EXHIBIT 1.1
XXXXXX XXXXXXX INTERNATIONAL INC.
(a Delaware corporation)
[3,800,000] Shares of Common Stock
UNDERWRITING AGREEMENT
----------------------
____________, 1997
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Rice & Company L.L.C.
As Representatives of
the Several Underwriters
c/x Xxxxxxxxx & Company, Inc.
Attn: Syndicate Department
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Xxxxxxx International Inc., a Delaware corporation (the "Company"),
and the stockholders of the Company identified on Schedule I hereto
(collectively, the "Selling Stockholders"), hereby confirm their agreement with
you, as representatives (the "Representatives") of the underwriters named in
Schedule II hereto (the "Underwriters"), with respect to the issuance and sale
by the Company of [2,300,000] shares and the sale by the Selling Stockholders of
an aggregate of [1,500,000] shares (collectively, the "Firm Shares") of the
Company's Common Stock, $.01 par value per share (the "Common Stock"), and the
purchase of the Firm Shares by the Underwriters, acting severally and not
jointly. The Company also has agreed to sell up to [570,000] shares (the
"Additional Shares") of Common Stock to cover over-allotments, if any. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares".
You have advised us that you desire to purchase the Shares and that you
propose to make a public offering of the Shares as soon as you deem advisable
after the Registration Statement referred to below becomes effective upon the
terms set forth in the Prospectus referred to below.
The terms that follow, when used in this Agreement, shall have the meanings
indicated. "Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a)(i) below and any preliminary prospectus included in
the Registration Statement (as defined below) on the date that the Registration
Statement becomes effective (the "Effective Date") that omits any information
pursuant to Rule 430A (as defined below) or Rule 434 (as defined below).
"Registration Statement" shall mean the registration statement referred to in
Section 1(a)(i) below,
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including financial statements, exhibits and schedules, as amended at the
Representation Date (as defined below) or, if not effective at the
Representation Date, in the form in which it shall become effective, and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date (as defined in Section 2 hereof), shall also mean such registration
statement as so amended. The term "Registration Statement" shall include any
Rule 430A Information (as defined below) deemed to be included therein at the
Effective Date as provided by Rule 430A (as defined below) and any information
deemed to be included therein at the Effective Time pursuant to Rule 434. If the
Company files an additional registration statement to register additional shares
of Common Stock pursuant to Rule 462(b) (defined below) (the "Additional
Registration Statement"), all references in this Underwriting Agreement to
"Registration Statement" shall include the Additional Registration Statement, as
amended at the Effective Date, including the contents of the initial
registration statement incorporated by reference therein and including all
information (if any) deemed to be a part of the Additional Registration
Statement as of its effective time pursuant to Rule 430A(b). The final
prospectus constituting a part of the Registration Statement (including the Rule
430A Information), and any prospectus subject to completion meeting the
requirements of Rule 434 under the Act provided by the Company with any term
sheet meeting the requirements of Rule 434 as the prospectus provided to meet
the requirements of Section 10(a) of the Act, as from time to time amended or
supplemented, is hereinafter referred to as the "Prospectus", except that if any
revised prospectus shall be provided to the Underwriters by the Company that
differs from the prospectus on file at the Securities and Exchange Commission
(the "Commission") at the Effective Date (whether or not such revised prospectus
is required to be filed by the Company pursuant to Rule 424 of the Act
Regulations (as defined below)), the term "Prospectus" shall refer to each such
revised prospectus from and after the time it is first provided to the
Underwriters for such use. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement of any of the foregoing shall include the copy thereof
filed with the Commission pursuant to the Commission's Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX"). "Rule 158", "Rule 424",
"Rule 430A", "Rule 434", "Rule 462" and "Regulation S-K" refer to such rules or
regulation under the Securities Act of 1933, as amended (the "Act"; and the
rules and regulations under the Act, the "Act Regulations"). "Rule 430A
Information" means information with respect to the Shares and the offering
thereof permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. "Exchange Act" refers to the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriters as of the date
hereof (such date being referred to as the "Representation Date") and as of the
Closing Date, as follows:
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(i) The Company has filed with the Commission a registration statement
on Form S-1 (Registration No. 333-27599), including a related preliminary
prospectus, and one or more amendments thereto, including the related
preliminary prospectus, each of which has previously been furnished to the
Underwriters, for the registration under the Act of the offering and sale
of the Shares. The Company will file with the Commission either (A) prior
to effectiveness of such registration statement, a further amendment to
such registration statement (including the form of Prospectus), or (B)
after effectiveness of such registration statement, a Prospectus in
accordance with Rules 430A and 424(b) or Rule 434 of the Act Regulations.
The Company has included in such registration statement, as amended at the
Effective Date, all information (other than any Rule 430A Information or
any information omitted pursuant to Rule 434, in the case of clause (B))
required by the Act and the Act Regulations to be included in the
Prospectus with respect to the Shares and the offering thereof. As filed,
such further amendment or such form of Prospectus, as the case may be,
shall contain all Rule 430A Information, together with all other required
information, with respect to the Shares and the offering thereof and,
except to the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
the Underwriters prior to the date hereof.
(ii) On the Effective Date, the Representation Date and the Closing
Date, the Registration Statement did and will, and when the Prospectus is
first filed (if required) in accordance with Rule 424(b) the Prospectus
will, comply in all material respects with the applicable requirements of
the Act and the Act Regulations; on the Effective Date, the Representation
Date and the Closing Date, the Registration Statement did not and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, the
Representation Date and the Closing Date, and on the date of any filing
pursuant to Rule 424(b), the Prospectus did not and will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, that the Company makes no representation or warranty
as to the information provided in writing to the Company by or on behalf of
the Underwriters, expressly for use in the Registration Statement or the
Prospectus, and the Company agrees that the only information provided in
writing by or on behalf of the Underwriters to the Company, expressly for
use in the Registration Statement or the Prospectus, is that information
contained in the table and the second, third, fifth and eighth paragraphs
following the table in the section of the Prospectus entitled
"Underwriting" and the last paragraph on the cover page of the Prospectus.
If Rule 434 is used, the Company will comply with the requirements of such
rule. Each
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Preliminary Prospectus and the Prospectus was identical to the
electronically transmitted copy thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted under Regulation S-T of the
Commission.
(iii) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware, with
full corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and
the Prospectus, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction where the nature or
location of its properties (owned or leased) or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify would not have a Material Adverse Effect. As used
herein, the term "Material Adverse Effect" shall mean an adverse effect on
the condition (financial or other), business, properties, net worth or
results of operations of the Company or any of the Subsidiaries (as
hereinafter defined) that would be, singly or in the aggregate, material to
the Company and the Subsidiaries, taken as a whole, whether or not
occurring in the ordinary course of business (a "Material Adverse Effect").
(iv) The only significant subsidiaries (as defined in the Act
Regulations) of the Company are the subsidiaries listed on Schedule III
hereto (collectively, the "Subsidiaries"). Each of the Subsidiaries is a
corporation duly organized and validly existing in good standing under the
laws of its jurisdiction of incorporation with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and in the Prospectus,
and is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction where the nature or location of its
properties (owned or leased) or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify would not have a Material Adverse Effect.
(v) Each of the Company and the Subsidiaries has all necessary
authorizations, approvals, orders, licenses, rights-of-way, operating
rights, easements, certificates and permits of and from, and has made all
declarations and filings with, all regulatory or governmental officials and
bodies, all self-regulatory organizations and all courts and other
tribunals ("Permits"), to own or lease its respective properties and to
conduct its respective businesses described in the Prospectus and the
Registration Statement, except where failure to have obtained or made the
same would not have a Material Adverse Effect, and neither the Company nor
any of the Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Permits, if the failure to be so
licensed or
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approved or if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect. The Company and each of the
Subsidiaries has fulfilled and performed all its current 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. Such Permits contain no
restrictions that are materially burdensome to the Company and the
Subsidiaries; and the Company and each of the Subsidiaries is in compliance
with all applicable laws, rules, regulations, orders and consents, the
violation of which could have a Material Adverse Effect. The property and
business of the Company and the Subsidiaries conform in all material
respects to the descriptions thereof contained in the Prospectus and the
Registration Statement.
(vi) All of the Company's authorized and outstanding capital stock has
been duly authorized and validly issued and is fully paid and nonassessable
and the capitalization of the Company conforms to the descriptions thereof
and the statements made with respect thereto in the Registration Statement
and the Prospectus as of the date set forth therein. There are no
outstanding securities convertible into or exchangeable for, and no
outstanding options, warrants or other rights to purchase, any shares of
the capital stock of the Company, nor any agreements or commitments to
issue any of the same, except as described in the Registration Statement
and the Prospectus, and there are no preemptive or other rights to
subscribe for or to purchase, and no restrictions upon the voting or
transfer of, any capital stock of the Company pursuant to the Company's
restated certificate of incorporation or bylaws or any agreement or other
instrument to which the Company is a party, except as described in the
Registration Statement and the Prospectus.
(vii) All the outstanding shares of capital stock of each Subsidiary
have been duly authorized and are validly issued, fully paid and
nonassessable and were not issued in violation of or subject to any
preemptive or similar rights. All outstanding shares of capital stock of
the Subsidiaries are owned by the Company directly, free and clear of any
security interests, liens, encumbrances, equities or other claims.
(viii) Each of the Company and the Subsidiaries has good and
indefeasible title to all real property and good and marketable title to
all personal property owned by it, including those properties described in
the Registration Statement and Prospectus, in each case free and clear of
all liens, charges, encumbrances and restrictions, except such as are
described in the Registration Statement and Prospectus or such as would not
have a Material Adverse Effect. Each of the Company and the Subsidiaries
has valid, subsisting and enforceable leases for the properties described
in the Registration Statement and the
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Prospectus as leased by it, with such exceptions as are described in the
Registration Statement and the Prospectus or as would not in the aggregate
have a Material Adverse Effect.
(ix) The Company has all requisite power, authority, authorizations,
approvals, orders, licenses, certificates and permits to enter into this
Agreement and to carry out the provisions and conditions hereof, and to
issue and deliver the Shares being sold by it to the Underwriters as
provided herein. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable against it in accordance with the
terms hereof, except to the extent rights to indemnity and contribution
hereunder may be limited by federal or state securities laws or public
policy underlying such laws and except to the extent the enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting creditors' rights generally or by
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(x) Each of the Company and the Subsidiaries owns, or possesses
adequate rights to use, all trademarks, trade names, service marks,
patents, copyrights, confidential information and other similar rights
necessary for the conduct of its business as currently conducted or as
planned to be conducted and as described in the Registration Statement and
the Prospectus, and neither the Company nor any of the Subsidiaries has
received a notice, or knows of any basis, of any conflict with the asserted
rights of others in any such respect that could have a Material Adverse
Effect.
(xi) The Shares to be issued and sold by the Company have been duly
and validly authorized for issuance by the Company, and the Company has
full corporate power and authority to issue, sell and deliver the Shares;
and, when such Shares are issued and delivered against payment therefor as
provided by this Agreement, the Shares will have been validly issued, fully
paid and nonassessable, and the issuance of such Shares will not be subject
to any statutory preemptive rights or similar statutory rights or any other
preemptive or similar rights. All corporate action required to be taken by
the Company for the authorization, issuance and sale of the Shares being
sold by it has been duly and validly taken.
(xii) Xxxxxx Xxxxxxxx LLP are independent accountants with respect to
the Company and the Subsidiaries as required by the Act.
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(xiii) The financial statements and related notes and schedules
included in the Registration Statement and the Prospectus present fairly
the financial position of the Company and the Subsidiaries as of the
respective dates thereof and the results of operations and cash flows of
the Company and the Subsidiaries for the respective periods covered
thereby; and such financial statements and the related schedules and notes
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire period
involved, except as otherwise disclosed in the Registration Statement and
the Prospectus. The selected financial information included in the
Registration Statement and the Prospectus presents fairly the information
shown therein and has been compiled on a basis consistent with that of the
audited financial statements included therein. The pro forma financial
information in the Registration Statement and the Prospectus complies in
all material respects with the applicable accounting requirements of
Regulation S-X promulgated by the Commission and presents fairly the
information shown therein; the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein. No other
financial statements or schedules of the Company and the Subsidiaries are
required by the Exchange Act, the Act or the Act Regulations to be included
in the Registration Statement or Prospectus.
(xiv) The Shares conform in all material respects to the descriptions
thereof in the Registration Statement and Prospectus.
(xv) Since the respective dates as of which information is provided in
the Registration Statement and Prospectus, except as otherwise specifically
stated therein, there has been no change or development with respect to the
condition (financial or otherwise) or business of the Company and the
Subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, that would have a Material Adverse Effect.
(xvi) Neither the Company nor any Subsidiary is in violation of its
certificate of incorporation or bylaws or other organizational documents.
Neither the Company nor any Subsidiary is, nor with the passage of time or
the giving of notice or both would be, in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company
or any of the Subsidiaries, or of any judgment, order or decree of any
court or governmental agency or body or of any arbitrator having
jurisdiction over the Company or any of the Subsidiaries, or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any mortgage, loan agreement, note, bond, debenture,
credit agreement or any other evidence of indebtedness or in any agreement,
contract, indenture, lease or other instrument to which the Company
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or any of the Subsidiaries is a party or by which it may be bound, or to
which any of the property or assets of the Company or any of the
Subsidiaries is subject, the effect of which violation or default in
performance or observance would have a Material Adverse Effect.
(xvii) There is no action, suit or proceeding pending before or by
any court, arbitrator or governmental agency or body or, to the Company's
knowledge, threatened against the Company or any of the Subsidiaries or to
which any of their respective property is subject (A) that is required to
be described in the Registration Statement or the Prospectus but is not
described as required or (B) that, if adversely determined, could
reasonably be expected to have a Material Adverse Effect. There is no
agreement, contract, indenture, lease or other document or instrument that
is required to be described in the Registration Statement or Prospectus or
to be filed as an exhibit to the Registration Statement that is not
described or filed as required.
(xviii) No person has any right to the registration of any security
of the Company by reason of the filing of the Registration Statement with
the Commission or the consummation of the transactions contemplated hereby,
which right has not been waived or lapsed.
(xix) The Company is not an "investment company" within the meaning
of the Investment Company Act of 1940 and is not subject to registration
under such Act.
(xx) As of the date of the Prospectus, neither the Company nor any of
the Subsidiaries currently is planning any probable acquisitions for which
disclosure of pro forma financial information would be required by the Act.
(xxi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as otherwise stated therein, (A) neither the
Company nor any of the Subsidiaries (1) has issued any securities other
than in connection with the exercise of any outstanding options described
in the Registration Statement and the Prospectus, (2) incurred any material
liability or obligation, direct or contingent, for borrowed money, (3)
entered into any transaction, not in the ordinary course of business, that
is material to the Company and the Subsidiaries, taken as a whole, (4)
entered into any transaction with an affiliate of the Company (as the term
"affiliate" is defined in Rule 405 of the Act Regulations) that is required
to be disclosed in the Prospectus or the Registration Statement, or (5)
declared or paid any dividend on its capital stock, or made any other
distribution to its equity holders, (B) there has not been any material
change in the capital stock or other equity,
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or material increase in the short-term or long-term debt, of the Company or
any of the Subsidiaries and (C) there has been no change or development
with respect to the condition (financial or otherwise) or business of the
Company and the Subsidiaries, taken as a whole, whether or not arising in
the ordinary course of business, that would have a Material Adverse Effect.
(xxii) The Company has not distributed and, prior to the later to
occur of (A) the Closing Date and (B) completion of the distribution of the
Shares, will not distribute without your prior written consent any offering
material in connection with the offering and sale of the Shares other than
the Registration Statement, the Prospectus or other materials, if any,
permitted by the Act.
(xxiii) The Company has filed an application to list the Shares on
the Nasdaq National Market, and has received notification that the listing
has been approved, subject to notice of issuance and delivery of the
Shares.
(xxiv) Neither the Company nor any Subsidiary is involved in any
labor dispute and, to the knowledge of the Company, no such dispute is
threatened.
(xxv) Neither the Company nor any Subsidiary nor, to the best of its
knowledge, any employee or agent of the Company or any Subsidiary has made
any payment of funds of the Company or any Subsidiary or received or
retained any funds of a character required to be disclosed in the
Prospectus.
(xxvi) Each of the Company and the Subsidiaries have filed (or have
obtained extensions thereto) all federal, state and local or foreign tax
returns that are required to be filed, which returns are complete and
correct in all material respects, and have paid all taxes shown on such
returns and all assessments with respect thereto to the extent that the
same have become due.
(xxvii) Except for the shares of capital stock of each of the
Subsidiaries, neither the Company nor any of the Subsidiaries owns any
shares of stock or any other securities of any corporation or has any
equity interest in any firm, partnership, association or other entity other
than as reflected in the financial statements included in the Registration
Statement and the Prospectus.
(xxviii) Neither the execution, delivery or performance of this
Agreement, the offer, issuance, sale or delivery of the Shares nor the
consummation by the Company
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of the terms of this Agreement (A) requires the consent, approval,
authorization or order of any court or governmental agency or body, except
such as have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters or such as may be required
by the National Association of Securities Dealers, Inc. (the "NASD") and
such other approvals as have been obtained, (B) will conflict with, result
in a breach of, or constitute a default under the terms of any indenture,
agreement, lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of the Subsidiaries pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of them may be
bound or to which any of the property or assets of any of them is subject,
(C) will conflict with or violate any law, order, statute, regulation,
consent or memorandum of understanding applicable to the Company or any
Subsidiary of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or any
of the Subsidiaries (in the case of (B) or (C) above, where such conflict,
breach, default or violation, individually or in the aggregate, would have
a Material Adverse Effect), or (D) will conflict with or violate the
certificate of incorporation or bylaws or other organizational documents of
the Company or any Subsidiary.
(xxix) The Company has not taken, directly or indirectly, any action
designed to cause or result in or that has constituted, or that might
reasonably be expected to constitute, the stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the
Shares.
(xxx) The Company is not required to comply with Section 517.075 of
the Florida statutes.
(xxxi) Each of the Company and the Subsidiaries (A) is in compliance
with any and all applicable federal, state, local and foreign laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) has received all permits, licenses
or other approvals required of it under applicable Environmental Laws to
conduct its business and (C) is in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses or
approvals or failure to comply with the
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terms and conditions of such permits, licenses or approvals would not have
a Material Adverse Effect.
(xxxii) There are no costs or liabilities, to the Company's knowledge
after due inquiry, associated with the effect of Environmental Laws on the
business, operations or properties of the Company and its Subsidiaries that
would have a Material Adverse Effect.
(xxxiii) The election by HAM Marine, Inc. and the consent to such
election by its stockholders (and, if applicable, by the spouses of such
stockholders) to cause such company to be taxed as an S corporation as
provided in Section 1362 of the Internal Revenue Code of 1986, as amended
(and the predecessor Code) (the "Code"), was valid and effective at all
times from ________________, 1982 through and including ________________,
1997, the date such election was terminated in connection with the offering
and sale of the Shares, and neither the Internal Revenue Service nor any
other person or entity has challenged or indicated a present intention to
challenge the status of such company as an S corporation during any portion
of such period; and HAM Marine, Inc. has incurred no liability for taxes
under Section 1374 or 1375 of the Code during or for any year in such
period.
(xxxiv) The election by Xxxxxx & Xxxxxxx, Ltd. and the consent to
such election by its stockholders (and, if applicable, by the spouses of
such stockholders) to cause such company to be taxed as an S corporation as
provided in Section 1362 of the Code, was valid and effective at all times
from ________________, 1996 through and including _______________, 1997,
the date such election was terminated in connection with the offering and
sale of the Shares, and neither the Internal Revenue Service nor any other
person or entity has challenged or indicated a present intention to
challenge the status of such company as an S corporation during any portion
of such period; and Xxxxxx & Xxxxxxx, Ltd. has incurred no liability for
taxes under Section 1374 or 1375 of the Code during or for any year in such
period.
(b) Each Selling Stockholder severally represents and warrants to the
Underwriters as of the Representation Date and as of the Closing Date, as
follows:
(i) The Selling Stockholder now has, and on the Closing Date will
have, valid and marketable title to the Shares to be sold by the Selling
Stockholder pursuant to this Agreement, free and clear of any security
interests, liens, encumbrances, equities or other claims, including,
without limitation, any restriction on transfer (except for restrictions
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imposed by applicable federal or state securities laws) other than as
specified on the certificate(s) representing such Shares.
(ii) The Selling Stockholder now has, and on the Closing Date will
have, full legal right, power and authorization, and any approval required
by law (except such as may be required under the Act or such as may be
required by the NASD or under state securities or blue sky laws governing
the purchase and distribution of the Shares), to sell, assign, transfer and
deliver the Shares to be sold by the Selling Stockholder pursuant to this
Agreement in the manner provided in this Agreement, and upon delivery of
and payment for such Shares hereunder, the several Underwriters will
acquire valid and marketable title to such Shares free and clear of any
adverse claims, assuming that the Underwriters have acquired such Shares
for value, in good faith and without notice of any adverse claim.
(iii) This Agreement has been duly authorized, executed and delivered
by or on behalf of the Selling Stockholder and is the valid and binding
agreement of the Selling Stockholder enforceable against the Selling
Stockholder in accordance with its terms except (A) as limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or other law
relating to or affecting creditors' rights generally, (B) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (C) as such
enforceability of rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or public policy underlying
such laws.
(iv) Neither the execution and delivery of this Agreement by or on
behalf of the Selling Stockholder nor the consummation of the transactions
herein contemplated by or on behalf of the Selling Stockholder requires any
consent, approval, authorization or order of, or filing or registration
with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required under
the Act or such as may be required by the NASD or under state securities or
blue sky laws governing the purchase and distribution of the Shares) or
conflicts or will conflict with or constitutes or will constitute a breach
of, or default under, or violates or will violate, any agreement, indenture
or other instrument to which the Selling Stockholder is a party or by which
the Selling Stockholder is or may be bound or to which any of the Selling
Stockholder's property or assets is subject, or any statute, law, rule,
regulation, ruling, judgment, injunction, order or decree applicable to the
Selling Stockholder or to any property or assets of the Selling
Stockholder, which breach, default or violation would impair the Selling
Stockholder's ability to perform under this Agreement and would have any
adverse impact on the Company or the Underwriters under this Agreement.
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc
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, 1997
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(v) The information with respect to the Selling Stockholder contained
in the section entitled "Principal and Selling Stockholders" in the
Prospectus does not and will not on the Closing Date contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(vi) The Selling Stockholder has not taken, directly or indirectly,
any action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares, except for the lock-up
arrangements described in the Prospectus.
(vii) The election by HAM Marine, Inc. and the consent to such
election by its stockholders (and, if applicable, by the spouses of such
stockholders) to cause such company to be taxed as an S corporation as
provided in Section 1362 of the Code, was valid and effective at all times
from ________________, 1982 through and including ________________, 1997,
the date such election was terminated in connection with the offering and
sale of the Shares, and neither the Internal Revenue Service nor any other
person or entity has challenged or indicated a present intention to
challenge the status of such company as an S corporation during any portion
of such period; and HAM Marine, Inc. has incurred no liability for taxes
under Section 1374 or 1375 of the Code during or for any year in such
period.
(viii) The election by Xxxxxx & Xxxxxxx, Ltd. and the consent to such
election by its stockholders (and, if applicable, by the spouses of such
stockholders) to cause such company to be taxed as an S corporation as
provided in Section 1362 of the Code, was valid and effective at all times
from ________________, 1996 through and including _______________, 1997,
the date such election was terminated in connection with the offering and
sale of the Shares, and neither the Internal Revenue Service nor any other
person or entity has challenged or indicated a present intention to
challenge the status of such company as an S corporation during any portion
of such period; and Xxxxxx & Xxxxxxx, Ltd. has incurred no liability for
taxes under Section 1374 or 1375 of the Code during or for any year in such
period.
(ix) Certificates in negotiable form for the Selling Stockholder's
Shares have been placed in custody, for delivery pursuant to the terms of
this Agreement, under a Power of Attorney and Custody Agreement duly
authorized, executed and delivered by the Selling Stockholder, in the form
heretofore furnished to you (the "Custody Agreement"), with
_____________________, as Custodian (the "Custodian"); the Shares
represented by
Xxxxxxxxx & Company, Inc.
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Page 14
the certificates so held in custody for the Selling Stockholder are subject
to the interests hereunder of the Underwriters, the Company and the other
Selling Stockholders; the arrangements for custody and delivery of such
certificates, made by the Selling Stockholder hereunder and under the
Custody Agreement, are not subject to termination by any acts of the
Selling Stockholder, or by operation of law or the occurrence of any other
event; and if any such other event shall occur before the delivery of such
Shares hereunder, certificates for the Shares will be delivered by the
Custodian in accordance with the terms and conditions of this Agreement and
the Custody Agreement as if such other event had not occurred, regardless
of whether or not the Custodian shall have received notice of such other
event.
(c) Any certificate signed by any officer of the Company or any Selling
Stockholder delivered to the Underwriters or to counsel for the Underwriters
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by the Company or such Selling Stockholder, as the case may be, to each
Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) Subject to the terms and conditions set forth herein:
(i) The Company agrees to sell to each Underwriter, severally and not
jointly, and, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, each
Underwriter, severally and not jointly, agrees to purchase from the
Company, at a purchase price of $___________ per share (the "Initial
Price"), the aggregate number of Firm Shares that bears the same proportion
to the aggregate number of Firm Shares to be issued and sold by the Company
as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule II (or such number of Firm Shares increased as
provided in Section 9 hereof) bears to the aggregate number of Firm Shares
to be sold by the Company and the Selling Stockholders, subject to such
adjustment as the Representatives may approve to eliminate fractional
shares. The Company will have no obligation to sell to the Underwriters
any of such Firm Shares that are being issued and sold by the Company
hereunder unless the Underwriters purchase all of the Firm Shares
hereunder.
(ii) Each Selling Stockholder agrees, severally and not jointly, to
sell to each Underwriter, severally and not jointly, and, on the basis of
the representations and warranties herein contained and subject to the
terms and conditions herein set forth, each Underwriter, severally and not
jointly, agrees to purchase from each Selling Stockholder
Xxxxxxxxx & Company, Inc.
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Page 15
at the Initial Price, the aggregate number of Firm Shares that bears the
same proportion to the aggregate number of Firm Shares to be sold by such
Selling Stockholder as the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto (or such number of Firm
Shares increased as provided in Section 9 hereof) bears to the aggregate
number of Firm Shares to be sold by the Company and the Selling
Stockholders, subject to such adjustment as the Representatives may approve
to eliminate fractional shares. No Selling Stockholder will have any
obligation to sell to the Underwriters any of the Firm Shares to be sold by
such Selling Stockholder hereunder unless the Underwriters purchase all of
the Firm Shares hereunder.
(b) The Company grants to the Underwriters an option to purchase all or any
part of the Additional Shares at the Initial Price. Additional Shares shall be
purchased from the Company, severally and not jointly, for the accounts of the
Underwriters in proportion to the number of Firm Shares set forth in Schedule II
hereto opposite the name of such Underwriter. Such option may be exercised only
to cover over-allotments in the sale of the Firm Shares by the Underwriters and
may be exercised in whole or in part at any time on or before 12:00 noon, New
York City time, on the business day before the Firm Shares Closing Date (as
hereinafter defined), and only once thereafter within 30 days after the date of
the Prospectus, in each case upon written or telegraphic notice, or oral or
telephonic notice confirmed by written or facsimile notice, by the Underwriters
to the Company no later than 12:00 noon, New York City time, on the business day
before the Firm Shares Closing Date or at least two business days before the
Additional Shares Closing Date (as hereinafter defined), as the case may be,
setting forth the number of Additional Shares to be purchased and the time and
date (if other than the Firm Shares Closing Date) of such purchase.
(c) Payment of the purchase price for, and delivery of, the Firm Shares
shall be made at the offices of Xxxxxxxxx & Company, Inc., 00 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the
Underwriters and the Company, at 10:00 A.M., New York City time, on the third
(or, if pricing occurs after 4:30 p.m., New York City time, on any given day, on
the fourth) business day following the date hereof, or such other time not later
than 10 business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Firm Shares Closing Date"). Payment shall be made to the
Company and the Selling Stockholders, as the case may be, by certified or
official bank check or checks drawn in New York Clearing House funds (or similar
next day funds) or by wire transfer in next day funds payable to the order of
the Company or the Selling Stockholders, as applicable, against delivery to the
Underwriters of the Firm Shares.
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
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Page 16
(d) Payment of the purchase price for, and delivery of, the Additional
Shares to be purchased by the Underwriters shall be made at the office as set
forth above or at such other place as shall be agreed upon by the Underwriters
and the Company at the time and on the date (which may be the same as, but in no
event shall be earlier than, the Firm Shares Closing Date) specified in the
notice referred to in Section 2(b) (such time and date of delivery and payment
being herein called the "Additional Shares Closing Date"). The Firm Shares
Closing Date and the Additional Shares Closing Date are called, individually,
the "Closing Date" and together, the "Closing Dates". Payment shall be made to
the Company by certified or official bank check or checks drawn in New York
Clearing House funds (or similar next day funds) or by wire transfer in next day
funds payable to the order of the Company against delivery to the Underwriters
of the Additional Shares.
(e) Certificates representing the Shares shall be in such denominations and
registered in such names as the Underwriters may request in writing at least two
business days before the Firm Shares Closing Date or, in the case of Additional
Shares, on the day of notice of exercise of the option as described in Section
2(b). The certificates representing the Shares will be made available for
examination and packaging by the Underwriters not later than 1:00 P.M., New York
City time, on the last business day prior to the Firm Shares Closing Date (or
the Additional Shares Closing Date in the case of the Additional Shares) at such
place as is designated by the Underwriters.
SECTION 3. Covenants of the Company. The Company covenants with each of
the Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Representation Date, and any amendment
thereof, to become effective, as promptly as possible after the filing thereof.
The Company will not file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, any term sheet under Rule 434, or any
Additional Registration Statement, to which the Underwriters shall object in
writing after a reasonable opportunity to review such amendment, supplement,
term sheet or registration statement. Subject to the foregoing sentences in
this clause (a), if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus or supplement to the
Prospectus is otherwise required under Rule 424(b), the Company will cause the
Prospectus, properly completed, or such supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Underwriters of
such timely filing. The Company will promptly advise the Underwriters (i) when
the Registration Statement, if not effective at the Representation Date, and any
amendment thereto, shall have become effective, (ii) when the
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Page 17
Prospectus, and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b), (iii) when any amendment to the
Registration Statement shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the Registration Statement or
supplement to any Prospectus or for any additional information, (v) of the
receipt by the Company of any notification of, or if the Company otherwise has
knowledge of, the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the lifting
thereof.
(b) If, at any time when a prospectus relating to the Shares is required to
be delivered under the Act or the Act Regulations, any event occurs as a result
of which the Prospectus as then amended or supplemented would contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall be
necessary to amend the Registration Statement or amend or supplement the
Prospectus to comply with the Act or the Act Regulations, the Company promptly
will prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 3, an amendment or supplement that will correct
such statement or omission or effect such compliance. Neither your consent to,
nor your delivery of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 5.
(c) The Company consents to the use of the Prospectus in accordance with
the provisions of the Act and with the securities or blue sky laws of the
jurisdictions in which the Shares are offered by the Underwriters and by all
dealers to whom Shares may be sold, both in connection with the offering and
sale of the Shares and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with the sales by any
Underwriter or dealer. The Company will comply with all requirements imposed
upon it by the Act, as now and hereafter amended, so far as necessary to permit
the continuance of sales of or dealing in the Shares in accordance with the
provisions hereof and the Prospectus.
(d) As soon as practicable, the Company will make generally available to
its security holders and to the Underwriters a consolidated earnings statement
or statements of the Company and the Subsidiaries covering a 12-month period
beginning after the Effective Date that will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act Regulations.
Xxxxxxxxx & Company, Inc.
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Xxxxxxx Xxxx & Company L.L.C.
, 1997
Page 18
(e) The Company will furnish to the Representatives, without charge, five
signed copies of the Registration Statement (including exhibits thereto and all
documents incorporated by reference therein) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, or the Act
Regulations, as many copies of the Prospectus and all amendments and supplements
thereto as the Underwriters may reasonably request. The Prospectus and any
amendments or supplements thereto will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T of the Commission.
(f) During the period of five years hereafter, the Company will furnish to
you, as soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year; and the Company will furnish to you
(i) as soon as available, a copy of each report or definitive proxy statement of
the Company filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information concerning the
Company as you may reasonably request, provided that prior to the Company's
furnishing any such other information that is nonpublic you shall enter into
such agreement respecting the confidentiality thereof as the Company may
reasonably request.
(g) The Company will not, and will cause each of its executive officers and
directors to enter into agreements with the Underwriters in the form set forth
in Exhibit A to the effect that they will not, for a period of 180 days
following the date of the Prospectus, without the prior written consent of
Xxxxxxxxx & Company, Inc., offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any shares of Common
Stock or any securities convertible into, or exchangeable for, shares of Common
Stock; provided, however, that the Company may issue and sell Common Stock
pursuant to any stock bonus plan, stock grant plan or stock option plan in
effect as of the date of the Prospectus.
(h) The Company will comply with all the provisions of any undertakings
contained in the Registration Statement.
(i) The Company will not at any time, directly or indirectly, take any
action intended, or that might reasonably be expected, to cause or result in, or
that will cause, stabilization of the price of the shares of Common Stock to
facilitate the sale or resale of any of the Shares.
(j) The Company will apply the net proceeds from the offering and sale of
the Shares to be sold by the Company in accordance with the description set
forth in the "Use of Proceeds" section of the Prospectus and shall file such
reports with the Commission with respect to the sale of the Shares and the
application of the proceeds therefrom as may be required by Rule 463 under
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Xxxxxxx Xxxx & Company L.L.C.
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Page 19
the Act. The Company shall provide you a draft of each such report prior to its
filing for your approval, and shall furnish you with a signed copy of each such
report.
(k) The Company will cooperate with the Underwriters and their counsel in
connection with endeavoring to obtain and maintain the qualification or
registration, or exemption from qualification, of the Shares for offer and sale
under the applicable securities laws of such states and other jurisdictions of
the United States as the Underwriters may designate; provided, that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
taxation or general service of process in any jurisdiction where it is not now
so subject. In each jurisdiction in which the Shares are so qualified, the
Company will file all such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration Statement and
any Additional Registration Statement.
SECTION 4. Covenants of the Selling Stockholders. Each Selling
Stockholder covenants with each of the Underwriters as follows:
(a) The Selling Stockholder shall cooperate to the extent reasonably
necessary to cause the Registration Statement, if not effective at the
Representation Date, and any amendment thereof, to become effective, as promptly
as possible after the filing thereof.
(b) Without prejudice to any rights the Selling Stockholder may have
against the Company, the Selling Stockholder shall pay all federal and other
taxes, if any, on the transfer or sale of the Shares being sold by the Selling
Stockholder to the Underwriters.
(c) The Selling Stockholder shall do or perform all things required to be
done or performed by the Selling Stockholder prior to the Firm Shares Closing
Date to satisfy all conditions precedent to the delivery of and the payment for
the Shares to be sold by the Selling Stockholder pursuant to this Agreement.
(d) The Selling Stockholder will enter into an agreement with the
Underwriters in the form set forth in Exhibit A to the effect that the Selling
Stockholder will not, for a period of 180 days following the date of the
Prospectus, without the prior written consent of Xxxxxxxxx & Company, Inc.,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any shares of Common Stock or any
securities convertible into, or exchangeable for, shares of Common Stock.
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxx & Company L.L.C.
, 1997
Page 20
(e) The Selling Stockholder will not at any time, directly or indirectly,
take any action intended, or that might reasonably be expected, to cause or
result in, or that will cause, stabilization of the price of the shares of
Common Stock to facilitate the sale or resale of any of the Shares.
(f) The Selling Stockholder will advise the Representatives promptly, and
if requested by the Representatives will confirm such advice in writing, of any
change in the information relating to the Selling Stockholder contained in the
Registration Statement under the caption "Principal and Selling Stockholders".
SECTION 5. Payment of Expenses. The Company will pay, or reimburse if
paid by the Underwriters, all costs and expenses incident to the performance of
the obligations of the Company and the Selling Stockholders under this
Agreement, including (i) the fees, disbursements and expenses of counsel and
accountants for the Company and the Selling Stockholders and all other expenses
in connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto, and the mailing and delivery of copies thereof to the
Underwriters and dealers, (ii) the cost of printing the Agreement Among
Underwriters, this Agreement, the Selling Agreement, any Dealer Agreements, the
Underwriters' Questionnaire and the Blue Sky Memorandum (in both preliminary and
final form); (iii) all expenses in connection with qualification of the Shares
for offering and sale under state securities laws as provided in Section 3(k)
hereof, including filing and registration fees and the fees, disbursements and
expenses of counsel for the Underwriters in connection with such qualification
and in connection with Blue Sky surveys; (iv) the filing fees incident to
securing any required review by the NASD; (v) the cost of preparing stock
certificates; (vi) all fees of the Company's transfer agent and registrar; (vii)
any fees for listing the Shares on the Nasdaq National Market; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder that are not otherwise specifically provided for in this Section.
If this Agreement is terminated by the Underwriters because of any failure
or refusal on the part of the Company or the Selling Stockholders to comply with
the terms or fulfill any of the conditions of this Agreement, the Company shall
reimburse the Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
The Company shall not in any event be liable to any of the Underwriters for
consequential damages including loss of anticipated profits from the
transactions covered by this Agreement.
SECTION 6. Conditions of the Underwriters' Obligation. The obligation of
the Underwriters to purchase the Shares hereunder is subject to the continued
accuracy of the
Xxxxxxxxx & Company, Inc.
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, 1997
Page 21
representations and warranties of the Company and the Selling Stockholders
herein contained, to the accuracy of the statements of the Company and the
Selling Stockholders made in any certificates pursuant to the provisions hereof,
to the performance by the Company and the Selling Stockholders of their
obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective, and you shall
have received notice thereof, not later than 5:30 p.m., Washington D.C. time, on
the date hereof, or such later time and date as shall be approved by the
Representatives and the Company, and shall remain effective at the Closing Date.
No stop order suspending the effectiveness of the Registration Statement shall
have been issued under the Act or proceedings therefor initiated or threatened
by the Commission. No order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Shares under the
securities or blue sky laws of any jurisdiction shall be in effect or
proceedings therefor initiated or threatened by the Commission or the
authorities of any such jurisdiction. If the Company has elected to rely upon
Rule 430A, the price of the Shares and any price-related or other information
previously omitted from the effective Registration Statement pursuant to Rule
430A shall have been transmitted to the Commission for filing pursuant to Rule
424(b) within the prescribed time period, and, prior to the Closing Date, the
Company shall have provided evidence satisfactory to the Underwriters of such
timely filing, or a post-effective amendment providing such information shall
have been promptly filed and declared effective in accordance with the
requirement of Rule 430A.
(b) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting particularly the business, properties, condition
(financial or other) or results of operations of the Company and the
Subsidiaries, taken as a whole, which, in the reasonable judgment of the
Underwriters, materially impairs the investment quality of the Shares and
constitutes a Material Adverse Effect; (ii) any material loss or interference
with the business or properties of the Company or any of the Subsidiaries from
fire, explosion, flood or other casualty, whether or not covered by insurance,
or from any labor dispute or any court or legislative or other governmental
action, order or decree, that is not set forth in the Registration Statement and
the Prospectus, if in the reasonable judgment of the Underwriters any such
development makes it impracticable or inadvisable to proceed with completion of
the sale of and payment for the Shares; (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market, or any setting of minimum prices for trading on such exchange
or market, or any suspension of trading of any securities of the Company on any
exchange or market or in the over-the-counter market; (iv) any banking
moratorium declared by federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international
Xxxxxxxxx & Company, Inc.
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Xxxxxxx Xxxx & Company L.L.C.
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Page 22
calamity or emergency if, in the reasonable judgment of the Underwriters, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Shares.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation
or other proceeding instituted against the Company or any of the Subsidiaries or
any of their respective officers or directors in their capacities as such,
before or by any federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, or
arbitrator, in which litigation or proceeding an unfavorable ruling, decision or
finding would have a Material Adverse Effect.
(d) Each of the representations and warranties of the Company contained
herein shall be true and correct at the Closing Date, as if made at the Closing
Date, and all covenants and agreements contained herein to be performed on the
part of the Company, and all conditions contained herein to be fulfilled or
complied with by the Company at or prior to the Closing Date, shall have been
duly performed, fulfilled or complied with.
(e) Each of the representations and warranties of the Selling Stockholders
contained herein shall be true and correct at the Closing Date, as if made at
the Closing Date, and all covenants and agreements contained herein to be
performed on the part of the Selling Stockholders, and all conditions contained
herein to be fulfilled or complied with by the Selling Stockholders at or prior
to the Closing Date, shall have been duly performed, fulfilled or complied with,
and the Representatives shall have received a certificate to such effect, dated
the Closing Date and signed by or on behalf of each of the Selling Stockholders.
(f) The Underwriters shall have received an opinion from Xxxxxxx & Xxxxx
L.L.P., counsel for the Company, satisfactory in form and substance to counsel
for the Underwriters, dated as of each Closing Date, to the effect set forth in
Exhibit B.
(g) The Underwriters shall have received a favorable opinion, dated as of
each Closing Date, of Xxxxxxxx & Knight, P.C., counsel for the Underwriters,
with respect to such matters as may be reasonably requested by the Underwriters,
and you shall have provided such counsel with such papers and information as
they may reasonably request to enable them to provide such opinion.
(h) On the Firm Shares Closing Date, the Underwriters shall have received
an opinion from [Xxxxxxx & Eager PLLC], legal counsel for the Selling
Stockholders, satisfactory in form
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, 1997
Page 23
and substance to counsel for the Underwriters, dated as of the Firm Shares
Closing Date, to the effect set forth in Exhibit C.
(i) The following conditions contained in clauses (i), (ii) and (iii) of
this Section 6(i) shall have been satisfied on and as of each Closing Date and
the Company shall have furnished to the Underwriters a certificate of the
Company, signed by the President and the principal financial or accounting
officer of the Company, dated such Closing Date to the effect that the signers
of such certificate have carefully examined the Registration Statement, the
Prospectus, any supplement or amendment to the Prospectus, and this Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied with all
the agreements and satisfied all the conditions under this Agreement on its
part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus, there has been no change that would have a Material
Adverse Effect.
(j) At the Representation Date and at each Closing Date, Xxxxxx Xxxxxxxx
LLP shall have furnished to the Underwriters a letter or letters, dated
respectively as of the date of this Agreement and each Closing Date, in form and
substance satisfactory to the Underwriters, containing statements and
information of the type customarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain financial
and statistical information pertaining to the Company and the Subsidiaries
contained in the Registration Statement and the Prospectus.
(k) At the Representation Date, the Company shall have furnished to the
Underwriters a letter substantially in the form of Exhibit A hereto from each
executive officer and director of the Company and from the Selling Stockholders,
addressed to the Underwriters, in which each such person agrees not to offer,
sell or contract to sell, or otherwise dispose of, directly or indirectly, or
announce an offering of, any shares of Common Stock beneficially owned by such
person or any securities convertible into, or exchangeable for, shares of Common
Stock for a
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Rice & Company L.L.C.
, 1997
Page 24
period of 180 days following the date of the Prospectus without the prior
written consent of Xxxxxxxxx & Company, Inc.
(l) At the Closing Date, counsel for the Underwriters shall have been
furnished with such information, certificates and documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Shares as contemplated herein and related proceedings, or to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained, or otherwise in
connection with the offering contemplated hereby; and all opinions and
certificates mentioned above or elsewhere in this Agreement shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
(m) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
If any condition specified in this Section 6 shall not have been fulfilled
in all material respects when and as required to be fulfilled, this Agreement
may be terminated by the Underwriters by notice to the Company and such
termination shall be without liability of any party to any other party except as
provided in Section 5.
SECTION 7. Indemnification and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter and its respective officers, shareholders, employees, directors and
agents and any person who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act from and against any loss,
expense, damage, liability or claim (including the reasonable cost of
investigating such claim) that, jointly or severally, any such Underwriter or
any such officer, shareholder, employee, director, agent or controlling person
may incur under the Act, the Exchange Act or otherwise, as such expenses are
incurred, insofar as such loss, expense, damage, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof) or any omission or
alleged omission to state a material fact required to be stated in such
Registration Statement or necessary to make the statements made therein not
misleading or any untrue statement or alleged untrue statement of a material
fact contained in a Prospectus (the term Prospectus for the purpose of this
Section 7(a) and Section 7(b) being deemed to include any Preliminary
Prospectus, the Prospectus, and the Prospectus as amended or supplemented) or
any omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in light of
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Rice & Company L.L.C.
, 1997
Page 25
the circumstances under which they were made, not misleading; provided,
however, the Company will not be liable in any such case to the extent any such
loss, expense, damage, liability or claim arises out of or is based upon any
untrue statement or omission or alleged untrue statement or omission that has
been made therein or omitted therefrom in reliance upon and in conformity with
the information provided in writing to the Company by or on behalf of any
Underwriter, expressly for use in the Registration Statement or the Prospectus;
and provided, further that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus the
indemnity agreement contained in this Section 7(a) shall not inure to the
benefit of any such indemnified Underwriter or its respective officers,
shareholders, employees, directors and agents, and the Company shall not be
liable to any such indemnified Underwriter or its respective officers,
shareholders, employees, directors and agents, from whom the person asserting
any such losses, claims, expense, damage, or liabilities purchased the Shares
concerned, to the extent that any such loss, claim, expense, damage or liability
of such indemnified Underwriter or its respective officers, shareholders,
employees, directors, and agents results from the fact that there was not sent
or given to such person at or prior to the written confirmation of the sale of
such shares to such person, a copy of the Prospectus, as the same may be amended
or supplemented, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in such Prospectus and the Company had
previously furnished copies thereof to such indemnified Underwriter on a timely
basis to permit the Prospectus (as the same may be amended or supplemented) to
be sent or given. The Company agrees that the only such information provided in
writing by or on behalf of any Underwriter to the Company, expressly for use in
the Registration Statement or the Prospectus, is that information contained in
the table and the second, third, fifth and eighth paragraphs following the table
in the section of the Prospectus entitled "Underwriting" and the last paragraph
on the cover page of the Prospectus. The foregoing indemnity agreement shall be
in addition to any liability that the Company may otherwise have.
(b) The Selling Stockholders agree, severally, to indemnify, defend and
hold harmless each Underwriter and its respective officers, shareholders,
employees and directors and any person who controls any Underwriter within the
meaning of Section 15 of the Act from and against any loss, expense, liability
or claim (including the reasonable cost of investigating such claim) that,
jointly or severally, any such Underwriter or any such officer, shareholder,
employee, director or controlling person may incur under the Act, the Exchange
Act or otherwise, as such expenses are incurred, insofar as such loss, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof) or any omission or alleged omission to state a material fact
required to be stated in such Registration Statement or necessary to make the
statements made therein not
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxx & Company L.L.C.
, 1997
Page 26
misleading, or any untrue statement or alleged untrue statement of a material
fact contained in a Prospectus or any omission or alleged omission therefrom of
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; provided, however, that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 7(b) shall not
inure to the benefit of any such indemnified Underwriter or its respective
officers, shareholders, employees and directors, and the Selling Stockholder
shall not be liable to any such indemnified Underwriter or its respective
officers, shareholders, employees and directors, from whom the person asserting
any such losses, claims, damages, or liabilities purchased the Shares concerned,
to the extent that any such loss, claim, damage or liability of such indemnified
Underwriter or its respective officers, shareholders, employees and directors
results from the fact that there was not sent or given to such person at or
prior to the written confirmation of the sale of such Shares to such person, a
copy of the Prospectus, as the same may be amended or supplemented, and the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such Preliminary Prospectus was
corrected in such Prospectus and the Company had previously furnished copies
thereof to such indemnified Underwriter on a timely basis to permit the
Prospectus (as the same may be amended or supplemented) to be sent or given, and
provided further, that the liability of any Selling Stockholder pursuant hereto
shall not exceed an amount equal to the net proceeds received by such Selling
Stockholder from the sale of its Shares hereunder to the Underwriters.
(c) Each Underwriter agrees to indemnify, defend and hold harmless the
Selling Stockholders, and the Company and its officers, shareholders, employees
and directors and any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
loss, expense, damage, liability or claim (including the reasonable cost of
investigating such claim) that the Selling Stockholders, the Company or any such
officer, shareholder, employee, director or controlling person may incur under
the Act, the Exchange Act or otherwise to the same extent as the provisions of
Section 6(a) above, but only insofar as such loss, expense, damage, liability or
claim arises out of or is based upon any untrue statement or omission or alleged
untrue statement or omission made in reliance on or in conformity with
information relating to such Underwriter furnished in writing to the Company by
or on behalf of such Underwriter, expressly for use in the Registration
Statement or the Prospectus. The Selling Stockholders and the Company agree
that the only information provided in writing by or on behalf of the
Underwriters to the Company, expressly for use in the Registration Statement or
the Prospectus, is that information contained in the table and the second,
third, fifth and eighth paragraphs following the table in the section of the
Prospectus entitled "Underwriting" and the last paragraph on the cover page of
the Prospectus.
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Rice & Company L.L.C.
, 1997
Page 27
(d) If any action is brought against an indemnified party under this
Section 7, the indemnified party or parties shall promptly notify the
indemnifying party in writing of the institution of such action (provided that
the failure to give such notice shall not relieve the indemnifying party of any
liability that it may have pursuant to this Agreement, unless and to the extent
the indemnifying party did not otherwise learn of such action and such failure
has resulted in the forfeiture of substantive rights or defenses by the
indemnifying party) and the indemnifying party shall assume the defense of such
action, including the employment of counsel and payment of reasonable expenses.
The indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action, (ii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified party to
take charge of the defense of such action within a reasonable time after notice
of the institution of such action, (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
that are different from or additional to those available to the indemnifying
party or (iv) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest (in
which case the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the indemnifying party and paid
as incurred; provided that the indemnifying party shall only be responsible for
the fees and expenses of one counsel for the indemnified party or parties
hereunder. Anything in this paragraph to the contrary notwithstanding, the
indemnifying party shall not be liable for any settlement of any such claim or
action effected without its written consent, which consent shall not be
unreasonably withheld.
(e) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under subsection (a), (b) or (c) of this Section 7 in
respect of any losses, damages, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Selling Stockholders on the one hand and
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company and each Selling Stockholder on the one hand
and the Underwriters on the other hand
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxx & Company L.L.C.
, 1997
Page 28
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and such Selling Stockholder bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault of the Company and each Selling Stockholder on the one hand and
of the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission relates to information supplied by
the Company, such Selling Stockholder or by the Underwriters, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, damages, expenses, liabilities and claims referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any claim
or action.
(f) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 7(e) above. Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the underwriting discount received by it by reason of
such untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
The respective indemnity and contribution agreements contained in Section 7, and
the covenants, representations and warranties of the Company and the Selling
Stockholders contained in this Agreement or contained in certificates of
officers of the Company and the Selling Stockholders submitted pursuant hereto,
shall remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter or
any of its respective officers, employees, directors, shareholders, agents or
any person who controls any Underwriters, or by or on behalf of the Company or
the Selling Stockholders or any of the officers or directors or any controlling
person of the Company, and will survive delivery of and payment for the Shares.
SECTION 9. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Shares hereunder on either the Firm
Shares Closing Date or the Additional Shares Closing Date and the aggregate
number of Shares that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10 percent of the total number of Shares that
the Underwriters are obligated to purchase on such Closing Date, the
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Rice & Company L.L.C.
, 1997
Page 29
Representatives may make arrangements satisfactory to the Company and the
Selling Stockholders for the purchase of such Shares by other persons, including
any of the Underwriters, but if no such arrangements are made by such Closing
Date the non-defaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Shares that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of Shares
with respect to which such default or defaults occur exceeds 10 percent of the
total number of Shares that the Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to the Representatives and the
Company and the Selling Stockholders for the purchase of such Shares by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholders, except as provided in this Section 9
(provided that if such default occurs with respect to the Additional Shares
after the Firm Shares Closing Date, this Agreement will not terminate as to the
Firm Shares). As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
SECTION 10. Notices. All notices and other communications hereunder
will be in writing and shall be deemed to have been duly given if mailed or
transmitted by standard form of telecommunication. Notices to the Underwriters
shall be directed to the Underwriters in care of:
Xxxxxxxxx & Company, Inc.
[11100 Xxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention of Xxxxx Xxxxx, Esq.]
with a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
or, if sent to the Company or any of the Selling Stockholders, directed to:
Xxxxxx Xxxxxxx International Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxx & Company L.L.C.
, 1997
Page 30
Attention of X.X. Xxxxxxxx
with a copy to: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx & Xxxxx L.L.P.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
SECTION 11. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and the Selling Stockholders and
their respective successors, assigns, heirs and legal representatives. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
provide any person, firm or corporation, other than the Underwriters, the
Company and the Selling Stockholders and their respective successors, assigns,
heirs and legal representatives and the controlling persons, officers,
employees, directors and shareholders referred to in Sections 7 and 8 and their
respective heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein or
therein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters, the
Company and the Selling Stockholders and their respective successors, assigns,
heirs and legal representatives, and such controlling persons, shareholders,
officers and directors and their respective heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Shares
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 12. Governing Law and Time. This Agreement shall be governed
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in such State. Specified times of day refer
to New York time, unless otherwise specified.
SECTION 13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
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, 1997
Page 31
If the foregoing is in accordance with your understanding of our agreement,
please sign and return a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Company, the
Selling Stockholders and the Underwriters in accordance with its terms.
Very truly yours,
XXXXXX XXXXXXX INTERNATIONAL INC.
By:------------------------------------
Name:----------------------------------
Title:---------------------------------
SELLING STOCKHOLDERS
---------------------------------------
X.X. Xxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
XXXXXXXXX & COMPANY, INC.
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXX & COMPANY L.L.C.
As Representatives of the Several Underwriters
XXXXXXXXX & COMPANY, INC.
By:--------------------------------------------
Name:------------------------------------------
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxx & Company L.L.C.
, 1997
Page 32
Title:-----------------------------------------
SCHEDULE I
SELLING STOCKHOLDERS
--------------------
Name Number of Shares
---- ----------------
X. X. Xxxxxxxx 1,215,750
Xxxx X. Xxxxxxxx 224,400
Xxxxxx X. Xxxxxxx 59,850
SCHEDULE II
UNDERWRITERS
------------
Number of Firm
Shares to be
Name of Underwriter Purchased
--------------------------------- --------------
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Xxxx & Company L.L.C.
______________
Total [3,800,000]
SCHEDULE III
SUBSIDIARIES
------------
Name Jurisdiction Ownership %
------------------------ ------------ -----------
HAM Marine, Inc. Mississippi 100%
Xxxxxx & Xxxxxxx, Ltd. Louisiana 100%
EXHIBIT A
______________, 1997
Xxxxxxxxx & Company, Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Rice & Company L.L.C.
c/x Xxxxxxxxx & Company, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Dear Sirs:
The undersigned has been informed that you, as representatives of the
underwriters (the "Underwriters"), are planning to enter into an Underwriting
Agreement (the "Underwriting Agreement") with Xxxxxx Xxxxxxx International Inc.,
a Delaware corporation (the "Company"), and certain stockholders of the Company
(the "Selling Stockholders"), providing for the purchase by the Underwriters of
[2,300,000] shares of the Company's common stock, $.01 par value (the "Common
Stock"), from the Company and an aggregate of [1,500,000] shares of Common Stock
from the Selling Stockholders, with the right to purchase up to [570,000]
additional shares of Common Stock from the Company to cover over-allotments.
To induce you to enter into the Underwriting Agreement and in consideration
of the purchase and public offering by you of such shares of Common Stock (which
the undersigned considers to be in the best interests of the Company and its
stockholders and to the undersigned's benefit), the undersigned agrees with the
Underwriters that for a period of 180 days from the date of the final Prospectus
relating to such sale of Common Stock covered by the Underwriting Agreement, the
undersigned will not without the prior written consent of Xxxxxxxxx & Company,
Inc., or unless pursuant to bona fide gifts to persons or entities who agree to
be bound by the provisions of this letter, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of, any
shares of Common Stock beneficially owned by the undersigned or any securities
convertible into, or exchangeable for, shares of Common Stock.
Very truly yours,
A-1
EXHIBIT B
(i) the Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus;
(ii) each Subsidiary has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation
and has full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus;
(iii) each of the Company and the Subsidiaries is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
where the nature or location of its properties (owned or leased) or the conduct
of its business requires such registration or qualification, except where the
failure so to register or qualify would not have a Material Adverse Effect;
(iv) all the outstanding shares of capital stock of each Subsidiary have
been duly authorized and validly issued and are fully paid and nonassessable,
and all outstanding shares of capital stock of each such Subsidiary are owned of
record and, to such counsel's knowledge, beneficially by the Company free and
clear of any perfected security interests and, to such counsel's knowledge, any
other security interests, liens, encumbrances, equities, other rights to
purchase or other claims;
(v) there are no preemptive or other rights to subscribe for or to purchase
shares of capital stock of the Company pursuant to any statute, the certificate
of incorporation or bylaws of the Company or, to such counsel's knowledge, any
agreement or other instrument to which the Company is a party as to which any
person can successfully maintain an action, suit or proceeding against the
Company for violation of his or her preemptive rights with respect to the
issuance of any share of capital stock of the Company;
(vi) to such counsel's knowledge, there is no pending or threatened action,
suit or proceeding before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of the Subsidiaries required to be
disclosed in the Prospectus that is not adequately disclosed in the Prospectus;
(vii) to such counsel's knowledge, there is no contract or other document
required to be described in the Registration Statement or Prospectus, or to be
filed as an exhibit, that is not described or filed as required;
(viii) all of the Company's issued and outstanding capital stock has been
duly authorized and validly issued and is fully paid and nonassessable as of the
date hereof and is as set forth in the Prospectus under the heading
"Capitalization", subject to the assumptions set forth therein,
B-1
and the authorized capital stock of the Company conforms in all material
respects to the descriptions thereof under the caption "Description of Capital
Stock" in the Prospectus;
(ix) the Registration Statement has become effective under the Act; any
required filing of the Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b); to such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for that purpose
have been instituted or threatened, and the Registration Statement and the
Prospectus (other than the financial statements and supporting schedules
contained therein as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
applicable Act Regulations; and such counsel has no reason to believe that at
the Effective Date the Registration Statement contained any untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus includes any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(x) the statements in the Registration Statement and Prospectus, insofar as
they are descriptions of contracts, agreements or other legal documents, are
accurate in all material respects and present fairly the information required to
be shown;
(xi) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company and the Company has full corporate power and authority
to enter into the Underwriting Agreement;
(xii) no consent, approval, authorization or order of any court or
governmental agency or body is required in connection with the consummation of
the transactions contemplated by the Underwriting Agreement, except such as have
been obtained under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of the
Shares by the Underwriters and such other approvals (specified in such opinion)
as have been obtained;
(xiii) neither the execution and delivery of the Underwriting Agreement,
nor the consummation of any other of the transactions therein contemplated, nor
the fulfillment of the terms thereof, will result in a breach of, or constitute
a default under, (a) the terms of any indenture or other agreement or instrument
(i) to which the Company or any of the Subsidiaries is a party or by which it is
bound and (ii) that is either filed as an exhibit to the Registration Statement
or is identified to such counsel as being material to the Company and the
Subsidiaries, taken as a whole, and listed on a schedule to such counsel's
opinion, (b) any law, statute, rule, order, regulation or decree of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of the Subsidiaries of which such counsel
is aware and that is known by such counsel to be applicable to the Company or
any of the Subsidiaries (where such conflict, breach or default would have a
Material Adverse Effect) or (c) the certificate of incorporation or bylaws of
the Company;
B-2
(xiv) the Shares to be sold by the Company have been duly and validly
authorized by the Company for issuance, and the Company has full corporate power
and authority to issue, sell and deliver the Shares; and, when the Shares are
issued and delivered against payment therefor as provided by the Underwriting
Agreement, the Shares will have been validly issued and will be fully paid and
nonassessable, and the issuance of such Shares will not be subject to any
statutory preemptive rights or similar statutory rights or, to such counsel's
knowledge, any other preemptive or similar rights;
(xv) the certificates for the Shares are in due and proper form under
Delaware law and the bylaws of the Company and conform with the form of
certificates duly authorized by the Board of Directors of the Company;
(xvi) the Shares, when issued, will conform in all material respects to
the description thereof contained in the Prospectus and the Registration
Statement under the caption "Description of Capital Stock";
(xvii) to such counsel's knowledge, no holder of any securities of the
Company or any other person has the right, contractual or otherwise, to cause
the Company to sell or otherwise issue to such person, or to permit such person
to underwrite the sale of, any of the Shares or the right to have any Common
Stock or other securities of the Company included in the Registration Statement
or the right, as a result of the filing of the Registration Statement, to
require registration under the Act of any shares of Common Stock or other
securities of the Company that has not been waived or lapsed; and
(xviii) the Company is not an "investment company" as defined under the
Investment Company Act or subject to registration under such Act.
In addition, such counsel shall also state that such counsel has
participated in conferences with representatives of the Underwriters, officers
and other representatives of the Company and representatives of the independent
certified public accountants of the Company and the Subsidiaries at which
conferences the contents of the Registration Statement and the Prospectus and
related matters were discussed and that, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except as set forth in clauses (viii), (x) and (xvi) of this Exhibit
B), on the basis of the foregoing (relying as to materiality upon officers and
other representatives of the Company), no facts have come to the attention of
such counsel that lead such counsel to believe that the Registration Statement
at the time it became effective or at the Representation Date and the Closing
Date contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that the Prospectus, at
the Representation Date (unless the term "Prospectus" refers to a prospectus
that has been provided to the Underwriters by the Company for use in connection
with the offering of the Shares that differs from the Prospectus on file at the
Commission at the Representation Date, in which case at the time it is first
provided to the Underwriters for such use) or at the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact
B-3
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, that such counsel need not express any comment with
respect to the financial statements and schedules contained therein, including
the notes thereto, the auditors' report thereon and the related summary of
accounting policies.
The opinions of such counsel relate solely to, are based solely upon and
are limited exclusively to the laws of the State of Delaware and the federal
laws of the United States of America, to the extent applicable.
B-4
EXHIBIT C
(i) each of the Underwriting Agreement and the Power of Attorney and
Custody Agreement has been duly executed and delivered by or on behalf of each
Selling Stockholder;
(ii) to such counsel's knowledge, each Selling Stockholder has full power
and authority to sell, assign, transfer and deliver the Shares to be sold by it;
(iii) to such counsel's knowledge, the execution and delivery of the
Underwriting Agreement and the Power of Attorney and Custody Agreement by or on
behalf of each Selling Stockholder and the sale of the Shares pursuant to the
terms thereof will not conflict with or violate, result in a breach of or
constitute a default under the terms or provisions of any agreement, indenture,
mortgage or other instrument to which such Selling Stockholder is a party or by
which it or any of its assets or property is bound and which has been identified
to such counsel as being material to such Selling Stockholder, or any court
order or decree or any laws, rule, or regulation (except such as may be required
under the Act or such as may be required by the NASD or under state securities
or blue sky laws governing the purchase and distribution of the Shares)
applicable to such Selling Stockholder or to any of the property or assets of
such Selling Stockholder, which breach, default or violation would impair such
Selling Stockholder's ability to sell Shares pursuant to the terms of the
Underwriting Agreement;
(iv) the Power of Attorney and Custody Agreement is valid and binding on
each Selling Stockholder and each Selling Stockholder has full legal right and
authority to sell, transfer and deliver in the manner provided in this Agreement
and the Power of Attorney and Custody Agreement the Shares being sold by such
Selling Stockholder under the Underwriting Agreement; and
(v) immediately prior to the delivery of certificates on the Closing Date,
each of the Selling Stockholders was the sole record owner of the Shares to be
sold by it, and upon delivery of the Shares that each Selling Stockholder has
agreed to sell pursuant to the Underwriting Agreement and payment therefor as
contemplated therein and assuming the Underwriters are acquiring the Shares in
good faith without notice of any adverse claims, the Underwriters will acquire
valid title to such Shares free and clear of any adverse claims.
C-1
