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EXHIBIT 1.1
LASON, INC.
3,500,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
August __, 1998
PRUDENTIAL SECURITIES INCORPORATED
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXXXX XXXXX & COMPANY, L.L.C.
XXXXXXXXX & COMPANY, INC.
PAINEWEBBER INCORPORATED
THE XXXXXXXX-XXXXXXXX COMPANY LLC
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Lason, Inc., a Delaware corporation (the "Company"), and the selling
securityholders named in Schedule 2 hereto (each a "Selling Securityholder" and
together the "Selling Securityholders") hereby confirm their agreement with the
several underwriters named in Schedule 1 hereto (the "Underwriters"), for whom
you have been duly authorized to act as representatives (in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. Securities. Subject to the terms and conditions herein contained,
the Company and the Selling Securityholders propose severally to sell to the
several Underwriters an aggregate of
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(1) Plus an option to purchase from the Company and the Selling
Securityholders up to 525,000 additional shares to cover
over-allotments.
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3,500,000 shares (the "Firm Securities") of the Company's common stock, par
value $0.01 per share ("Common Stock") of which 2,700,000 shares will be issued
and sold by the Company (the "Company's Firm Securities") and 800,000 shares
will be sold by the Selling Securityholders (the "Selling Securityholders' Firm
Securities"). Of the Selling Securityholders' Firm Securities, each Selling
Securityholder will sell the number of shares listed opposite its name on
Schedule 2 hereto. The Company and the Selling Securityholders also propose
severally to sell to the several Underwriters not more than 525,000 additional
shares of Common Stock if requested by the Underwriters as provided in Section 3
of this Agreement, of which not more than ______ shares would be issued and sold
by the Company and not more than _______ shares would be sold by the Selling
Securityholders in the amounts listed on Schedule 2 hereto. Any and all shares
of Common Stock to be purchased by the Underwriters pursuant to such options are
referred to herein as the "Option Securities," and the Firm Securities and any
Option Securities are collectively referred to herein as the "Securities."
2. Representations and Warranties of the Company and the Selling
Securityholders.
(a) The Company represents and warrants to, and agrees with,
each of the several Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-60143)
with respect to the Securities, including a prospectus subject to
completion, has been filed by the Company with the Securities and
Exchange Commission (the "Commission") under the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder
(the "Act"), and one or more amendments to such registration statement
may have been so filed. After the execution of this Agreement, the
Company will file with the Commission either (i) if such registration
statement, as it may have been amended, has been declared by the
Commission to be effective under the Act, either (A) if the Company
relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined)
relating to the Securities, that shall identify the Preliminary
Prospectus (as hereinafter defined) that it supplements containing such
information as is required or permitted by Rules 434, 430A and 424(b)
under the Act or (B) if the Company does not rely on Rule 434 under the
Act, a prospectus in the form most recently included in an amendment to
such registration statement (or, if no such amendment shall have been
filed, in such registration statement), with such changes or insertions
as are required by Rule 430A under the Act or permitted by Rule 424(b)
under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the
Representatives prior to the execution of this Agreement, or (ii) if
such registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the Act, an amendment
to such registration statement, including a form of prospectus, a copy
of which amendment has been furnished to and approved by the
Representatives prior to the execution of this Agreement. The Company
may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering
certain additional Securities, which registration shall be effective
upon filing with the Commission. As used in this Agreement, the term
"Original
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Registration Statement" means the registration statement initially
filed relating to the Securities, as amended at the time when it was or
is declared effective, including all financial schedules and exhibits
thereto and including any information omitted therefrom pursuant to
Rule 430A under the Act and included in the Prospectus (as hereinafter
defined); the term "Rule 462(b) Registration Statement" means any
registration statement filed with the Commission pursuant to Rule
462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time
such Registration Statement becomes effective); the term "Registration
Statement" includes both the Original Registration Statement and any
Rule 462(b) Registration Statement; the term "Preliminary Prospectus"
means each prospectus subject to completion filed with such
registration statement or any amendment thereto (including the
prospectus subject to completion, if any, included in the Registration
Statement or any amendment thereto at the time it was or is declared
effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act,
the Term Sheet relating to the Securities that is
first filed pursuant to Rule 424(b)(7) under the Act,
together with the Preliminary Prospectus identified
therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under
the Act, the prospectus first filed with the
Commission pursuant to Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434 under
the Act and if no prospectus is required to be filed
pursuant to Rule 424(b) under the Act, the prospectus
included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies
the requirements of Rule 434 under the Act. Any reference herein to the
"date" of a Prospectus that includes a Term Sheet shall mean the date
of such Term Sheet.
(ii) The Commission has not issued any order preventing or
suspending use of any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission it (A) contained all
statements required to be stated therein in accordance with, and
complied in all material respects with the requirements of, the Act and
the rules and regulations of the Commission thereunder and (B) did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
When the Registration Statement or any amendment thereto was or is
declared effective, it (A) contained or will contain all statements
required to be stated therein in accordance with, and complied or will
comply in all material respects with the requirements of, the Act and
the rules and regulations of the Commission thereunder and (B) did not
or will not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading. When the Prospectus or any Term Sheet that is a part
thereof or any amendment or supplement to the Prospectus is filed with
the Commission pursuant to Rule 424(b) (or,
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if the Prospectus or part thereof or such amendment or supplement is
not required to be so filed, when the Registration Statement or the
amendment thereto containing such amendment or supplement to the
Prospectus was or is declared effective) and on the Firm Closing Date
and any Option Closing Date (both as hereinafter defined), the
Prospectus, as amended or supplemented at any such time, (A) contained
or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (ii) do not apply to statements or
omissions made in any Preliminary Prospectus, the Registration
Statement or any amendment thereto or the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(iii) If the Company has elected to rely on Rule 462(b) and
the Rule 462(b) Registration Statement has not been declared effective
(A) the Company has filed a Rule 462(b) Registration Statement in
compliance with and that is effective upon filing pursuant to Rule
462(b) and has received confirmation of its receipt and (B) the Company
has given irrevocable instructions for transmission of the applicable
filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under
the Act or the Commission has received payment of such filing fee.
(iv) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation and
are duly qualified to transact business as foreign corporations and are
in good standing under the laws of all other jurisdictions where the
ownership or leasing of their respective properties or the conduct of
their respective businesses requires such qualification, except where
the failure to be so qualified would not have a material adverse effect
on the condition (financial or otherwise), business prospects, net
worth or the results of operations of the Company and its subsidiaries,
taken as a whole (a "Material Adverse Effect").
(v) The Company and each of its subsidiaries have full power
(corporate and other) to own or lease their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Prospectus or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus; and the Company has full power
(corporate and other) to enter into this Agreement and to carry out all
the terms and provisions hereof to be carried out by it.
(vi) The issued shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable and, except as
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disclosed in the Registration Statement, the Prospectus or any Exhibit
to the Registration Statement, are owned beneficially by the Company
free and clear of any security interests, liens, encumbrances, equities
or claims. The Company does not own or control, directly or indirectly,
any corporation, association or other entity required to be listed in
Exhibit 21.1 to the Registration Statement other than those listed in
Exhibit 21.1. All references in this Agreement to "subsidiaries" refer
to the entities listed in Exhibit 21.1.
(vii) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus. All of the
issued shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. The Firm
Securities and the Option Securities have been duly authorized and at
the Firm Closing Date or the related Option Closing Date (as the case
may be), after payment therefor in accordance herewith, will be validly
issued, fully paid and nonassessable. No holders of outstanding shares
of capital stock of the Company are entitled as such to any preemptive
or other rights to subscribe for any of the Securities, and no holder
of securities of the Company, other than a holder of Rule 144(k)
securities, has any right to require the Company to register the offer
or sale of any securities owned by such holder under the Act in the
public offering contemplated by this Agreement which has not expired by
reason of lapse of time, been fully exercised or waived.
(viii) The capital stock of the Company conforms to the
description thereof contained in the Prospectus or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus.
(ix) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding (A) securities or obligations of
the Company or any of its subsidiaries convertible into or exchangeable
for any capital stock of the Company or any such subsidiary, (B)
warrants, rights or options to subscribe for or purchase from the
Company or any such subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (C)
obligations of the Company or any such subsidiary to issue any shares
of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(x) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present the
financial position of the Company and its consolidated subsidiaries and
the results of operations and changes in financial condition as of the
dates and periods therein specified. Such financial statements and
schedules have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The unaudited pro forma
consolidated financial data in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the summaries of those unaudited pro forma
consolidated financial statements contained in the Prospectus (or, if
the Prospectus is not in existence, the most
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recent Preliminary Prospectus) together with the related notes thereto,
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
include all adjustments necessary to present fairly the pro forma
consolidated financial data at the dates and for the periods indicated,
and all assumptions used in preparing such pro forma consolidated
financial data are reasonable. The selected financial data set forth
under the caption "Selected Consolidated Financial Data" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis stated in the
Prospectus (or such Preliminary Prospectus), the information included
therein.
(xi) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), are independent
public accountants as required by the Act and the applicable rules and
regulations thereunder.
(xii) The execution and delivery of this Agreement have been
duly authorized by the Company and this Agreement has been duly
executed and delivered by the Company, and is the valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles.
(xiii) No legal or governmental proceedings are pending to
which the Company or any of its subsidiaries is a party or to which the
property of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not described therein (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), and no such
proceedings have, to the Company's knowledge, been threatened against
the Company or any of its subsidiaries or with respect to any of their
respective properties; and no contract or other document is required to
be described, in all material respects, in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration
Statement that is not described therein (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) or filed as
required.
(xiv) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained, such as may be required under state securities or
blue sky laws and, if the registration statement
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filed with respect to the Securities (as amended) is not effective
under the Act as of the time of execution hereof, such as may be
required (and shall be obtained as provided in this Agreement) under
the Act, or (B) conflict with or result in a breach or violation of any
of the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties are bound, or the charter documents or by-laws of
the Company or any of its subsidiaries, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to the Company or any of its
subsidiaries, which breach, violation or default would result in a
Material Adverse Effect.
(xv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus, neither the Company nor any of its subsidiaries has
sustained any material loss or interference with their respective
businesses or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding and there has not been
any material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or otherwise),
management, business prospects, net worth, or results of the operations
of the Company or any of its subsidiaries, except in each case as
described in or contemplated by the Prospectus or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus.
(xvi) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the Company's knowledge, is
threatened or imminent that could result in a Material Adverse Effect,
except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xvii) Except as disclosed in the Registration Statement, the
Prospectus or an Exhibit to the Registration Statement, (A) the Company
and each of its subsidiaries have good and marketable title to all
items of real property and marketable title to all items of tangible
personal property owned by each of them, in each case free and clear of
any security interests, liens, encumbrances, equities, claims and other
defects, except which do not materially and adversely affect the value
of such property and do not interfere with the use made or proposed to
be made of such property by the Company or any of its subsidiaries, and
(B) any real property and buildings held under lease by the Company and
each of its subsidiaries are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or any of its subsidiaries, in each case
except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). Except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), the agreements to which the Company or any of
its subsidiaries is a party described in the
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Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) are valid agreements, enforceable by the
Company and its subsidiaries (as applicable), except as the enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles, and, to the knowledge of the Company, the other contracting
party or parties thereto are not in material breach or material default
under any of such agreements.
(xviii) The Company and each of its subsidiaries own or
possess, or can acquire on reasonable terms, all material patents,
patent applications, trademarks, service marks, trade names, licenses,
copyrights and proprietary or other confidential information currently
employed by them in connection with their respective businesses; the
expiration of any patents, trademarks, service marks, trade names,
licenses, or copyrights would not have a material adverse effect on the
condition (financial or otherwise), earnings, operations, business or
business prospects of the Company and its subsidiaries taken as a
whole; and neither the Company nor any of its subsidiaries has received
any notice of, or has any reasonable belief that its use constitutes, a
material infringement of or conflict with asserted rights of any third
party with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect, except as described
in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xix) No default exists on the part of the Company or any of
its subsidiaries and no event has occurred which, with notice or lapse
of time or both, would constitute a default on the part of the Company
or any of its subsidiaries in the due performance and observance of any
material term, covenant or condition of any indenture, mortgage, deed
of trust, lease, services and support agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties are bound or may be affected in any material
adverse respect with regard to the property, business or operations of
the Company or any of its subsidiaries, taken as a whole.
(xx) The Company and its subsidiaries maintain insurance with
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are ordinary and customary in the business
in which it is engaged; neither the Company nor any of its subsidiaries
has been refused any insurance coverage sought or applied for; and
neither the Company nor any of its subsidiaries has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect,
except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus).
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(xxi) The Company and each of its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxii) The Company has in the past conducted, and intends in
the future to conduct, its operations in a manner that will not subject
it to registration as an investment company under the Investment
Company Act of 1940, as amended.
(xxiii) The Company and each of its subsidiaries have filed
all foreign, federal, state and local tax returns that are required to
be filed or has requested extensions thereof (except in any case in
which the failure so to file would not have a Material Adverse Effect
and have paid all taxes required to be paid by them and any other
assessment, fine or penalty levied against them, to the extent that any
of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(xxiv) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to (A) the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants or to the storage, handling or transportation of hazardous
or toxic material ("Environmental Laws") or (B) occupational safety and
health and the Company and each of its subsidiaries have received all
permits, licenses or other approvals required of them under applicable
federal and state occupational safety and health and Environmental Laws
and regulations to conduct their respective businesses, and the Company
and each of its subsidiaries is in compliance with all terms and
conditions of any such permit, license or approval, except any such
violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals which would not,
singly or in the aggregate, result in a Material Adverse Effect, except
as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). Neither the Company nor any of its subsidiaries have any
pending or, to the Company's knowledge, threatened Environmental Law or
occupational safety and health claims against it nor are there
circumstances with respect to any property or operations of the Company
or any of its subsidiaries that could reasonably be anticipated to form
the basis of an Environmental Law or occupational safety and health
claim against the Company or any of its subsidiaries which, singly or
in the aggregate, would result in a Material Adverse Effect, except as
described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
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(xxv) The capital or operating expenditures required for
clean-up, closure of properties or compliance relating to Environmental
Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties
would not, singly or in the aggregate, have a Material Adverse Effect.
(xxvi) Each certificate signed by any officer of the Company
and delivered to the Representatives or counsel for the Underwriters
pursuant to this Agreement shall be deemed to be a representation and
warranty by the Company to each underwriter as to the matters covered
thereby.
(xxvii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xxviii) The Company has not, directly or indirectly, (A)
taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B) since
the filing of the Registration Statement (x) sold, bid for, purchased,
or paid anyone any compensation for soliciting purchases of, the
Securities or (y) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Company
(except for the sale of Securities by the Selling Securityholders under
this Agreement).
(xxix) The Company has not distributed and, prior to the later
of (I) the Closing Date and (ii) the completion of the distribution of
the Securities, will not distribute any offering material in connection
with the offering and sale of the Securities other than the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
other materials, if any, permitted by the Act.
(b) Each Selling Securityholder (except for GTCR Fund IV)
severally represents and warrants to, and agrees with, each of the several
Underwriters that:
(i) Such Selling Securityholder has full power (partnership
trust or other) to enter into this Agreement and to sell, assign,
transfer and deliver to the Underwriters the Securities to be sold by
such Selling Securityholder hereunder in accordance with the terms of
this Agreement; the execution and delivery of this Agreement have been
duly authorized by all necessary actions of such Selling
Securityholder (partnership, trust or other, as applicable);
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and this Agreement has been duly executed and delivered by or on behalf
of such Selling Securityholder.
(ii) Such Selling Securityholder has duly executed and
delivered a power of attorney and custody agreement (with respect to
such Selling Securityholder, the "Power of Attorney" and the "Custody
Agreement," respectively), each in the form heretofore delivered to the
Representatives, appointing Xxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxxxx as
such Selling Securityholder's attorney-in-fact (the "Attorney-in-Fact")
each with authority to execute, deliver and perform this Agreement on
behalf of such Selling Securityholder and appointing Lason, Inc., as
custodian thereunder (the "Custodian"). Certificates in negotiable
form, endorsed in blank or accompanied by blank stock powers duly
executed, with signatures appropriately guaranteed, representing the
Securities to be sold by such Selling Securityholder hereunder have
been deposited with the Custodian pursuant to the Custody Agreement for
the purpose of delivery pursuant to this Agreement. Such Selling
Securityholder has full power (partnership, trust or other, as
applicable) to enter into the Custody Agreement and the Power of
Attorney and to perform his obligations under the Custody Agreement.
The Custody Agreement and the Power of Attorney have been duly executed
and delivered by such Selling Securityholder and, assuming due
authorization, execution and delivery by the Custodian, are the legal,
valid, binding and enforceable instruments of such Selling
Securityholder, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles. Such Selling Securityholder agrees that
each of the Securities represented by the certificates on deposit with
the Custodian is subject to the interests of the Underwriters
hereunder, that the arrangements made for such custody, the appointment
of the Attorney-in-Fact and the right, power and authority of the
Attorney-in-Fact to execute and deliver this Agreement, to agree on the
price at which the Securities (including such Selling Securityholder's
Securities) are to be sold to the Underwriters, and to carry out the
terms of this Agreement, are to that extent irrevocable and that the
obligations of such Selling Securityholder hereunder shall not be
terminated, except as provided in this Agreement or the Custody
Agreement, by any act of such Selling Securityholder, by operation of
law or otherwise, whether in the case of any individual Selling
Securityholder by the death or incapacity of such Selling
Securityholder, in the case of a trust or estate by the death of the
trustee or trustees or the executor or executors or the termination of
such trust or estate, or in the case of a partnership Selling
Securityholder by its liquidation or dissolution or by the occurrence
of any other event. If any individual Selling Securityholder, trustee
or executor should die or become incapacitated or any such trust should
be terminated, or if any corporate or partnership Selling
Securityholder shall liquidate or dissolve, or if any other event
should occur, before the delivery of such Securities hereunder, the
certificates for such Securities deposited with the Custodian shall be
delivered by the Custodian in accordance with the respective terms and
conditions of this Agreement as if such death, incapacity, termination,
liquidation or dissolution or other event had not occurred, regardless
of whether or not the Custodian or the Attorney-in-Fact shall have
received notice thereof.
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(iii) Such Selling Securityholder is the lawful owner of the
Securities to be sold by such Selling Securityholder hereunder and upon
sale and delivery of, and payment for, such Securities, as provided
herein, such Selling Securityholder will convey good and marketable
title to such Securities, free and clear of any security interests,
liens, encumbrances, equities, claims or other defects.
(iv) Such Selling Securityholder has not, directly or
indirectly, (A) taken any action designed to cause or result in, or
that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities or (B) since the filing of the Registration Statement (x)
sold, bid for, purchased, or paid anyone any compensation for
soliciting purchases of, the Securities or (y) paid or agreed to pay to
any person any compensation for soliciting another to purchase any
other securities of the Company (except for the sale of Securities by
the Selling Securityholders under this Agreement).
(v) Such Selling Securityholder has reviewed the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Registration Statement, and the information
regarding such Selling Securityholder set forth therein under the
captions "Management," "Principal and Selling Stockholders" and
"Certain Relationships and Related Transactions" is complete and
accurate.
(vi) The Selling Securityholders have not distributed and,
prior to the later of (A) the Firm Closing Date and (B) the completion
of the distribution of the Securities, will not distribute any offering
material in connection with the offering and sale of the Securities
other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any supplement or amendment
thereto, or any materials, if any permitted by the Act.
(vii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Internal Revenue Code
of 1986, as amended, with respect to the transactions herein
contemplated, such Selling Securityholder agrees to deliver to the
Representatives prior to or on the Firm Closing Date a properly
completed and executed United States Treasury Department Form W-8 or
W-9 (or other applicable form or statement specified by the Treasury
Department regulations in lieu thereof).
(viii) The sale by such Selling Securityholder of Securities
pursuant hereto is not prompted by any adverse information concerning
the Company that is not set forth in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(ix) The sale of the Securities to the Underwriters by such
Selling Securityholder pursuant to this Agreement, the compliance by
such Selling Securityholder with the other provisions of this Agreement
and the Custody Agreement and the consummation of the other
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transactions herein contemplated do not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as has been obtained, such as the
registration under blue sky laws and with the NASD and, if the
registration statement filed with respect to the Securities (as
amended) is not effective under the Act as of the time of execution
hereof, such as may be required (and shall be obtained as provided in
this Agreement) under the Act and the Exchange Act, or (B) conflict
with or result in a breach or violation of any of the material terms
and provisions of, or constitute a default under any indenture,
mortgage, deed of trust, lease or other agreement or instrument to
which such Selling Securityholder is a party or by which such Selling
Securityholder or any of such Selling Securityholder's properties are
bound, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator applicable to such Selling Securityholder.
(x) All information furnished by or on behalf of such Selling
Securityholder relating to such Selling Securityholder and the Selling
Securityholders' Securities that is contained in the representations
and warranties of such Selling Securityholder in such Selling
Securityholder's Power of Attorney or Custody Agreement or set forth in
the Registration Statement or the Prospectus is, and at the time the
Registration Statement became or becomes, as the case may be, effective
and at all times subsequent thereto up to and on the Closing Date, and
on any later date on which Option Securities are to be purchased, was
or will be, true, correct and complete, and does not, and at the time
the Registration Statement became or becomes, as the case may be,
effective and at all times subsequent thereto up to and on the Closing
Date, and on any later date on which Option Securities are to be
purchased, will not, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make such information not misleading.
(xi) Such Selling Securityholder will comply with all
agreements and satisfy all conditions on its part to be complied with
or satisfied pursuant to this Agreement on or prior to the Closing
Date, or any later date on which Option Securities are to be purchased,
as the case may be, and will advise one of its Attorneys and Prudential
Securities Incorporated prior to the Closing Date, or such later date
on which Option Securities are to be purchased, as the case may be, if
any statement to be made on behalf of such Selling Securityholder in
the certificate contemplated by Section 7(h) would be inaccurate if
made as of the Closing Date, or such later date on which Option
Securities are to be purchased, as the case may be.
(xii) Such Selling Securityholder does not have, or has waived
prior to the date hereof, any preemptive right, co-sale right or right
of first refusal or other similar right to purchase any of the
Securities that are to be sold by the Company or any of the other
Selling Securityholders to the Underwriters pursuant to this Agreement;
such Selling Securityholder does not have, or has waived prior to the
date hereof, any registration right or other similar
right to participate in the offering made by the Prospectus, other than
such rights of participation as have been satisfied by the
participation of such Selling Securityholder in the transactions to
which this Agreement relates in accordance with the terms of this
Agreement;
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and such Selling Securityholder does not own any warrants, options or
similar rights to acquire, and does not have any right or arrangement
to acquire, any capital stock, rights, warrants, options or other
securities from the Company, other than options issued pursuant to the
Company's presently authorized 1995 Stock Option Plan and the 1998
Equity Participation Plan (the "Stock Option Plans").
(xiii) In addition to the other representations and warranties
set forth in this Section 2(b), each Selling Securityholder, acting
severally and not jointly, further represents and warrants that (A), to
his or its knowledge, the representations and warranties of the Company
set forth in Section 2(a) hereof are true and correct and (B) each
Preliminary Prospectus, as of its date, has not included any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading; and at the
time the Registration Statement became or becomes, as the case may be,
effective, on the Closing Date and on any later date on which Option
Securities are to be purchased hereunder, neither the Registration
Statement nor the Prospectus, nor any amendment or supplement thereto,
included or will include any untrue statement of a material fact or
omitted or will 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; provided,
however, that none of the representations and warranties contained in
this subsection (xii) shall apply to information contained in or
omitted from the Registration Statement or the Prospectus or any such
amendment or supplement thereto in reliance upon, and in conformity
with, information furnished to the Company by any Underwriter
specifically for inclusion therein.
(c) GTCR Fund IV represents and warrants to, and agrees with,
each of the several Underwriters that:
(i) GTCR Fund IV has full power (corporate and other) to enter
into this Agreement and to sell, assign, transfer and deliver to the
Underwriters the Securities to be sold by GTCR Fund IV hereunder in
accordance with the terms of this Agreement; the execution and delivery
of this Agreement have been duly authorized by all necessary actions of
GTCR Fund IV (corporate and other); and this Agreement has been duly
executed and delivered by or on behalf of GTCR Fund IV.
(ii) GTCR Fund IV has duly executed and delivered a power of
attorney and custody agreement (with respect to GTCR Fund IV, the
"Power of Attorney" and the "Custody Agreement," respectively), each in
the form heretofore delivered to the Representatives, appointing Xxxx
X. Xxxxxx and Xxxxxxx X. Xxxxxxxxxx as GTCR Fund IV's attorney-in-fact
(the "Attorney-in-Fact") each with authority to execute, deliver and
perform this Agreement on behalf of GTCR Fund IV and appointing Lason,
Inc., as custodian thereunder (the "Custodian"). Certificates in
negotiable form, endorsed in blank or accompanied by blank stock powers
duly executed, with signatures appropriately guaranteed, representing
the Securities to be sold by GTCR Fund IV hereunder have been deposited
with
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the Custodian pursuant to the Custody Agreement for the purpose of
delivery pursuant to this Agreement. GTCR Fund IV has full power
(corporate and other) to enter into the Custody Agreement and the Power
of Attorney and to perform his obligations under the Custody Agreement.
The Custody Agreement and the Power of Attorney have been duly executed
and delivered by GTCR Fund IV and, assuming due authorization,
execution and delivery by the Custodian, are the legal, valid, binding
and enforceable instruments of GTCR Fund IV, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the rights and remedies of creditors generally and subject as
to enforceability, to general principles of equity (regardless of
whether applied in a court of equity or law) and to any limitations
under applicable law and considerations of public policy which relate
to indemnification and contribution provisions. GTCR Fund IV agrees
that each of the Securities represented by the certificates on deposit
with the Custodian is subject to the interests of the Underwriters
hereunder, that the arrangements made for such custody, the appointment
of the Attorney-in-Fact and the right, power and authority of the
Attorney-in- Fact to execute and deliver this Agreement, to agree on
the price at which the Securities (including GTCR Fund IV's Securities)
are to be sold to the Underwriters, and to carry out the terms of this
Agreement, are to that extent irrevocable and that the obligations of
GTCR Fund IV hereunder shall not be terminated, except as provided in
this Agreement or the Custody Agreement, by any act of GTCR Fund IV, by
operation of law or otherwise, whether by its liquidation or
dissolution or by the occurrence of any other event. If GTCR Fund IV
shall liquidate or dissolve, or if any other event should occur, before
the delivery of such Securities hereunder, the certificates for such
Securities deposited with the Custodian shall be delivered by the
Custodian in accordance with the respective terms and conditions of
this Agreement as if such termination, liquidation or dissolution or
other event had not occurred, regardless of whether or not the
Custodian or the Attorney-in-Fact shall have received notice thereof.
(iii) GTCR Fund IV is the lawful owner of the Securities to be
sold by GTCR Fund IV hereunder and upon sale and delivery of, and
payment for, such Securities, as provided herein, GTCR Fund IV will
convey good and marketable title to such Securities, free and clear of
any security interests, liens, encumbrances, equities, claims or other
defects.
(iv) GTCR Fund IV has not, directly or indirectly, (A) taken
any action designed to cause or result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or (B) since the filing of the
Registration Statement (x) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities or (y) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company (except for the sale of
Securities by GTCR Fund IV under this Agreement).
(v) The information furnished by or on behalf of GTCR Fund IV
relating to GTCR Fund IV and the Securities being sold hereunder by it
included in the Registration
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Statement and the Prospectus does 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 such information not misleading.
(vi) GTCR Fund IV has not distributed and, prior to the later
of (A) the Firm Closing Date and (B) the completion of the distribution
of the Securities, will not distribute any offering material in
connection with the offering and sale of the Securities other than the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any supplement or amendment thereto, or
any materials, if any permitted by the Act.
(vii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Internal Revenue Code
of 1986, as amended, with respect to the transactions herein
contemplated, GTCR Fund IV agrees to deliver to the Representatives
prior to or on the Firm Closing Date a properly completed and executed
United States Treasury Department Form W-8 or W-9 (or other applicable
form or statement specified by the Treasury Department regulations in
lieu thereof).
(viii) The sale by GTCR Fund IV of Securities pursuant hereto
is not prompted by any material adverse information concerning the
Company that is not set forth in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(ix) The sale of the Securities to the Underwriters by such
Selling Securityholder pursuant to this Agreement, the compliance by
such Selling Securityholder with the other provisions of this Agreement
and the Custody Agreement and the consummation by GTCR Fund IV of the
other transactions herein contemplated do not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except with the NASD and, if the registration
statement filed with respect to the Securities (as amended) is not
effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under
the Act and the Exchange Act, or (B) conflict with or result in a
material breach or violation of any of the material terms and
provisions of, or constitute a default under any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which GTCR
Fund IV is a party or by which GTCR Fund IV or any of GTCR Fund IV's
properties are bound, or the charter documents or bylaws of GTCR Fund
IV, or any statute (other than as described in the Prospectus (or if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator applicable to
GTCR Fund IV.
(x) GTCR Fund IV will comply with all agreements and satisfy
all conditions on its part to be complied with or satisfied pursuant to
this Agreement on or prior to the Closing
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Date, or any later date on which Option Securities are to be purchased,
as the case may be, and will advise one of its Attorneys-in-Fact and
Prudential Securities Incorporated prior to the Closing Date, or such
later date on which Option Securities are to be purchased, as the case
may be, if any statement to be made on behalf of such Selling
Securityholder in the certificate contemplated by Section 7(h) would be
inaccurate if made as of the Closing Date, or such later date on which
Option Securities are to be purchased, as the case may be.
(xi) GTCR Fund IV does not have, or has waived prior to the
date hereof, any preemptive right, co-sale right or right of first
refusal or other similar right to purchase any of the Securities that
are to be sold by the Company or any of the other Selling
Securityholders to the Underwriters pursuant to this Agreement; GTCR
Fund IV does not have, or has waived prior to the date hereof, any
registration right or other similar right to participate in the
offering made by the Prospectus, other than such rights of
participation as have been satisfied by the participation of GTCR Fund
IV in the transactions to which this Agreement relates in accordance
with the terms of this Agreement; and GTCR Fund IV does not own any
warrants, options or similar rights to acquire, and does not have any
right or arrangement to acquire, any capital stock, rights, warrants,
options or other securities from the Company, other than options issued
pursuant to the Company's presently authorized Stock Option Plans.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to, and each of the Selling
Securityholders, severally and not jointly, agrees to sell to, each of the
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company and the Selling Securityholders at a purchase price of
$_____ per share, the number of Firm Securities set forth opposite the name of
such Underwriter in Schedule 1 hereto. One or more certificates in definitive
form for the Firm Securities that the several Underwriters have agreed to
purchase hereunder, and in such denomination or denominations and registered in
such name or names as the Representatives request upon notice to the Company and
the Selling Securityholders at least 48 hours prior to the Firm Closing Date,
shall be delivered by or on behalf of the Company and the Selling
Securityholders to the Representatives for the respective accounts of the
Underwriters, against payment by or on behalf of the Underwriters of the
purchase price therefor by wire transfer in same-day funds (the "Wired Funds")
to the order of the Company and the Selling Securityholders, as their interests
may appear. Such delivery of and payment for the Firm Securities shall be made
at the offices of King & Spalding, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, 00000
at 9:30 A.M., New York City time, on ______ __, 1998; or at such other place,
time or date as the Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 9 hereof, such time and date
of delivery against payment being herein referred to as the "Firm Closing Date."
The Company and the Selling Securityholders will make such certificate or
certificates for the Firm Securities and the Option Securities, as the case may
be, available for checking and packaging by the Representatives at the offices
in New York, New York
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of the Company's transfer agent or registrar or of Prudential Securities
Incorporated at least 24 hours prior to the Firm Closing Date or the Option
Closing Date, as the case may be.
(b) For the purpose of covering any over-allotments in connection with
the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company and the Selling Securityholders hereby grant to the
several Underwriters options to purchase, severally and not jointly, the Option
Securities. The purchase price to be paid for any Option Securities shall be the
same price per share as the price per share for the Firm Securities set forth
above in paragraph (a) of this Section 3. The options granted hereby may be
exercised as to all or any part of the Option Securities from time to time
within thirty days after the date of the Prospectus (or, if such 30th day shall
be a Saturday or Sunday or a holiday, on the next business day thereafter when
the New York Stock Exchange is open for trading). The Underwriters shall not be
under any obligation to purchase any of the Option Securities prior to the
exercise of such options. The Representatives may from time to time exercise the
options granted hereby by giving notice in writing or by telephone (confirmed in
writing) to the Company, the Attorneys-in-Fact for the Selling Securityholders
and GTCR Fund IV setting forth the aggregate number of Option Securities as to
which the several Underwriters are then exercising the options and the date and
time for delivery of and payment for such Option Securities. Any such date of
delivery shall be determined by the Representatives but shall not be earlier
than two business days or later than five business days after such exercise of
the options and, in any event, shall not be earlier than the Firm Closing Date.
The time and date set forth in such notice, or such other time on such other
date as the Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 9 hereof, is herein called the
"Option Closing Date" with respect to such Option Securities. Upon exercise of
the options as provided herein, the Company and the Selling Securityholders
shall become obligated to sell to each of the several Underwriters, and, subject
to the terms and conditions herein set forth, each of the Underwriters
(severally and not jointly) shall become obligated to purchase from the Company
and the Selling Securityholders, the same percentage of the total number of the
Option Securities as to which the several Underwriters are then exercising the
options as such Underwriter is obligated to purchase of the aggregate number of
Firm Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares. If the options are exercised as to all or
any portion of the Option Securities, one or more certificates in definitive
form for such Option Securities, and payment therefor, shall be delivered on the
related Option Closing Date in the manner, and upon the terms and conditions,
set forth in paragraph (a) of this Section 3 with respect to the sale of the
Firm Securities, except that reference therein to the Firm Securities and the
Firm Closing Date shall be deemed, for purposes of this paragraph (b), to refer
to such Option Securities and Option Closing Date, respectively.
(c) The Company and each of the Selling Securityholders hereby
acknowledge that the wire transfer by or on behalf of the Underwriters of the
purchase price for any Securities does not constitute closing of a purchase and
sale of the Securities. Only execution and delivery of a receipt for Securities
by the Underwriters indicates completion of the closing of a purchase of the
Securities from the Company and the Selling Securityholders. Furthermore, in the
event that the Underwriters wire funds to the Company and the Selling
Securityholders prior to the completion of the closing of
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a purchase of the Securities, the Company and the Selling Securityholders hereby
acknowledge that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company and the Selling
Securityholders will not be entitled to the Wired Funds and shall return the
Wired Funds to the Underwriters as soon as practicable (by wire transfer of
same-day funds) upon demand. In the event that the closing of a purchase of the
Securities is not completed and the Wired Funds are not returned by the Company
and the Selling Securityholders to the Underwriters on the same day the Wired
Funds were received by the Company and the Selling Securityholders, the Company
and each of the Selling Securityholders agree to reimburse the Underwriters for
each day the Wired Funds are not returned, in same-day funds, interest on the
amount of the Wired Funds representing the Underwriters' cost of financing as
reasonably determined by Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as one
of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations
hereunder.
4. Offering by the Underwriters. Upon your authorization of the
release of the Firm Securities, the several Underwriters propose to offer the
Firm Securities for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants of the Company and the Selling Securityholders.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto to become effective as
promptly as possible. If required, the Company will file the Prospectus
or any Term Sheet that constitutes a part thereof and any amendment or
supplement thereto with the Commission in the manner and within the
time period required by Rules 434 and 424(b) under the Act. During any
time when a prospectus relating to the Securities is required to be
delivered under the Act, the Company (A) will comply with all
requirements imposed upon it by the Act and the rules and regulations
of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance
with the provisions hereof and of the Prospectus, as then amended or
supplemented, and (B) will not file with the Commission the Prospectus,
Term Sheet or the amendment referred to in the second sentence of
Section 2(a)(i) hereof, any amendment or supplement to such Prospectus,
Term Sheet or any amendment to the Registration Statement or any Rule
462(b) Registration Statement of which the Representatives shall not
previously have been advised and furnished with a copy for a reasonable
period of time prior to the proposed filing and as to which filing the
Representatives shall not have given their consent.
The Company will prepare and file with the Commission, in accordance
with the rules and regulations of the Commission, promptly upon request
by the Representatives or counsel for
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the Underwriters, any amendments to the Registration Statement or any
Rule 462(b) Registration Statement or amendments or supplements to the
Prospectus that may be necessary or advisable in connection with the
distribution of the Securities by the several Underwriters, and will
use its best efforts to cause any such amendment to the Registration
Statement to be declared effective by the Commission as promptly as
possible. The Company will advise the Representatives, promptly after
receiving notice thereof, of the time when the Registration Statement
or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and
will provide evidence satisfactory to the Representatives of each such
filing or effectiveness.
(ii) The Company will advise the Representatives, promptly
after receiving notice or obtaining knowledge thereof, of (A) the
issuance by the Commission of any stop order suspending the
effectiveness of the Original Registration Statement or any Rule 462(b)
Registration Statement or any amendment thereto or any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, (B) the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, (C) the institution, threatening or contemplation of any
proceeding for any such purpose or (D) any request made by the
Commission for amending the Original Registration Statement or any Rule
462(b) Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Company will use its best
efforts to prevent the issuance of any such stop order and, if any such
stop order is issued, to obtain the withdrawal thereof as promptly as
possible.
(iii) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws
of such jurisdictions as the Representatives may designate and will
continue such qualifications in effect for as long as may be necessary
to complete the distribution of the Securities, provided, however, that
in connection therewith the Company shall not be required to qualify as
a foreign corporation or to execute a general consent to service of
process in any jurisdiction.
(iv) If, at any time prior to the later of (A) the final date
when a prospectus relating to the Securities is required to be
delivered under the Act or (B) the Option Closing Date, any event
occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if for any other reason it is necessary at any time
to amend or supplement the Prospectus to comply with the Act or the
rules or regulations of the Commission thereunder, the Company will
promptly notify the Representatives thereof and, subject to Section
5(a) hereof, will prepare and file with the Commission, at the
Company's expense, an amendment to the Registration Statement or an
amendment or supplement to the Prospectus that corrects such statement
or omission or effects such compliance.
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(v) The Company will, without charge, provide (A) to the
Representatives and to counsel for the Underwriters as many signed
copies of the registration statement originally filed with respect to
the Securities and each amendment thereto and any Rule 462(b)
Registration Statement (in each case including exhibits thereto) as the
Representatives and counsel to the Underwriters may reasonably request,
(B) to each other Underwriter, a conformed copy of such Registration
Statement and any Rule 462(b) Registration Statement and each amendment
thereto, certified by the Secretary of the Company to be true and
complete copies thereof as filed with the Commission by electronic
transmission, (in each case without exhibits thereto) and (C) so long
as a prospectus relating to the Securities is required to be delivered
under the Act, as many copies of each Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request; without limiting the
application of clause (C) of this sentence, the Company, not later than
(1) 6:00 P.M., New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to
10:00 A.M., New York City time, on such date or (2) 2:00 PM, New York
City time, on the business day following the date of determination of
the public offering price, if such determination occurred after 10:00
A.M., New York City time, on such date, will deliver to the
Underwriters, without charge, as many copies of the Prospectus and any
amendment or supplement thereto as the Representatives may reasonably
request for purposes of confirming orders that are expected to settle
on the Firm Closing Date.
(vi) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives an earnings
statement of the Company that satisfies the provisions of Section 11(a)
of the Act and Rule 158 thereunder.
(vii) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus.
(viii) The Company will not, directly or indirectly, without
the prior written consent of Prudential Securities Incorporated, on
behalf of the Underwriters, offer, sell, offer to sell, contract to
sell, pledge, grant any option to purchase or otherwise sell or dispose
(or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any option to purchase or other sale or disposition) of any
shares of Common Stock or any securities convertible into, or
exercisable or exchangeable for, Common Stock or other capital stock of
the Company or any right to purchase or acquire Common Stock or other
capital stock of the Company for a period of 90 days after the date
hereof, except (A) as otherwise pursuant to this Agreement, (B) for
issuances pursuant to the exercise of employee and affiliated
professional stock options outstanding on the date hereof, issuances
pursuant to the exercise of stock options granted hereafter pursuant to
the Stock Option Plans so long as such options are not exercised within
90 days after the date hereof, and except that the Company may file
registration statements at any time after the date hereof related to
the resale of such shares of the Company's Common Stock issued pursuant
to the Stock Option Plans, (C) issuances pursuant to the exercise of
warrants outstanding on the date hereof, (D) in connection with
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acquisitions by the Company, provided that any Common Stock so issued
shall not be transferable by the recipient thereof for a period of 90
days after the date hereof or (E) for Common Stock to be issued
pursuant to earnouts in already completed acquisitions by the Company.
(ix) The Company will not, directly or indirectly, (A) take
any action designed to cause or to result in, or that has constituted
or which might reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or (B) (x) sell, bid
for, purchase, or pay anyone any compensation for soliciting purchases
of, the Securities or (y) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company except for the sale of Securities by the Selling
Securityholders under this Agreement.
(x) The Company, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act within the time periods
required by the Exchange Act and the rules and regulations thereunder.
(xi) The Company will cause the Securities to be duly included
for quotation in The Nasdaq Stock Market's National Market (the "Nasdaq
National Market") prior to the Firm Closing Date. The Company will use
it best efforts to ensure that the Securities remain included for
quotation in the Nasdaq National Market following the Firm Closing
Date.
(xii) During a period of three years from the effective date
of the Registration Statement, the Company will furnish to you and,
upon request, to each of the other Underwriters, without charge, (A)
copies of all reports or other communications (financial or other)
furnished to securityholders, (B) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange, and (C) such additional
publicly available information concerning the business and financial
condition of the Company, if any, as you may reasonably request.
(xiii) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the
Option Closing Date, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your opinion
the market price of the Common Stock has been or is likely to be
materially affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Prospectus), the
Company will, after notice from you advising the Company to the effect
set forth above, forthwith prepare, consult with you concerning the
substance of, and disseminate a press release or other public statement
reasonably satisfactory to both parties, responding to or commenting on
such rumor, publication or event.
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(xiv) If the Company elects to rely on Rule 462(b), the
Company shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees
in accordance with Rule 111 promulgated under the Act by the earlier of
(i) 10:00 P.M. New York City time on the date of this Agreement and
(ii) the time confirmations are sent or given, as specified by Rule
462(b)(2).
(xv) The Company will obtain the agreements described in
Section 7(h) hereof prior to the Firm Closing Date.
(b) Each Selling Securityholder covenants and agrees with each of
the Underwriters that:
(i) Such Selling Securityholder will not, directly or
indirectly, (A) take any action designed to cause or to result in, or
that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities or (B) (x) sell, bid for, purchase, or pay anyone any
compensation for soliciting purchases of, the Securities or (y) pay or
agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Company (except for the sale of
Securities by the Selling Securityholder under this Agreement).
(ii) Such Selling Securityholder will not, directly or
indirectly, without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale,
contract of sale, pledge, grant of any option to purchase or other sale
or disposition) of any shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, Common Stock or
other capital stock of the Company or any right to purchase or acquire
Common Stock or other capital stock of the Company for a period of 90
days after the date hereof, except pursuant to this Agreement;
provided, however, that the such Selling Securityholders may make bona
fide gifts or transfers effected other than on any securities exchange
or in the over-the-counter market to donees or transferees who agree to
be bound by the restrictions described in this paragraph 5(b)(ii) and
GTCR Fund IV may make distributions of Common Stock to its partners as
long as its partners continue to be bound by such restrictions. If the
Firm Closing Date has not occurred by September 30, 1998, the
agreements contained in this Section 5(b)(ii) shall be of no further
force or effect.
6. Expenses. The Company will pay all costs and expenses incident to
the performance of the obligations of the Company and the Selling
Securityholders under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 12 hereof, including all costs and expenses incident to (a) the printing
or other production of documents with respect to the transactions, including any
costs of printing the registration statement originally filed with respect to
the Securities and any amendment thereto, any Rule 462(b) Registration
Statement, any Preliminary Prospectus and the Prospectus and any
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amendment or supplement thereto, this Agreement and any blue sky memoranda, (b)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (c) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (d)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees and
the Custodian's fees, (e) the qualification of the Securities under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriters relating thereto, provided that the filing fees
and fees disbursements of Underwriters' counsel in connection with the National
Association of Security Dealer's filings and blue sky qualifications shall not
exceed $31,300, (f) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities, (g) any
quotation of the Securities in the Nasdaq National Market, (h) the expenses of
the Company in connection with any meetings with prospective investors in the
Securities and (i) advertising relating to the offering of the Securities. To
the extent, if at all, that any of the Selling Securityholders engage special
legal counsel to represent them in connection with this offering, other than
counsel to the Company, the fees and expenses of such counsel shall be borne by
such Selling Securityholders. Any transfer taxes imposed on the sale of the
Securities to the several Underwriters will be paid by the Company and the
Selling Securityholders pro rata. If the sale of the Securities provided for
herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 7 hereof is not satisfied, because this
Agreement is terminated pursuant to Section 12(a) hereof or because of any
failure, refusal or inability on the part of the Company or any Selling
Securityholder to perform all obligations and satisfy all conditions on its part
to be performed or satisfied hereunder other than by reason of a default by any
of the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including Underwriters' counsel fees and
disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. The Company shall not in any event
be liable to any of the Underwriters for the loss of anticipated profits from
the transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Selling Securityholders
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's officers and the Selling Securityholders made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Securityholders of their respective covenants and agreements hereunder and to
the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed prior
to the Firm Closing Date has not been declared effective as of the time of
execution hereof, the Registration Statement or such amendment and, if the
Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have been declared effective not later than the earlier of (i)
11:00 A.M., New York City time, on the date on which the amendment to the
registration statement originally filed with respect to the Securities or to the
Registration Statement, as the case may be, containing
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information regarding the initial public offering price of the Securities has
been filed with the Commission and (ii) the time confirmations are sent or given
as specified by Rule 462(b)(2) or, with respect to the Registration Statement,
such later time and date as shall have been consented to by the Representatives;
if required, the Prospectus or any Term Sheet that constitutes a part thereof
and any amendment or supplement thereto shall have been filed with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Seyburn, Kahn, Ginn, Bess, Xxxxxx and Xxxxxx, P.C. counsel for
the Company and the Selling Securityholders (except for GTCR Fund IV), to the
effect that:
(i) the Company and each of its subsidiaries (the
"Subsidiaries") have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation and are duly qualified to transact
business as foreign corporations and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
(ii) the Company and each of the Subsidiaries have corporate
power to own or lease their respective properties and conduct their
respective businesses as described in the Registration Statement and
the Prospectus, and the Company has corporate power to enter into this
Agreement and to carry out all the terms and provisions hereof to be
carried out by it;
(iii) the issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and, to such counsel's knowledge, except as
disclosed in the Registration Statement, Prospectus or in an Exhibit to
the Registration Statement, are owned beneficially by the Company free
and clear of any perfected security interests or, to the best knowledge
of such counsel, any other security interests, liens, encumbrances,
equities or claims;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued shares
of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable, have been issued
in compliance with all applicable federal and state securities laws
and, to such counsel's knowledge, were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or
purchase securities; the Firm Securities have been duly authorized by
all
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necessary corporate action of the Company and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable; the
Securities have been duly included for trading in the Nasdaq National
Market; to such counsel's knowledge, no holders of outstanding shares
of capital stock of the Company are entitled as such to any preemptive
or other rights to subscribe for any of the Securities; and, to such
counsel's knowledge, no holder of securities of the Company, other than
a holder of Rule 144(k) securities, has the right to require the
Company to register the offer or sale of any securities owned by such
holder under the Act in the public offering contemplated by this
Agreement which has not expired by reason of lapse of time, been fully
exercised or waived;
(v) the statements set forth under the heading "Description of
Capital Stock" in the Prospectus, insofar as such statements purport to
summarize certain provisions of the capital stock of the Company,
provide a fair summary of such provisions; and the statements set forth
under the heading "Certain Relationships and Related Transactions" in
the Prospectus, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, provide a
fair summary of such legal matters, documents and proceedings;
(vi) the execution and delivery of this Agreement have been
duly authorized by all necessary corporate action of the Company and
this Agreement has been duly executed and delivered by the Company;
(vii) To such counsel's knowledge, (A) no legal or
governmental proceedings are pending to which the Company or any of the
Subsidiaries is a party or to which the property of the Company or any
of the Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein,
and, to the best knowledge of such counsel, no such proceedings have
been threatened against the Company or any of the Subsidiaries or with
respect to any of their respective properties and (B) no contract or
other document is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein or filed as
required;
(viii) the issuance, offering and sale of the Securities to
the Underwriters by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this Agreement
and the consummation of the other transactions herein contemplated do
not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained and such as may be required under state securities
or blue sky laws, or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument, known to such counsel, to which the Company or
any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries or any of their respective properties are bound, or
the
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charter documents or by-laws of the Company or any of the
Subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator known to such counsel and applicable to the Company or
Subsidiaries;
(ix) the Registration Statement is effective under the Act;
any required filing of the Prospectus, or any Term Sheet that
constitutes a part thereof, pursuant to Rules 434 and 424(b) has been
made in the manner and within the time period required by Rules 434 and
424(b); and no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to
the best knowledge of such counsel, are contemplated by the Commission;
and
(x) the Registration Statement originally filed with respect
to the Securities and each amendment thereto, any Rule 462(b)
Registration Statement and the Prospectus (in each case, other than the
financial statements and other financial information contained therein,
as to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act and
the rules and regulations of the Commission thereunder.
(xi) to the best knowledge of such counsel, the Company and
each of its subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and, to
the best knowledge of such counsel, the Company has not received any
notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect, except as
described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus);
(xii) the Company is not an "investment company" under the
Investment Company Act of 1940, as amended;
(xiii) to the best knowledge of such counsel, except as
disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no
outstanding (A) securities or obligations of the Company convertible
into or exchangeable for any capital stock of the Company, (B)
warrants, rights or options to subscribe for or purchase from the
Company any such capital stock or any such convertible or exchangeable
securities or obligations, or (C) obligations of the Company to issue
any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
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(xiv) if the Company elects to rely on Rule 434, the
Prospectus is not "materially different", as such term is used in Rule
434, from the prospectus included in the Registration Statement at the
time of its effectiveness or an effective post-effective amendment
thereto (including such information that is permitted to be omitted
pursuant to Rule 430A).
In addition, such counsel shall state that such counsel has
participated in conferences with officials and other representatives of the
Company, the Representatives, Underwriters' counsel and the independent
certified accountants of the Company, at which such conferences the contents of
the Registration Statement and Prospectus and related matters were discussed,
and although they have not verified the accuracy or completeness of the
statements contained in the Registration Statement or the Prospectus, nothing
has come to the attention of such counsel which leads them to believe that, at
the time the Registration Statement became effective and at all times subsequent
thereto up to and on the Closing Date and on any later date on which Option
Shares are to be purchased, the Registration Statement and any amendment or
supplement thereto, when the Registration Statement and any amendment or
supplement thereto became effective or was filed with the Commission (other than
financial statements including supporting schedules and other financial and
statistical information derived therefrom, as to which such counsel need express
no comment), contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or at the Closing Date or any later date on
which the Option Shares are to be purchased, as the case may be, the
Registration Statement, the Prospectus and any amendment or supplement thereto
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Seyburn, Kahn, Ginn, Bess, Xxxxxx and Xxxxxx, P.C. counsel for
the Selling Securityholders (except for GTCR Fund IV), to the effect that:
(i) each Selling Securityholder has full power (partnership,
trust or other) to enter into this Agreement, the Custody Agreement and
the Power of Attorney and to sell, assign, transfer and deliver to the
Underwriters the Securities to be sold by such Selling Securityholder
hereunder in accordance with the terms of this Agreement, and to
perform his or its obligations under the Custody Agreement; the
execution and delivery of this Agreement, the Custody Agreement and the
Power of Attorney have been duly authorized by all necessary action
(partnership, trust or other) of each Selling Securityholder; this
Agreement, the Custody Agreement and the Power of Attorney have been
executed and delivered by such Selling Securityholder; this Agreement
and, assuming due authorization,
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execution and delivery by the Custodian, the Custody Agreement and the
Power of Attorney, are the legal, valid, binding and enforceable
instruments of such Selling Securityholder, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and to any limitations under applicable law and
considerations of public policy which relate to indemnification and
contribution provisions;
(ii) the delivery by such Selling Securityholder to the
Underwriters of certificates for the Securities being sold hereunder by
such Selling Securityholder against payment therefor as provided
herein, will convey good and marketable title to such Securities to the
several Underwriters, free and clear of any security interests, liens,
encumbrances, equities, claims or other defects; and
(iii) The sale of the Securities to the Underwriters by such
Selling Securityholder pursuant to this Agreement, the compliance by
such Selling Securityholder with the other provisions of this Agreement
and the Custody Agreement and the consummation of the other
transactions herein contemplated do not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as has been obtained, and except
such as may be required for registration under state securities or blue
sky laws and, if the registration statement filed with respect to the
Securities (as amended) is not effective under the Act as of the time
of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act and the Exchange Act, or (B)
to such counsel's knowledge conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under any indenture, mortgage, deed of trust, lease or other
agreement or instrument to which such Selling Securityholder is a party
or by which such Selling Securityholder or any of such Selling
Securityholder's properties are bound, or any statute or any judgment,
decree, order, rule or regulation known to such counsel of any court or
other governmental authority or any arbitrator applicable to such
Selling Securityholder.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on
certificates of the Selling Securityholders, responsible officers of
the Company and public officials.
References to the Registration Statement and the Prospectus in
this paragraph (c) shall include any amendment or supplement thereto at
the date of such opinion.
(d) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Xxxxxxxx & Xxxxx counsel for GTCR Fund IV, to the effect that:
(i) GTCR Fund IV has full power and authority (corporate or
other) to enter into this Agreement, the Custody Agreement and the
Power of Attorney and to sell, assign,
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transfer and deliver to the Underwriters the Securities to be sold by
GTCR Fund IV hereunder in accordance with the terms of this Agreement,
and to perform its obligations under the Custody Agreement; the
execution and delivery of this Agreement, the Custody Agreement and the
Power of Attorney have been duly authorized by all necessary action
(partnership, trust or other) of GTCR Fund IV; this Agreement, the
Custody Agreement and the Power of Attorney have been executed and
delivered by GTCR Fund IV; this Agreement and, assuming due
authorization, execution and delivery by the Custodian, the Custody
Agreement and the Power of Attorney, are the legal, valid, binding and
enforceable instruments of GTCR Fund IV, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the rights and remedies of creditors generally and subject as
to enforceability, to general principles of equity (regardless of
whether applied in a court of equity or law) and to any limitations
under applicable law and considerations of public policy which relate
to indemnification and contribution provisions;
(ii) To such counsel's knowledge, no consent, approval,
authorization or order of the Commission under the Act is required to
be obtained by GTCR Fund IV for the consummation by GTCR Fund IV of the
transactions contemplated by this Agreement, the Custody Agreement or
the Power of Attorney in connection with the Securities to be sold by
GTCR Fund IV under this Agreement, except such as have been obtained;
and
(iii) the delivery by GTCR Fund IV to the Underwriters of
certificates for the Securities being sold hereunder by GTCR Fund IV
against payment therefor as provided herein, will convey good and
marketable title to such Securities to the several Underwriters, free
and clear of any security interests, liens, encumbrances, equities,
claims or other defects.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on
certificates of the Selling Securityholders, responsible officers of
the Company and public officials.
References to the Registration Statement and the Prospectus in
this paragraph (d) shall include any amendment or supplement thereto at
the date of such opinion.
(e) The Representatives shall have received an opinion, dated the Firm
Closing Date, of King & Spalding, counsel for the Underwriters, with respect to
the issuance and sale of the Firm Securities, the Registration Statement and the
Prospectus, and such other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(f) The Representatives shall have received from PricewaterhouseCoopers
LLP a letter or letters dated, respectively, the date hereof and the Firm
Closing Date, in form and substance satisfactory to the Representatives, to the
effect that:
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(i) they are independent accountants with respect to the
Company and Consolidated Reprographics within the meaning of the Act
and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules of the Company and Consolidated Reprographics
included in the Registration Statement and the Prospectus comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(iii) on the basis of their limited review in accordance with
standards established by the American Institute of Certified Public
Accountants of any interim unaudited consolidated financial statements
of the Company, Consolidated Reprographics and their subsidiaries
included in the Registration Statement and the Prospectus, and a
reading of the latest available interim unaudited consolidated
financial statements of the Company, Consolidated Reprographics and
their subsidiaries, carrying out certain specified procedures (which do
not constitute an examination made in accordance with generally
accepted auditing standards) that would not necessarily reveal matters
of significance with respect to the comments set forth in this
paragraph (iii), a reading of the minute books of the stockholders, the
board of directors and any committees thereof of the Company and
Consolidated Reprographics, officials of the Company and Consolidated
Reprographics, and inquiries of certain officials of the Company and
Consolidated Reprographics who have responsibility for financial and
accounting matters, nothing came to their attention that caused them to
believe that:
(A) the unaudited consolidated financial statements
of the Company, Consolidated Reprographics and their
subsidiaries included in the Registration Statement and the
Prospectus do not comply in form in all material respects with
the applicable accounting requirements of the Act and the
related published rules and regulations thereunder or are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited consolidated financial statements included in the
Registration Statement and the Prospectus;
(B) at a specific date not more than five business
days prior to the date of such letter, there was any change in
long-term debt of the Company or Consolidated Reprographics or
any decreases in net current assets or stockholders' equity of
the Company or Consolidated Reprographics, in each case
compared with amounts shown on the June 30, 1998 unaudited
consolidated balance sheet included in the Registration
Statement and the Prospectus, or for the period from June 30,
1998 to such specified date there were any decreases, as
compared with the prior comparable period, in net revenues,
income before income taxes or net income of the Company or
Consolidated Reprographics, except in all instances for
changes, decreases or increases set forth in such letter;
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(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting
records of the Company, Consolidated Reprographics and their
subsidiaries and are included in the Registration Statement and the
Prospectus, and have compared such amounts, percentages and financial
information with such records of the Company, Consolidated
Reprographics and their subsidiaries and with information derived from
such records and have found them to be in agreement, excluding any
questions of legal interpretation; and
(v) on the basis of a reading of the unaudited pro forma
consolidated financial data included in the Registration Statement and
the Prospectus, carrying out certain specified procedures that would
not necessarily reveal matters of significance with respect to the
comments set forth in this paragraph (v), inquiries of certain
officials of the Company, Consolidated Reprographics and their
subsidiaries who have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the unaudited pro
forma financial data, nothing came to their attention that caused them
to believe that the unaudited pro forma consolidated financial data do
not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of such data.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that (A) such letters shall be
accompanied by a written explanation from the Company and Consolidated
Reprographics as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such
changes, decreases or increases do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed with the
purchase and delivery of the Securities as contemplated by the
Registration Statement, as amended as of the date hereof.
References to the Registration Statement and the Prospectus in
this paragraph (f) with respect to either letter referred to above
shall include any amendment or supplement thereto at the date of such
letter.
(g) The Representatives shall have received a certificate, dated
the Firm Closing Date, of the principal executive officer and the principal
financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing
Date; the Registration Statement, as amended as of the Firm Closing
Date, does not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
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misleading, and the Prospectus, as amended or supplemented as of the
Firm Closing Date, does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Company has performed all covenants
and agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to
the best of the Company's knowledge, are contemplated by the
Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has sustained any
material loss or interference with its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any Material Adverse
Effect, or any development involving a prospective Material Adverse
Effect, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto).
(h) The Representatives shall have received a certificate from each
Selling Securityholder, dated the Firm Closing Date, to the effect that:
(i) the representations and warranties of such Selling
Securityholder in this Agreement are true and correct as if made on and
as of the Firm Closing Date;
(ii) such Selling Securityholder has performed all covenants
and agreements on his or its part to be performed or satisfied at or
prior to the Firm Closing Date.
(i) The Representatives shall have received from (i) each person
who is a director or officer of the Company and (ii) each Selling
Securityholder, an agreement to the effect that unless the Firm Closing Date
shall not have occurred by September 30, 1998, such person or entity will not,
directly or indirectly, without the prior written consent of Prudential
Securities Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or otherwise sell
or dispose (or announce any offer, sale, offer of sale, contract of sale,
pledge, grant of any option to purchase or other sale or disposition) of any
shares of Common Stock or any securities convertible into, or exercisable or
exchangeable for, Common Stock or other capital stock of the Company or any
right to purchase or acquire Common Stock or other capital stock of the Company
for a period of 90 days after the date of this Agreement, except for bona fide
gifts or transfers effected by such stockholders other than on any securities
exchange or in the over-the-counter market to donees or transferees that agree
to be bound by similar agreements, and except that GTCR Fund IV may make
distributions of Common Stock to its partners.
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(j) On or before the Firm Closing Date, the Representatives and counsel
for the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
(k) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading in the Nasdaq National Market.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
the Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to qualify the
Securities under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange
(each an "Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or
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supplement thereto, or any Application a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials provided or
prepared by the Company used in connection with the marketing of the
Securities, including without limitation, slides, videos, films and
tape recordings,
and will reimburse, as incurred, each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out
of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein;
and provided, further, that the Company will not be liable to any
Underwriter or any person controlling such Underwriter with respect to
any such untrue statement or omission made in any Preliminary
Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Securities from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented)
at or prior to the written confirmation of the sale of such Securities
to such person in any case where such delivery of the Prospectus (as
amended or supplemented) is required by the Act, unless such failure to
deliver the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 5(a)(iv) or 5(a)(v) of this
Agreement. This indemnity agreement will be in addition to any
liability which the Company may otherwise have. The Company will not,
without the prior written consent of the Underwriter or Underwriters
purchasing, in the aggregate, more than fifty percent of the
Securities, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or
not any such Underwriter or any person who controls any such
Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling
persons from all liability arising out of such claim, action, suit or
proceeding.
(b) Subject to subsection (g) of this Section, each Selling
Securityholder (except for GTCR Fund IV) severally and not jointly agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of Section 15 of the Act against any such losses,
claims, damages or liabilities to which such Underwriter or any such controlling
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person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement made by
such Selling Securityholder in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment
thereto, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or
(iii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto, or any Application or necessary to
make the statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action;
provided, however, that the Selling Securityholders will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or
any Application in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein; and provided, further,
that the Selling Securityholders will not be liable to any Underwriter
or any person controlling such Underwriter with respect to any such
untrue statement or omission made in any Preliminary Prospectus that is
corrected in the Prospectus (or any amendment or supplement thereto) if
the person asserting any such loss, claim, damage or liability
purchased Securities from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) at or prior to the
written confirmation of the sale of such Securities to such person in
any case where such delivery of the Prospectus (as amended or
supplemented) is required by the Act, unless such failure to deliver
the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 5(a)(iv) or 5(a)(v) of this
Agreement ; provided, further, however, that in the case of (ii) and
(iii) above, to the extent and only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by such Selling Securityholder. This indemnity
agreement will be in addition to any liability which the Selling
Securityholders may otherwise have. The Selling Securityholders will
not, without the prior written consent of the Underwriters purchasing
greater than fifty percent of the Securities, settle or compromise or
consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
may be
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sought hereunder (whether or not such Underwriter or any person who
controls such Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act is a party to such claim, action,
suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of the Underwriters and each such
controlling person from all liability arising out of such claim,
action, suit or proceeding.
(c) Subject to subsection (g) of this Section, GTCR Fund IV agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person may
become subject under the Act or otherwise, in each case to the extent, but only
to the extent that such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement made by GTCR Fund IV in Section 2(c) of this Agreement (other
than paragraph (vi) of such Section 2(c), which shall not survive the Firm
Closing Date or any Option Closing Date, as the case may be) and will reimburse,
as incurred, each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating, defending against or appearing as a
third-party witness in connection with any such loss, claim damage, liability or
action; provided, however, that GTCR Fund IV will not be liable to any
Underwriter or any person controlling such Underwriter with respect to any such
untrue statement or omission made in any Preliminary Prospectus or the
Prospectus that is corrected in the Prospectus (or any amendment or supplement
thereto) if the person asserting any such loss, claim, damage or liability
purchased Securities from such Underwriter but was not sent or given a copy of
the Prospectus (as amended or supplemented), other than documents incorporated
by reference therein, at or prior to the written confirmation of the sale of
such Securities to such person in any case where such delivery of the Prospectus
(as amended or supplemented) is required by the Act, unless such failure to
deliver the Prospectus (as amended, or supplemented) was a result of
noncompliance by the Company with Sections 5(a)(iv) or 5(a)(v) of this
Agreement. This indemnity agreement will be in addition to any liability which
GTCR Fund IV may otherwise have. GTCR Fund IV will not, without the prior
written consent of the Underwriter or Underwriters purchasing, in the aggregate,
more than fifty percent (50%) of the Securities, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not such Underwriter or any person who controls any such Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding.
(d) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, each Selling Securityholder, the
Attorney-in-Fact and each person, if any, who controls the Company or any
Selling Securityholder within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to which
the Company, any such
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director or officer of the Company, such Selling Securityholder or any such
controlling person of the Company or such Selling Securityholder may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person or such Selling Securityholder in connection with
investigating or defending any such loss, claim, damage, liability or any action
in respect thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have. The Representatives will
not, without the prior written consent of the Company or the Selling
Securityholders, as applicable, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder, unless such
settlement, compromise or consent includes an unconditional release of the
Company and its officers and directors and the Selling Securityholders from all
liability arising out of such claim, action, suit or proceeding.
(e) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
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subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party; provided, that such consent will not be unreasonably
withheld.
(f) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Securityholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by the Company and the Selling
Securityholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Securityholders or the Underwriters, the parties' relative intents, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Company, the Selling Securityholders and the Underwriters
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this paragraph (f). Notwithstanding any other provision of this paragraph
(f), no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the total public offering price of the Securities purchased
by
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such Underwriter under this Agreement, less the aggregate amount of any
damages that such Underwriter has otherwise been required to pay in respect of
the same or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (f), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company or any
Selling Securityholder within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, shall have the same rights to contribution as the Company
or such Selling Securityholder, as the case may be.
(g) The liability of each Selling Securityholder under the
representations and warranties contained in Sections 2 and 3 hereof and under
the indemnity and contribution agreements contained in the provisions of this
Section 8 shall be limited to an amount equal to the public offering price of
the Securities to be sold by such Selling Securityholder to the Underwriters
minus the amount of the underwriting discounts and commissions paid thereon to
the Underwriters by such Selling Securityholder.
9. Default of Underwriters. If one or more Underwriters default in
their obligations to purchase Firm Securities or Option Securities hereunder and
the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof if the default is with respect to the Firm Closing Date and
without liability for the Option Shares if such default is with respect to the
Option Closing Date. In the event of any default by one or more Underwriters as
described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the
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Option Closing Date, as the case may be, established as provided in Section 3
hereof for not more than seven business days in order that any necessary changes
may be made in the arrangements or documents for the purchase and delivery of
the Firm Securities or Option Securities, as the case may be. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 9. Nothing herein shall relieve any defaulting
Underwriter from liability for its default.
10. Default by Selling Securityholders. If on the Firm Closing Date or
Option Closing Date, as the case may be, any Selling Securityholder fails to
sell the Selling Securityholders' Firm Securities or Option Securities, as the
case may be, which such Selling Securityholder has agreed to sell on such date
as set forth herein, the Company agrees that it will sell that number of shares
of Common Stock to the Underwriters which represents the Selling
Securityholders' Firm Securities or Option Securities which such Selling
Securityholder has failed to so sell, or such lesser number as may be requested
by you.
11. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and its officers, the
Selling Securityholders and the several Underwriters set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, any Selling
Securityholders, any Underwriter or any controlling person referred to in
Section 8 hereof and (ii) delivery of and payment for the Securities. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 6 and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
12. Termination.
(a) This Agreement may be terminated with respect to the Firm
Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company or the Selling Securityholders given
prior to the Firm Closing Date or the related Option Closing Date, respectively,
in the event that the Company or the Selling Securityholder shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder at or prior thereto or, if at or
prior to the Firm Closing Date or such Option Closing Date, respectively,
(i) the Company or any of its subsidiaries shall have, in the
sole judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any material adverse change, or any
development involving a prospective Material Adverse Effect, except in
each case as described in or contemplated by the Prospectus (exclusive
of any amendment or supplement thereto);
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(ii) trading in the Common Stock shall have been suspended by
the Commission or the Nasdaq National Market;
(iii) trading in securities generally on the New York Stock
Exchange or in the Nasdaq National Market shall have been suspended or
minimum or maximum prices shall have been established on any such
exchange or market system;
(iv) a banking moratorium shall have been declared by New York
or United States authorities; or
(v) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the United States financial markets
that, in the sole judgment of the Representatives, makes it impractical
or inadvisable to proceed with the public offering or the delivery of
the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 12 shall be
without liability of any party to any other party except as provided in Section
11 hereof.
13. Information Supplied by Underwriters. The statements set forth in
the last paragraph on the front cover page and in the first and third paragraphs
under the heading "Underwriting" in any Preliminary Prospectus or the Prospectus
(to the extent such statements relate to the Underwriters) constitute the only
information furnished by any Underwriter through the Representatives to the
Company for the purposes of Sections 2(a)(ii) and 8 hereof. The Underwriters
confirm that such statements (to such extent) are correct.
14. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; if sent to the Company, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to the Company at 0000
Xxxxxxxxxx Xxxxxxx, Xxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, with a copy
to Seyburn, Kahn, Ginn, Bess, Xxxxxx and Xxxxxx, P.C., 0000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxx, Esq.; if sent
to the Selling Securityholders shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Xxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxxxxxx, as Attorney-in-Fact c/o the Company at 0000 Xxxxxxxxxx Xxxxxxx,
Xxxx, Xxxxxxxx 00000, with a copy to Seyburn, Kahn, Ginn, Bess, Xxxxxx and
Xxxxxx, P.C., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxxx X. Xxxxxx, Esq..
15. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the several Underwriters, the Company, the Selling
Securityholders and their respective successors
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and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company and the Selling Securityholders contained in Section 8 of this
Agreement shall also be for the benefit of any person or persons who control any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Underwriters contained in Section 8
of this Agreement shall also be for the benefit of the directors of the Company,
the officers of the Company who have signed the Registration Statement and any
person or persons who control the Company or the Selling Securityholders within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Securities from any Underwriter shall be deemed a successor because
of such purchase.
16. Applicable Law. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
17. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, each Selling Securityholder accepts
for itself and in connection with its properties, generally and unconditionally,
the nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. The Selling Shareholder designates
and appoints Xxxx X. Xxxxxx, and such other persons as may hereafter be selected
by the Selling Shareholder irrevocably agreeing in writing to so serve, as its
agent to receive on its behalf service of all process in any such proceedings in
any such court, such service being hereby acknowledged by the Selling
Shareholder to be effective and binding service in every respect. A copy of any
such process so served shall be mailed by registered mail to the Selling
Securityholder at its address provided in Section 13 hereof; provided, however,
that, unless otherwise provided by applicable law, any failure to mail such copy
shall not affect the validity of service of such process. If any agent appointed
by the Selling Shareholder refuses to accept service, the Selling Shareholder
hereby agrees that service of process sufficient for personal jurisdiction in
any action against the Selling Shareholder in the State of New York may be made
by registered or certified mail, return receipt requested, to the Selling
Shareholder at its address provided in Section 13 hereof, and the Selling
Shareholder hereby acknowledges that such service shall be effective and binding
in every respect. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of any Underwriter
to bring proceedings against the Selling Shareholder in the courts of any other
jurisdiction.
18. 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.
43
44
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company, each
Selling Securityholder and each of the several Underwriters.
Very truly yours,
LASON, INC.
By:
----------------------------------------------
Xxxx X. Xxxxxx
President and Chief Executive Officer
SELLING SECURITYHOLDERS
By:
----------------------------------------------
Xxxx X. Xxxxxx, as attorney-in-fact
for the Selling Securityholders listed
in Schedule 2 attached hereto
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first above written.
PRUDENTIAL SECURITIES INCORPORATED
BANCAMERICA XXXXXXXXX XXXXXXXX
XXXXXXX XXXXX & COMPANY, L.L.C.
XXXXXXXXX & COMPANY, INC.
PAINEWEBBER INCORPORATED
THE XXXXXXXX-XXXXXXXX COMPANY LLC
By: PRUDENTIAL SECURITIES INCORPORATED
By:
----------------------------------
Xxxx-Xxxxxx Canfin
Managing Director
For itself and on behalf of the Representatives.
45
SCHEDULE 1
UNDERWRITERS
Number of
Firm
Securities to
Underwriter be Purchased
----------- ------------
Prudential Securities Incorporated.............................
BancAmerica Xxxxxxxxx Xxxxxxxx.................................
Xxxxxxx Xxxxx & Company, L.L.C.................................
Xxxxxxxxx & Company, Inc.......................................
PaineWebber Incorporated.......................................
The Xxxxxxxx-Xxxxxxxx Company LLC..............................
--------
Total..................................................========
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SCHEDULE 2
SELLING SECURITYHOLDERS
Number of Firm Maximum
Securities to Number of Option
Selling Securityholders be Sold Securities to be Sold
----------------------- -------------- ---------------------
----------- ------------
Total............... =========== ============
