3,048,780 shares
ALLIANT TECHSYSTEMS INC.
Common Stock
UNDERWRITING AGREEMENT
----------------------
December 4, 2001
Xxxxxx Brothers Inc.
Credit Suisse First Boston Corporation
In care of Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Dear Sirs:
Xxxxxx, Inc., a Delaware corporation (the "Selling Stockholder"),
proposes to sell an aggregate of 3,048,780 shares (the "Firm Stock") of the
common stock, par value $.01 per share (the "Common Stock"), of Alliant
Techsystems, Inc., a Delaware corporation (the "Company"). In addition, the
Company proposes to grant to Xxxxxx Brothers Inc. and Credit Suisse First Boston
Corporation (the "Underwriters"), for which Xxxxxx Brothers Inc. is acting as
representative (the "Representative"), an option to purchase up to an additional
457,317 shares of the Common Stock on the terms and for the purposes set forth
in Section 3 (the "Option Stock"). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the "Stock." This is to confirm
the agreement concerning the purchase of the Stock from the Company and the
Selling Stockholder by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, the Underwriters that:
(a) A registration statement on Form S-3 and two amendments
thereto, with respect to the Stock has (i) been prepared by the Company
in conformity with the requirements of the United States Securities Act
of 1933 (the "Securities Act") and the rules and regulations (the "Rule
and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under
the Securities Act. Copies of such registration statement and the
amendments thereto have been delivered by the Company to the
Underwriters. As used in this Agreement, "Effective Time" means the
date and the time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration
statement, or amendments thereof, before it became effective under the
Securities Act and any prospectus filed with the Commission by the
Company with the consent of the Underwriters pursuant to Rule 424(a) of
the Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time, including any
documents incorporated by reference therein at such time and all
information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations in accordance with
Section 6(a) hereof and deemed to be a part of the registration
statement as of the Effective Time pursuant to paragraph (b) of Rule
430A of the Rules and Regulations; and "Prospectus" means such final
prospectus, as first filed with the Commission pursuant to paragraph
(1) or (4) of Rule 424(b) of the Rules and Regulations. Reference made
herein to any Preliminary Prospectus or to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of
the date of such Preliminary Prospectus or the Prospectus, as the case
may be, and any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any document filed under the United States Securities
Exchange Act of 1934 (the "Exchange Act") after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference therein as of the date of such amendment or
supplement; and any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the Company
filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference
in the Registration Statement as of the date of such amendment. The
Commission has not issued any order preventing or suspending the use of
any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform, in all material respects
to the requirements of the Securities Act and the Rules and Regulations
and do not and will not, as of the applicable effective date (as to the
Registration Statement and any amendment thereto), and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided that
no representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Company by the Underwriters or the Selling Stockholder specifically for
inclusion therein.
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(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with Commission, as the case
may be, will conform in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(d) The Company and each of its subsidiaries (as defined in
Section 18) have been duly incorporated or organized and are validly
existing as corporations or limited liability companies, respectively,
in good standing under the laws of their respective jurisdictions of
incorporation or organization, respectively, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property
or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or have such
power or authority would not, singularly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(e) The Company has an authorized capitalization as set forth
in the Prospectus under the heading "Capitalization", and all of the
issued shares of capital stock of the Company, including the Firm
Stock, have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description thereof contained in
the Prospectus; and all of the issued shares of capital stock or
membership interests of each subsidiary of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable
and (except for directors' qualifying shares and third party interests
in joint ventures in which the Company invests and except as set forth
in the Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens (other than liens created pursuant to or
permitted by the credit agreement between the Company and The Chase
Manhattan Bank, as administrative agent, on April 20, 2001 (the "Senior
Secured Credit Facilities")), encumbrances, equities or claims.
(f) The unissued shares of Option Stock to be issued and sold
by the Company to the Underwriter hereunder have been duly and validly
authorized and when issued and delivered against payment therefor as
provided herein, will be
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duly and validly issued, fully paid and non-assessable and will conform
to the description thereof contained in the Prospectus.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated
hereby will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan 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 is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, except with respect to this clause, any such
breach, violation, default, lien, charge or encumbrance that,
singularly or in the aggregate, could not have a Material Adverse
Effect, nor will such actions result in any violation of the provisions
of the charter or by-laws of the Company or any of its subsidiaries or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties or assets; and except
for the registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable state securities
laws in connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby.
(i) There are no contracts, agreements or understandings
between the Company and any person granting such person the right
(other than the rights of the Selling Stockholder which have been
satisfied) to require the Company to file a registration statement
under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Securities Act.
(j) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock
options plans or other employee compensation plans or pursuant to
outstanding options, rights or warrants.
(k) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by
4
reference in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not
been any change in the capital stock or long term debt of the Company
or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus.
(l) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus, other than the
financial information relating to the ammunition and related products
business ("SEG") of the Selling Stockholder, present fairly the
financial condition and results of operations of the entities purported
to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise stated therein; and the Company has no
reason to believe that the representation of the Selling Stockholder in
Section 2(e) hereof is not true and correct in all material respects.
The pro forma financial information contained in the Prospectus has
been prepared on a basis consistent with the historical financial
statements contained in or incorporated by reference in the Prospectus
(except for the pro forma adjustments specified therein), includes all
material adjustments to the historical financial information required
by Rule 11-02 of Regulation S-X under the Securities Act and the
Exchange Act to reflect the transactions described in the Prospectus,
gives effect to assumptions deemed reasonable in the view of the
management of the Company and fairly presents the historical and
proposed transactions contemplated by the Prospectus.
(m) Deloitte & Touche, LLP who have certified certain
financial statements of the Company, whose report appears in the
Prospectus or is incorporated by reference therein and who have
delivered the initial letter referred to in Section 9(h) hereof, are
independent public accountants as required by the Securities Act and
the Rules and Regulations; and Ernst & Young LLP, who have certified
certain financial statements of the Company, whose report appears in
the Prospectus or is incorporated by reference therein and who have
delivered the initial letter referred to in Section 9(h) hereof, are
independent public accountants as required by the Securities Act and
the Rules and Regulations.
(n) The Company and each of its subsidiaries have good and
marketable title in fee simple to, or have valid rights to lease or
otherwise use, all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or (i) arise under the Senior Secured Credit Facilities,
5
(ii) do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries or (iii)
could not reasonably be expected to have a Material Adverse Effect; and
all real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries.
(o) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as
management deems adequate for the conduct of their respective
businesses and the value of their respective properties and as is
customary for companies engaged in similar businesses in similar
industries. Neither the Company nor any of its subsidiaries has
received notice from any insurer or agent of such insurer (i) that
capital improvements or other expenditures are required or necessary to
be made in order to continue such insurance or (ii) that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or that it will be unable 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.
(p) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
("Intellectual Property") necessary for the conduct of their respective
businesses. The Company has no knowledge of any infringement by it or
its subsidiaries of any Intellectual Property of others, and the
Company and its subsidiaries have not received any notice of any claim
of conflict with any such rights of others which, if valid, could have
a Material Adverse Effect.
(q) Except as set forth in the Prospectus, (i) there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or assets of
the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
singularly or in the aggregate, might have a Material Adverse Effect
and (ii) to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others.
(r) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described
6
in the Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations.
(t) No relationship, direct or indirect, exists between or
among the Company, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company, on the other hand,
which is required to be described in the Prospectus and which is not so
described.
(u) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which might be
expected to have a Material Adverse Effect.
(v) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such
qualification. The Company has filed all federal, state and local
income and franchise tax returns required to be filed by it through the
date hereof and has paid all taxes due thereon to the extent due and
payable, and no tax deficiency has been determined adversely to the
Company or any of its subsidiaries which has had a Material Adverse
Effect, nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries, might have a Material Adverse Effect.
(w) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted
any securities, other than pursuant to an option plan or other benefit
plan existing on the date hereof, (ii) incurred any material liability
or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business,
(iii) entered into any material transaction not in the ordinary course
of business or (iv) declared or paid any dividend on its capital stock.
(x) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial
7
statements and to maintain accountability for its assets, (C) access to
its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(y) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in
violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business.
(z) Neither the Company nor, to the best knowledge of the
Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its
subsidiaries has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(aa) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic
wastes, medical wastes, hazardous wastes or hazardous substances by the
Company or any of its subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from any of
the property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable Environmental Law (as
defined below) or any permit, license or other approval required under
any Environmental Law, or which would require remedial action under any
applicable Environmental Law, except for any violation or remedial
action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company or any
of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not
have or would not be
8
reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect. For purposes of paragraphs (aa)
and (bb), the terms "hazardous wastes", "toxic wastes", "hazardous
substances" and "medical wastes" shall have the meanings specified in
any applicable Environmental Law.
(bb) Other than as described in the Prospectus, the Company
and its subsidiaries (i) are in compliance with any and all applicable
foreign, Federal, state and local laws, regulations, codes, ordinances,
orders, decrees or judgments relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) possess all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses, and are in
compliance with all terms and conditions of any such permit, license or
approval, and (iii) have not received notice of any actual or potential
liability under Environmental Laws (including actual or potential
liability relating to the investigation or remediation of any disposal
or release of hazardous or toxic substances or wastes, pollutants or
contaminants), except where such noncompliance with Environmental Laws
or failure to receive and comply with required permits, licenses or
other approvals would not, singularly or in the aggregate, have a
Material Adverse Effect.
(cc) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures reasonably expected or required for clean-up, closure of
properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities
and potential liabilities to third parties); except as specifically
described in the Prospectus, on the basis of such review, the Company
has reasonably concluded that such associated costs and liabilities
would not, singularly or in the aggregate, have a Material Adverse
Effect.
(dd) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company
act of 1940 and the rules and regulations of the Commission thereunder.
(ee) The Company possess all material licenses, certificates,
authorizations and permits issued by, and have made all declarations
and filings with, the appropriate federal, state or foreign regulatory
agencies or bodies which are necessary or desirable for the ownership
of their respective properties or the conduct of their respective
businesses as described in the Prospectus, except where the failure to
possess or make the same would not, singularly or in the aggregate,
have a Material Adverse Effect, and the Company has not received
notification of any revocation or modification of any such license,
certificate,
9
authorization or permit or has any reason to believe that any such
license, certificate, authorization or permit will not be renewed in
the ordinary course.
2. Representations, Warranties and Agreements of the Selling
Stockholder. The Selling Stockholder represents and warrants to, and agrees
with, the Underwriters that:
(a) Immediately prior to the First Delivery Date (as defined
in Section 5 hereof), the Selling Stockholder will have good and valid
title to the shares of Stock to be sold by the Selling Stockholder
hereunder on such date, free and clear of all liens, encumbrances,
equities or claims (except for those liens, encumbrances, equities or
claims that will be eliminated immediately upon the closing of the
transactions contemplated by this Agreement); and upon delivery of such
shares and payment therefor pursuant hereto, good and valid title to
such shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the Underwriters.
(b) The Selling Stockholder has full right, power and
authority to enter into this Agreement; the execution, delivery and
performance of this Agreement, by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions
contemplated hereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Selling Stockholder is a party or
by which the Selling Stockholder is bound or to which any of the
property or assets of the Selling Stockholder is subject, nor will such
actions result in any violation of the provisions of the charter or
by-laws of the Selling Stockholder or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property or assets of
the Selling Stockholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws in connection with the
purchase and distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of the
transactions contemplated hereby.
(c) The Registration Statement and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, do not and will not, as of the
applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required
to be stated
10
therein or necessary to make the statements therein not misleading but
in each case only to the extent that the 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 or on behalf of the Selling Stockholder specifically for
inclusion therein; provided that no representation or warranty is made
as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Company by the Underwriters
specifically for inclusion therein.
(d) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to, or which has
constituted or which might reasonably be expected to, cause or result
in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the shares of the
Stock.
(e) The financial information relating to SEG filed as part of
the Registration Statement or included or incorporated by reference in
the Prospectus presents fairly the financial condition and results of
operations of SEG, at the dates and for the periods indicated, and has
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as otherwise stated therein.
3. Purchase of the Stock by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Selling Stockholder hereby agrees to sell
3,048,780 shares of the Firm Stock to the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares
of the Firm Stock set opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as the
Representative may determine
In addition, the Company grants to the Underwriters an option to
purchase up to 457,317 shares of Option Stock. Such option is granted for the
purpose of covering over-allotments in the sale of Firm Stock and is exercisable
as provided in Section 5 hereof. Shares of Option Stock shall be purchased for
the account of the Underwriters. The price of both the Firm Stock and any Option
Stock shall be $[ ] per share.
The Company and the Selling Stockholder shall not be obligated to
deliver any of the Stock to be delivered on any Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
4. Offering of Stock by the Underwriters. Upon authorization by the
Representative of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions set forth
in the Prospectus.
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5. Delivery of and Payment for the Stock. Delivery of and payment for
the Firm Stock shall be made at the office of Cravath, Swaine & Xxxxx, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York City time, on
the third full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the
Representative and the Company. This date and time are sometimes referred to as
the "First Delivery Date". On the First Delivery Date, the Selling Stockholder
shall deliver or cause to be delivered certificates representing the Firm Stock,
or oral authorizations to the transfer agent and registrar for the Firm Stock
for electronic transfer of the Firm Stock, to the Representative for the account
of each Underwriter against payment to or upon the order of the Selling
Stockholder of the purchase price by wire transfer in immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. Upon delivery, the Firm Stock shall be registered in
such names and in such denominations as the Representative shall request in
writing not less than two full business days prior to the First Delivery Date.
If necessary, for the purpose of expediting the checking and packaging of the
certificates for the Firm Stock, the Company and the Selling Stockholder shall
make the certificates representing the Firm Stock available for inspection by
the Representative in New York, New York, not later than 2:00 P.M., New York
City time, on the business day prior to the First Delivery Date.
The option granted in Section 3 will expire 30 days after the date of
this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Company by the Representative. Such notice
shall set forth the aggregate number of shares of Option Stock as to which the
option is being exercised, the names in which the shares of Option Stock are to
be registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representative, when the
shares of Option Stock are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the option shall
have been exercised. The date and time the shares of Option Stock are delivered
are sometimes referred to as a "Second Delivery Date" and the First Delivery
Date and any Second Delivery Date are sometimes each referred to as a "Delivery
Date".
Delivery of and payment for the Option Stock shall be made at the place
specified in the first sentence of the first paragraph of this Section 5 (or at
such other place as shall be determined by agreement between the Representative
and the Company) at 10:00 A.M., New York City time, on such Second Delivery
Date. On such Second Delivery Date, the Company shall deliver or cause to be
delivered the certificates representing the Option Stock, or oral authorizations
to the transfer agent and registrar for the Option Stock for electronic transfer
of the Option Stock, to the Representative for the account of each Underwriter
against payment to or upon the order of the Company of the purchase price by
wire transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of the each Underwriter hereunder. Upon delivery,
the Option Stock shall be registered in such names and in such denominations as
the Representative shall request in the aforesaid written notice. If necessary,
for the purpose of expediting the checking and packaging of the certificates for
the Option Stock, the Company shall make the certificates representing the
Option Stock available for inspection by the
12
Representative in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to such Second Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representative and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than Commission's close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Securities Act; to make no further amendment
or any supplement to the Registration Statement or to the Prospectus
prior to the last Delivery Date except as permitted herein; to advise
the Representative, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representative with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Stock; to advise the Representative, promptly
after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to the Representative and counsel for
the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith.
(c) To deliver promptly to the Underwriters such number of the
following documents as the Representative shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of per share
earnings) (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus and (iii) any document incorporated
by reference in the Prospectus (excluding exhibits thereto); and, if
the delivery of a prospectus is required at any time after the
Effective Time in connection with the offering or sale of the Stock or
any other securities relating thereto and if at such time any events
shall have occurred as a result of which the
13
Prospectus as then amended or supplemented would include an 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 when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, to
notify the Representative and, upon its request, to file such document
and to prepare and furnish without charge to it and to any dealer in
securities as many copies as the Representative may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representative, be required by the Securities Act or requested by the
Commission.
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representative and counsel for the Underwriters and obtain the
consent of the Representative to the filing, which consent will not be
unreasonably withheld.
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 455 days after
the end of the Company's current fiscal quarter), to make generally
available to the Company's security holders and to deliver to the
Representative an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158).
(g) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Stock for offering
and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Stock.
(h) For a period of 90 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition by any
person at any time in the future of) any shares of Common Stock or
securities convertible into or exchangeable for Common Stock (other
than the Stock and shares issued pursuant to employee benefit plans,
qualified
14
stock option plans or other employee compensation plans existing on the
date hereof or pursuant to currently outstanding options, warrants or
rights), or sell or grant options, rights or warrants with respect to
any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the grant of options pursuant
to option plans existing on the date hereof), or (2) enter into any
swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of
such shares of Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or
other securities, in cash or otherwise, in each case without the prior
written consent of Xxxxxx Brothers Inc.
(i) Prior to the Effective Date, to apply for the listing of
the Stock on the New York Stock Exchange, and to use its best efforts
to complete that listing, subject only to official notice of issuance
prior to the First Delivery Date.
(j) To apply the net proceeds from the sale of the Option
Stock being sold by the Company as set forth in the Prospectus;
(k) and to take such steps as shall be necessary to ensure
that neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission thereunder.
7. Further Agreements of the Selling Stockholder. The Selling
Stockholder agrees:
(a) That the Stock to be sold by the Selling Stockholder
hereunder is subject to the interest of the Underwriters and that the
obligations of the Selling Stockholder hereunder shall not be
terminated by any act of the Selling Stockholder, by operation of law
or the occurrence of any other event.
(b) To deliver to the Representative prior to the First
Delivery Date a properly completed and executed United States Treasury
Department Form W-8.
8. Expenses. The Selling Stockholder agrees to pay the costs and
expenses related to the offering and sale of the Stock, including (a)
underwriting discounts, (b) the costs incident to the authorization, issuance,
sale and delivery of the Stock and any taxes payable in that connection; (c) the
costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement and any amendments and exhibits thereto; (d) the
costs of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in each
case, exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus or any document incorporated by reference therein,
all as provided in this Agreement; (e) the costs of producing and distributing
this Agreement and any other related documents in connection with the offering,
purchase, sale and delivery of the stock; (f) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of sale of the Stock;
15
(g) any applicable listing or other fees; (h) the fees and expenses of
qualifying the Stock under the securities laws of the several jurisdictions as
provided in Section 6(g) and of preparing, printing and distributing a Blue Sky
Memorandum; (i) all expenses in connection with meetings with prospective
investors and any other "roadshow" expenses (including travel expenses), (j)
fees and expenses of counsel to the Selling Stockholder and (k) all other costs
and expenses incident to the performance of the obligations of the Selling
Stockholder under this Agreement; provided, except as provided in this Section 8
and in Section 3 the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Stock which they may sell and the expenses of advertising any offering of the
Stock made by the Underwriters; provided further, the Company shall pay (x) the
fees and expenses of its counsel and its current and former auditors, (y) any
transfer taxes payable in connection with its sales of Option Stock to the
Underwriters, and (z) to the Selling Stockholder up to $5 million of all costs
and expenses relating to the offering and sale of the Stock described above,
including the underwriting discounts in clause (a) but excluding those costs and
expenses in clauses (x) and (y).
9. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company and the
Selling Stockholder contained herein, to the performance by the Company and the
Selling Stockholder of their obligations hereunder, and to each of the following
additional terms and conditions:
(a) The Company and the Selling Stockholder shall have
completed the transactions contemplated by the stock purchase agreement
dated as of November 6, 2001 among Alliant Techsystems, Inc., Xxxxxx
International Inc. and Xxxxxx, Inc. (the "SEG Purchase Agreement"), and
the Company shall have completed delivery of the Firm Stock to the
Selling Stockholder.
(b) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any request of
the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with.
(c) No Underwriter shall not have discovered and disclosed to
the Company on or prior to such Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of
Cravath, Swaine & Xxxxx, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Stock,
the Registration
16
Statement and the Prospectus, and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company and the Selling Stockholder shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(e) Xxxxxx & Whitney LLP shall have furnished to the
Representative its written opinion, as counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representative, to the effect
that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware, is duly qualified to do business and is in
good standing as a foreign corporation in the States of
Alabama, Arizona, Arkansas, California, Colorado, Florida,
Georgia, Hawaii, Illinois, Iowa, Kansas, Louisiana, Maryland,
Massachusetts, Michigan, Minnesota, Mississippi, New
Hampshire, New Jersey, New Mexico, New York, Ohio,
Pennsylvania, Rhode Island, Texas, Utah, Virginia, Washington,
West Virginia, Wisconsin and Wyoming and the District of
Columbia, with corporate power to own or hold its properties
and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus under the heading
"Capitalization", and the shares of Stock have been duly
authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained
in the Prospectus under the heading "Description of Capital
Stock";
(iii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Stock pursuant to the
Company's charter or by-laws or any agreement or other
instrument filed as or incorporated by reference as an Exhibit
to the Company's most recent Annual Report on Form 10-K as
filed with the Commission;
(iv) To such counsel's knowledge and other than as
set forth in the Prospectus, (i) there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any
of its subsidiaries, might have a Material Adverse Effect on
the consolidated financial position, stockholders' equity,
results of operations, business or prospects of the Company
and its subsidiaries; and (ii) no such proceedings are overtly
threatened by governmental authorities or others;
17
(v) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge
of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(vi) The Registration Statement and the Prospectus
and any further amendments or supplements thereto made by the
Company prior to such Delivery Date (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act
and the Rules and Regulations; the documents incorporated by
reference in the Prospectus and any further amendment or
supplement to any such incorporated document made by the
Company prior to such Delivery Date (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act as
applicable, and the rules and regulations of the Commission
thereunder;
(vii) The statements contained in the Prospectus
under the caption "Principal United States Federal Tax
Considerations to Non-U.S. Holders", insofar as they describe
federal statutes, rules and regulations, constitute a fair
summary thereof;
(viii) All of the issued and outstanding shares of
the Firm Stock have been duly and validly authorized and
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus;
(ix) This Agreement has been duly authorized,
executed and delivered by the Company;
(x) The issue and sale of the shares of Option Stock
being delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument filed as or
incorporated by reference as an exhibit to the Company's most
recent Annual Report on Form 10-K as filed with the Commission
to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to
18
which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of
the Company or any of its subsidiaries or any statute or any
order, rule or regulation known to such counsel of any
governmental authority or regulatory body of the United States
of America or the State of Minnesota, or any order known to
such counsel of any court or governmental authority having
jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets; and, except for the
registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the
purchase and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or
body is required to be obtained or made by the Company for the
execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby;
(xi) No contracts or agreements between the Company
and any person filed as or incorporated by reference as an
exhibit to the Company's most recent Annual Report on Form
10-K as filed with the Commission, grant such person the right
(other than rights which have been waived or satisfied) to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company
to include such securities in the securities registered
pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement
filed by the Company under the Securities Act; and
(xii) There are no contracts or documents filed as or
incorporated by reference as an Exhibit to the Company's most
recent Annual Report on Form 10-K as filed with the
Commission, which are required to be described in the
Prospectus by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus.
In rendering such opinion, such counsel may (i) state that its opinion
is limited to matters governed by the Federal laws of the United States
of America, the laws of the State of Minnesota and the General
Corporation Law of the State of Delaware and that such counsel is not
admitted in the state of Delaware and (ii) state that, as to questions
of fact material to its opinion, it has relied upon certificates of
officers of the Company, provided that such counsel shall state that,
to the extent they have relied on such certificates, they believe that
they are justified in relying upon such certificates. Such counsel
shall also have furnished to the Representative a written statement,
addressed to it and dated such Delivery Date, in form and substance
satisfactory to the Representative, to the effect that (x) such counsel
has acted as counsel to the Company in connection with the preparation
of the Registration
19
Statement, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead it to believe that (I) the
Registration Statement, as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading or (II) any document incorporated by reference in
the Prospectus or any further amendment or supplement to any such
incorporated document made by the Company prior to such Delivery Date,
when they became effective or were filed with the Commission, as the
case may be, contained, in the case of a registration statement which
became effective under the Securities Act, any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, or, in the case of other documents which were filed under
the Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(f) Xxx X. Xxxxxxxx, the general counsel for the Company,
shall have furnished to the Representative her written opinion, as
counsel to the Company, addressed to the Underwriters and dated the
First Delivery Date, in form and substance reasonably satisfactory to
the Representative, to the effect that:
(i) The Company is not required to be qualified to do
business as a foreign corporation in any state or territory of
the United States of America, other than Alabama, Arizona,
Arkansas, California, Colorado, Florida, Georgia, Hawaii,
Illinois, Iowa, Kansas, Louisiana, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, New Hampshire, New Jersey,
New Mexico, New York, Ohio, Pennsylvania, Rhode Island, Texas,
Utah, Virginia, Washington, West Virginia, Wisconsin and
Wyoming and the District of Columbia, except where the failure
to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect;
(ii) The subsidiaries of the Company are duly
incorporated, validly existing and in good standing under the
laws of the state of their respective incorporation and are
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where such failure to be so qualified,
be in good standing or have such power or authority would not,
individually or in the aggregate, have a Material Adverse
Effect;
20
(iii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued and
outstanding shares of the Company have been duly and validly
authorized and issued, are fully paid and nonassessable and
conform to the description thereof contained in the
Prospectus; and
(iv) To the best of such counsel's knowledge, there
are no contracts or other documents which are required to be
(A) filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not
been filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules
and Regulations or (B) filed as or incorporated by reference
as an Exhibit to the Company's most recent Annual Report on
Form 10-K as filed with the Commission, which have not been so
filed or incorporated by reference;
(g) The counsel for the Selling Stockholder shall have
furnished to the Representative its written opinion, as counsel to the
Selling Stockholder, addressed to the Underwriters and dated the First
Delivery Date, in form and substance reasonably satisfactory to the
Representative, to the effect that:
(i) The Selling Stockholder has full right, power and
authority to enter into this Agreement; the execution,
delivery and performance of this Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of
the transactions contemplated hereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Selling Stockholder is a party or by which the Selling
Stockholder is bound or to which any of the property or assets
of the Selling Stockholder is subject, nor will such actions
result in any violation of the provisions of the charter or
by-laws of the Selling Stockholder any statute or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Selling Stockholder or the property or assets of the Selling
Stockholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement by the Selling Stockholder and the consummation by
the Selling Stockholder of the transactions contemplated
hereby;
21
(ii) This Agreement was authorized, executed and
delivered by or on behalf of the Selling Stockholder;
(iii) Immediately prior to the First Delivery Date,
the Selling Stockholder had good and valid title to the shares
of Stock to be sold by the Selling Stockholder under this
Agreement, free and clear of all liens, encumbrances, equities
or claims (except for those liens, encumbrances, equities or
claims that will be eliminated immediately upon the closing of
the transactions contemplated by this Agreement), and full
right, power and authority to sell, assign, transfer and
deliver such shares to be sold by the Selling Stockholder
hereunder; and
(iv) Good and valid title to the shares of Stock to
be sold by the Selling Stockholder under this Agreement, free
and clear of all liens, encumbrances, equities or claims, has
been transferred to the Underwriters.
In rendering such opinion, such counsel may (i) state that its opinion
is limited to matters governed by the Federal laws of the United States
of America, the laws of the State of New York and the General
Corporation Law of the State of Delaware and that such counsel is not
admitted in the State of Delaware and (ii) in rendering the opinion in
Section 9(g)(iii) and Section 9(g)(iv) above, rely upon a certificate
of the Selling Stockholder in respect of matters of fact as to
ownership of and liens, encumbrances, equities or claims on the shares
of Stock sold by the Selling Stockholder, provided that such counsel
shall furnish copies thereof to the Representative and state that they
believe that both the Underwriters and they are justified in relying
upon such certificate. Such counsel shall also have furnished to the
Representative a written statement, addressed to the Underwriters and
dated the First Delivery Date, in form and substance satisfactory to
the Representative, to the effect that (x) such counsel has acted as
counsel to the Selling Stockholder on a regular basis and has acted as
counsel to the Selling Stockholder in connection with the preparation
of the Registration Statement, and (y) based on the foregoing, no facts
have come to the attention of such counsel which lead it to believe
that the Registration Statement, as of the Effective Date, contained
any untrue statement of a material fact relating to the Selling
Stockholder or omitted to state such a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus contains any untrue statement of a
material fact relating to the Selling Stockholder or omits to state
such a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The foregoing opinion and
statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus.
(h) The Representative shall have received from Cravath,
Swaine & Xxxxx, counsel for the Underwriters, such opinion or opinions,
dated such Delivery Date, with respect to the issuance and sale of the
Stock, the Registration
22
Statement, the Prospectus and other related matters as the
Representative may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(i) At the time of execution of this Agreement, the
Representative shall have received letters from Deloitte & Touche LLP
and Ernst & Young LLP in form and substance satisfactory to the
Representative, addressed to the Underwriters and dated the date hereof
(i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five days prior
to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in connection
with registered public offerings.
(j) With respect to the letters of Deloitte & Touche LLP and
Ernst & Young LLP, referred to in the preceding paragraph and delivered
to the Representative concurrently with the execution of this Agreement
(the "initial letters"), the Company shall have furnished to the
Representative a letter (the "bring-down letters") of such accountants,
addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
of the bring-down letter (or, with respect to matters involving changes
or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set
forth in the initial letter.
(k) The Company shall have furnished to the Representative a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its chief financial officer
stating that:
(i) The representations and warranties of the Company
in Section 1 are true and correct as of such Delivery Date;
the Company has complied with all its agreements contained
herein to be performed on or prior to such Delivery Date; and
the conditions set forth in Sections 9(b) and 9(m) have been
fulfilled; and
23
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of
the Effective Date, the Registration Statement and Prospectus
did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectus.
(l) The Selling Stockholder shall have furnished to the
Representative on the First Delivery Date a certificate, dated the
First Delivery Date, signed by, or on behalf of, the Selling
Stockholder stating that the representations and warranties of the
Selling Stockholder contained herein are true and correct as of the
First Delivery Date and that the Selling Stockholder has complied with
all agreements contained herein to be performed by the Selling
Stockholder at or prior to the First Delivery Date.
(m) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii) since the
respective dates as of which information is given in the Prospectus,
there shall not have been any change in the capital stock (other than
pursuant to an option plan or other benefit plan existing on the date
hereof) or long-term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representative, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(n) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall
24
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change
in general economic, political or financial conditions (or the effect
of international conditions on the financial markets in the United
States shall be such) as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the public
offering or delivery of the Stock being delivered on such Delivery Date
on the terms and in the manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
10. Condition to Selling Stockholder's Obligation.
The obligation of the Selling Stockholder to sell the Firm Stock to the
Underwriters pursuant to Section 3 is subject to the condition that the Company
and the Selling Stockholder shall have completed the transactions contemplated
by the SEG Purchase Agreement and the Company shall have completed delivery of
the Firm Stock to the Selling Stockholder.
11. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter, its directors, officers and employees and each person, if
any, who controls any Underwriter within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases
and sales of Stock), to which that Underwriter, director, officer,
employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
in any amendment or supplement thereto, (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto
any material fact required to be stated therein or necessary to make
the statements therein not misleading or (iii) any act or failure to
act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Stock or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out
of or based upon matters covered by clause (i) or (ii) above (provided
that the Company shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse each Underwriter
and each such director, officer, employee or controlling person
promptly upon demand for any legal or
25
other expenses reasonably incurred by that Underwriter, director,
officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus,
or in any such amendment or supplement, in reliance upon and in
conformity with written information concerning such Underwriter
furnished to the Company specifically for inclusion therein which
information consists solely of the information specified in Section
11(f); provided further, however, that the Company shall be liable with
respect to any Preliminary Prospectus delivered as of the date hereof
to the extent that any such loss, claim, damage or liability or action
results from the fact that the Underwriters sold the Stock to a person
to whom there was not sent or given a copy of the Prospectus dated the
date hereof if the Company had previously furnished copies thereof to
the Underwriters and the loss, claim, damage or liability or action
results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus that was corrected in the
Prospectus dated the date hereof. The Company shall not be required to
provide indemnification hereunder to an Underwriter until such
Underwriter or such control person seeking indemnification shall have
first made a demand on the Selling Stockholder with respect to such
loss, claim, damage, liability or expense, and the Selling Stockholder
shall have either rejected such demand or failed to make such requested
payment within 90 days after receipt of such demand. The foregoing
indemnity agreement is in addition to any liability which the Company
may otherwise have to any Underwriter or to any director, officer,
employee or controlling person of that Underwriter.
(b) The Selling Stockholder shall indemnify and hold harmless
each Underwriter, its directors, officers and employees, and each
person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Stock), to which that Underwriter, director,
officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state in any Preliminary Prospectus,
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall
reimburse each Underwriter, its directors, officers and employees and
each such controlling person promptly upon demand
26
for any legal or other expenses reasonably incurred by that
Underwriter, its officers and employees or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred but in each case only to the extent that the
loss, claim, damage, liability or action arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the written
information furnished to the Company by or on behalf of the Selling
Stockholder specifically for inclusion therein, including, without
limitation, the information described in Section 11(g) hereof;
provided, however, that the Selling Stockholder shall not be liable in
any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any such amendment or supplement in reliance upon and
in conformity with written information (A) concerning such Underwriter
furnished to the Company specifically for inclusion therein which
information consists solely of the information specified in Section
11(f) or (B) furnished solely by the Company. The foregoing indemnity
agreement is in addition to any liability which the Selling Stockholder
may otherwise have to any Underwriter or any director, officer,
employee or controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees,
each of its directors (including any person who, with his or her
consent, is named in the Registration Statement as about to become a
director of the Company), and each person, if any, who controls the
Company within the meaning of the Securities Act, and the Selling
Stockholder, its officers and employees, each of its directors and each
person, if any, who controls the Selling Stockholder within the meaning
of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
the Company or the Selling Stockholder or any such director, officer or
controlling person of the Company or the Selling Stockholder may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus or in any amendment or supplement thereto, or (ii) the
omission or alleged omission to state in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information concerning such Underwriter
furnished to the Company through the Representative by or on behalf of
such Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer
27
or controlling person or the Selling Stockholder and any such director,
officer or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by the Company, the Selling
Stockholder or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which any Underwriter may otherwise have to the
Company, the Selling Stockholder or any such director, officer,
employee or controlling person of the Company or the Selling
Stockholder.
(d) Promptly after receipt by an indemnified party under this
Section 11 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 11, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 11 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 11. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 11 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representative shall have
the right to employ counsel to represent the Representative and the
other Underwriter and their respective directors, officers, employees
and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the
Underwriters against the Company or the Selling Stockholder under this
Section 11 if, in the reasonable judgment of the Representative, there
may be legal defenses available to the Underwriters which are different
from or in addition to those available to the Company and it is
advisable for the Representative, and its directors, officers,
employees and controlling persons to be represented by separate
counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential parties to such claim
or action) unless such settlement,
28
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 11
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 11(a), 11(b) or 11(c) in respect of
any loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Stockholder, as the case may
be, on the one hand, and the Underwriters, on the other, from the
offering of the Stock or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
Selling Stockholder, as the case may be, on the one hand, and the
Underwriters, on the other, with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Stockholder, as the case may be, on the one hand, and the
Underwriters, on the other, with respect to such offering shall be
deemed to be in the same proportion as, in the case of the Company or
the Selling Stockholder, the total net proceeds from the offering of
the Stock purchased under this Agreement (before deducting expenses
other than underwriting discounts and commissions) received by such
party, on the one hand, and, in the case of the Underwriters, the total
underwriting discounts and commissions received by the Underwriters
with respect to the shares of the Stock purchased under this Agreement,
on the other hand, bear to the total gross proceeds from the offering
of the shares of the Stock under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company,
the Selling Stockholder or the Underwriters, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Stockholder and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section were to be
determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable
29
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability,
or action in respect thereof, referred to above in this Section shall
be deemed to include, for purposes of this Section 11(e), any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 11(e), the Underwriters
shall not be required to contribute any amount in excess of the amount
by which the total price at which the Stock underwritten by it and
distributed to the public was offered to the public exceeds the amount
of any damages which the Underwriter has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(f) The Underwriters severally confirm and the Company and the
Selling Stockholder acknowledge that the statements with respect to the
public offering of the Stock by the Underwriters set forth on the cover
page of, the concession and reallowance figures and the information
regarding Regulation M, the paragraphs relating to the relationship
between Xxxxxx Brothers Inc. and the Selling Stockholder, and the
paragraph on electronic prospectuses appearing under the caption
"Underwriting" in, the Prospectus are correct and constitute the only
information concerning the Underwriters furnished in writing to the
Company by or on behalf of the Underwriter specifically for inclusion
in the Registration Statement and the Prospectus.
(g) The Selling Stockholder confirms and the Company and the
Underwriters acknowledge that the statements with respect to the third
through sixth paragraphs, inclusive, appearing under the caption "The
Sporting Equipment Group Acquisition" and the financial information
appearing under the caption "Selected Historical Combined Financial
Information of the Sporting Equipment Group" in the Prospectus are
correct and constitute the only information concerning the Selling
Stockholder furnished in writing to the Company by or on behalf of the
Selling Stockholder specifically for inclusion in the Registration
Statement and the Prospectus.
12. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriter shall be obligated to purchase the
Stock which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of the remaining non-defaulting Underwriter in
Schedule 1 hereto bears to the total number of shares of the Firm Stock set
opposite the names of the remaining non-defaulting Underwriter in Schedule 1
hereto; provided, however, that the remaining non-defaulting Underwriter shall
not be obligated to purchase any of the Stock on such Delivery Date if the total
number of shares of the Stock which the defaulting Underwriter agreed but failed
to purchase on such date exceeds 9.09% of the total number of shares of the
Stock to be purchased on such Delivery Date, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the number of
shares of the Stock which it agreed to purchase on such Delivery Date pursuant
to the terms of Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting Underwriter, shall have the right, but shall not be obligated, to
purchase all the Stock to
30
be purchased on such Delivery Date. If the remaining Underwriter or other
underwriters satisfactory to the remaining Underwriter do not elect to purchase
the shares which the defaulting Underwriter agreed but failed to purchase on
such Delivery Date, this Agreement (or, with respect to the Second Delivery
Date, the obligation of the Underwriters to purchase, and of the Company to
sell, the Option Stock) shall terminate without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholder, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 8 and 14. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 12, purchases Firm Stock which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company and the Selling Stockholder for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Stock of a defaulting or withdrawing Underwriter, either the remaining
Underwriter or the Company may postpone the Delivery Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
13. Termination. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by notice given to and received by the Company and
the Selling Stockholder prior to delivery of and payment for the Firm Stock if,
prior to that time, any of the events described in Sections 9(m), or 9(n), shall
have occurred or if the Underwriter shall decline to purchase the Stock for any
reason permitted under this Agreement.
14. Reimbursement of Underwriters' Expenses. (a) If the Selling
Stockholder shall fail to tender the Firm Stock for delivery to the Underwriters
by reason of any failure, refusal or inability on the part of the Selling
Stockholder to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Selling Stockholder is not fulfilled, the Selling Stockholder
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters in
connection with this Agreement and the proposed purchase of the Firm Stock and
upon demand the Selling Stockholder shall pay the full amount thereof to the
Underwriters.
(b) If the Company shall fail to tender the Option Stock for delivery
to the Underwriters by reason of any failure, refusal or inability on the part
of the Company to perform any agreement on its part to be performed, or because
any other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and
31
the proposed purchase of the Option Stock and upon demand the Company shall pay
the full amount thereof to the Underwriters.
15. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Brothers Inc., 000
Xxxxxx Xxxxxx, Xxxxxx Xxxx, XX, Attention: Syndicate Department (Fax:
000-000-0000), with a copy, in the case of any notice pursuant to
Section 11(d), to the Director of Litigation, Office of the General
Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000;
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Xxx X. Xxxxxxxx (Fax:
000-000-0000); and
(c) if to the Selling Stockholder, shall be delivered or sent
by mail, telex or facsimile transmission to the Selling Stockholder to
Xxxxxx, Inc., 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxxx, XX 00000-0000,
Attention: Xxxxxxx X. Xxxxxx, III, Esq.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
16. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Selling Stockholder and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company and the Selling Stockholder contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
the Underwriters within the meaning of Section 15 of the Securities Act, and the
directors and officers of the Underwriters and (B) the indemnity agreement of
the Underwriters contained in Section 11(c) of this Agreement shall be deemed to
be for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 16 and persons entitled to indemnification pursuant
to Section 11, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein.
17. Survival. The respective indemnities, representations, warranties
and agreements of the Company, the Selling Stockholder and the Underwriters
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Stock and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
32
18. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
20. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
21. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the Company,
the Selling Stockholder and the Underwriters, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
ALLIANT TECHSYSTEMS INC.,
by
-----------------------------
Name:
Title:
XXXXXX, INC.,
by
-----------------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
By
------------------------------------
Name: Xxxxxx Brothers, Inc.,
As Representative of the Underwriter
33
Schedule 1
Underwriter Number of Shares
----------- ----------------
Xxxxxx Brothers Inc.
Credit Suisse First Boston Corporation ---------
3,048,780
=========
Annex A
LOCK-UP LETTER AGREEMENT
Xxxxxx Brothers Inc.
Credit Suisse First Boston Corporation
In care of Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Dear Sirs:
The undersigned understands that you propose to enter into an
Underwriting Agreement (the "Underwriting Agreement") providing for the purchase
by you (the "Underwriters") of shares (the "Shares") of Common Stock, par value
$ .01 per share (the "Common Stock"), of Alliant Techsystems Inc. (the
"Company") and that the Underwrites propose to reoffer the Shares to the public
(the "Offering").
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of Xxxxxx
Brothers Inc., as representative of the Underwriters, the undersigned will not,
directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose
of (or enter into any transaction or device that is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any shares of Common Stock (including, without limitation, shares of Common
Stock that may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission and shares of Common Stock that may be issued upon exercise of any
option or warrant) or securities convertible into or exchangeable for Common
Stock owned by the undersigned on the date of execution of this Lock-Up Letter
Agreement or on the date of the completion of the Offering, or (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such shares of
Common Stock, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or other securities, in cash or
otherwise, for a period of 90 days after the date of the final Prospectus
relating to the Offering.
In furtherance of the foregoing, the Company and its transfer agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective by January 31, 2002, or if the Underwriting Agreement (other
than the provisions thereof which survive termination) shall terminate or be
terminated prior to payment for and delivery of the Shares, the undersigned will
be released from the obligations of this Lock-Up Letter Agreement.
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Annex A
The undersigned understands that the Company, the Underwriter and the
stockholder selling shares in the Offering will proceed with the Offering in
reliance on this Lock-Up Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
Very truly yours,
By:
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Name:
Title:
Dated: ______________________
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