for additional
information on the part of the Commission shall have been
complied with to the Underwriters' satisfaction.
(c) The legality and sufficiency of the
authorization, issuance and sale or transfer and sale of the
Shares hereunder, the validity and form of the certificates
representing the Shares, the execution and delivery of this
Agreement and all corporate proceedings and other legal
matters incident thereto, and the form of the Registration
Statement and the Prospectus (except financial statements)
shall have been approved by counsel for the Underwriters
exercising reasonable judgment, and no Underwriter shall have
advised the Company that the Registration Statement or the
Prospectus, or any amendment or supplement thereto, contains
an untrue statement of material fact, or omits to state a fact
that in your opinion is material and is required to be stated
therein or is necessary to make the statements therein not
misleading.
(d) Subsequent to the execution and delivery of
this Agreement, there shall not have occurred any material
change, or any material development involving a prospective
change, in or affecting particularly the business or
properties of the Company, whether or not arising in the
ordinary course of business, that, in the judgment of the
Representatives, makes it impractical or inadvisable to
proceed with the public offering or purchase of the Shares as
contemplated hereby.
(e) You shall have received an agreement from
each of the officers and directors of the Company who are not
Selling Stockholders (the "Additional Stockholders"), whereby
each such Additional Stockholder agrees to be bound by an
agreement to substantially the same effect as the covenants
set forth in the last paragraph of Section 3 of this Agreement
(the "Lock-Up Agreements"); it being understood that the
Lock-Up Agreement relating to certain of such Additional
Stockholders may, in the discretion of EVEREN Securities, Inc.
on behalf of the Underwriters (i) cover a period of time not
to exceed 90 days in the case of Xxxx X. Xxxxxxxx and Xxxxx X.
Xxxxxxx, 180 days in the case of Xxxxxx X. Xxxxx and X. Xxxx
Xxxx and 270 days in the case of any other Additional
Stockholder, or (ii) contain limited exceptions for
transactions relating to the satisfaction of personal tax
obligations.
(f) You shall have received an opinion
(satisfactory to you and your counsel) dated the Closing Date
or the Option Closing Date, as the
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case may be, of Xxxxxx Godward LLP, legal counsel for the
Company and the Selling Stockholders.
(g) You shall have received an opinion
(satisfactory to you and your counsel) dated the Closing Date
or the Option Closing Date, as the case may be, of Xxxxxxxxxx,
Black & Cook, LLC, legal counsel for the Company and the
Selling Stockholders.
(h) You shall have received an opinion of Xxxxx &
Xxxxxxx LLP, counsel for the Underwriters, dated the Closing
Date or the Option Closing Date, as the case may be, in form
and substance reasonably satisfactory to you.
(j) You shall have received, in connection with
the execution of this Agreement and on the Closing Date and
each Option Closing Date, a "cold comfort" letter from KPMG
Peat Marwick LLP, dated as of each such date in form and
substance satisfactory to you with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus.
(k) You shall have received from the Company a
certificate, signed by Xxxxxx X. Xxxxx and X. Xxxx Xxxx in
their capacities as Chief Executive Officer and Chief
Financial Officer of the Company, respectively, addressed to
the Underwriters and dated the Closing Date or Option Closing
Date, as applicable to the effect that:
(i) such officer does not know of any
Proceedings instituted, threatened or contemplated
against the Company of a character required to be
disclosed in the Prospectus that are not so
disclosed; such officer does not know of any material
contract required to be filed as an exhibit to the
Registration Statement which is not so filed;
(ii) such officer has carefully examined
the Registration Statement and the Prospectus and all
amendments or supplements thereto and, in such
officer's opinion, such Registration Statement or
such amendment as of its effective date and as of the
Closing Date, and the Prospectus or such supplement
as of its date and as of the Closing Date, did not
contain an untrue statement of material fact or omit
to state a material fact required to be stated
therein or necessary in order to make the statements
therein not misleading and, in such officer's
opinion, since the effective date of the Registration
Statement, no event has occurred or information
become known that should have been set forth in an
amendment to the Registration Statement or a
supplement to the Prospectus which has not been so
set forth in such amendment or supplement;
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(iii) the representations and warranties
of the Company set forth in Section 6(a) of this
Agreement are true and correct as of the date of this
Agreement and as of the Closing Date or the Option
Closing Date, as the case may be, and the Company has
complied with all the agreements and satisfied all
the conditions on its part to be performed or
satisfied at or prior to such Closing Date; and
(iv) the Commission has not issued an
order preventing or suspending the use of the
Prospectus or any preliminary prospectus filed as a
part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness
of the Registration Statement has been issued; and,
to the best knowledge of the respective signers, no
proceedings for that purpose have been instituted or
are pending or contemplated under the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and
warranty of the Company as to the facts required in the
immediately foregoing clauses (iii) and (iv) of this
subparagraph to be set forth in said certificate.
(l) You shall have received from each Selling
Stockholder a certificate, signed by such Selling Stockholder,
addressed to the Underwriters and dated the Closing Date or
Option Closing Date, as applicable, to the effect that the
representations and warranties of the Selling Stockholder set
forth in Section 6 of this Agreement are true and correct as
of the date of this Agreement and as of the Closing Date or
the Option Closing Date, as the case may be, and the Selling
Stockholder has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to such Closing Date.
(m) You and Irell & Xxxxxxx LLP, counsel for the
Underwriters, shall have received on or before the Closing
Date or the Option Closing Date, as the case may be, such
further documents, opinions, certificates and schedules or
instruments relating to the business, corporate, legal and
financial affairs of the Company as you and they shall have
reasonably requested from the Company.
9. Effective Date of Agreement, Termination and Defaults. This
Agreement shall become effective upon, and shall not be deemed delivered until,
the later of (i) execution of this Agreement and (ii) when notification of the
effectiveness of the Registration Statement has been released by the
Commission.
This Agreement may be terminated at any time prior to the Closing Date
and any exercise of the option to purchase Additional Shares may be canceled at
any time
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prior to any Option Closing Date by the Underwriters by written notice to the
Company if any of the following has occurred: (i) since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or development involving a prospective
material adverse change in the condition, financial or otherwise, of the
Company or the earnings, affairs, management, or business of the Company, or
any event or events that could reasonably be expected to result in such a
material adverse change (in any such case, whether or not arising in the
ordinary course of business) that would, in the Representatives' sole judgment,
make it impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus, (ii) any outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States that, in the
Representatives' judgment, is material and adverse and would, in the
Representatives' judgment, make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, (iii) the suspension or
material limitation of trading in securities on the Nasdaq Stock Market, or
limitation on prices for securities on either such exchange or the Nasdaq Stock
Market, (iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority that in the Representatives' opinion materially and
adversely affects, or will materially and adversely affect, the business or
operations of the Company, (v) the declaration of a banking moratorium by
either federal or New York, California, Illinois or Colorado state authorities,
(vi) the taking of any action by any Federal, state or local government or
agency in respect of its monetary or fiscal affairs that in the
Representatives' opinion has a material adverse effect on the financial markets
in the United States or (vii) there shall be any change in financial markets or
in political, economic or financial conditions which, in the opinion of the
Representatives, either renders it impracticable or inadvisable to proceed with
the offering and sale of the Shares on the terms set forth in the Prospectus or
materially adversely affects the market for the Shares.
If on the Closing Date or on any Option Closing Date, as the case may
be, any of the Underwriters shall fail or refuse to purchase the Firm Shares or
Additional Shares, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate number of Firm Shares or Additional
Shares, as the case may be, that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase does not exceed, in the aggregate, 10%
of the total number of Shares that all Underwriters are obligated to purchase
on such date, each non-defaulting Underwriter shall be obligated, in the
proportion which the number of Firm Shares set forth opposite its name in
Schedule II hereto bears to the total number of Firm Shares or Additional
Shares, as the case may be, that all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, on the Closing Date or on the Option Closing Date, as the case may
be, any of the Underwriters shall fail or refuse to purchase the Firm Shares or
Additional Shares, as the case may be, in an amount that exceeds, in the
aggregate, 10% of the total number of the Shares, and arrangements satisfactory
to you and the Company for the
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purchase of such Shares are not made within 48 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters, the Company and the Selling Stockholders, except as otherwise
provided in this Section 9. In any such case that does not result in
termination of this Agreement, either you or the Company may postpone the
Closing Date or the Option Closing Date, as the case may be, for not longer
than seven (7) days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Company, the Selling Stockholders and the
Company's officers and directors set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Shares, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any of the
Underwriters or by or on behalf of the Company or any Selling Stockholder or
the officers or directors of the Company or any controlling person of the
Company, (ii) acceptance of the Shares and payment therefor hereunder or (iii)
termination of this Agreement. Notwithstanding any termination of this
Agreement, the Company shall be liable for and shall pay all expenses it has
agreed to pay pursuant to Section 5.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of, and shall be binding upon, the Company, the Selling
Stockholders, the Underwriters, any indemnified person referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include
a purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
10. Effectiveness of Registration Statement. You, the Company
and the Selling Stockholders will use your, its and their best efforts to cause
the Registration Statement to become effective, if it has not yet become
effective, and to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
11. Miscellaneous. All communications hereunder will be in
writing and, if sent to the Underwriters will be mailed, delivered or
telegraphed and confirmed to you c/o EVEREN Securities, Inc., 00 Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Syndicate Department, with a
copy to Irell & Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.; if sent to the Company
will be mailed, delivered or telegraphed and confirmed to the Company at its
corporate headquarters with a copy to Cooley
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Godward LLP, 0000 Xxxxxx Xxxx., Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxx X.X. Linfield, Esq.; and if sent to the Selling Stockholders will be
mailed, delivered or telegraphed care of the Company, with a copy to, or in any
case to such other address as the person to be notified may have requested in
writing.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAW THEREOF.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters,
including you.
Very truly yours,
AMERICAN COIN MERCHANDISING, INC.,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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Selling Stockholders:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
EVEREN Securities, Inc.
Acting as Representatives of the
several Underwriters named in Schedule II.
By: EVEREN Securities, Inc.
By:
-----------------------------
Xxxx Xxxxxx
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SCHEDULE I
SELLING STOCKHOLDERS
Number of Number of
Selling Stockholder Firm Shares Additional Shares
----------------------------- ----------- -----------------
TOTAL...............................................
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SCHEDULE II
UNDERWRITERS
NUMBER OF
FIRM SHARES
TO BE
UNDERWRITER PURCHASED
----------- -----------
EVEREN Securities, Inc. . . . . . . . . . . . . . . . . . . . . .
Xxxxxxxxx Xxxxxxxx & Co. Inc. . . . . . . . . . . . . . . . . . .
The Xxxxxxx Companies Incorporated . . . . . . . . . . . . . . .
TOTAL
===========
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