Exhibit 1.1
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CENTERPRISE ADVISORS, INC.
(a Delaware corporation)
10,500,000 Shares of Common Stock
FORM OF PURCHASE AGREEMENT
--------------------------
Dated: _________, 1999
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Table of Contents
Page
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SECTION 1. Representations and Warranties................................ 6
(a) Representations and Warranties by the Company........... 6
(i) Compliance with Registration Requirements...... 6
(ii) Form S-4 ...................................... 7
(iii) Independent Accountants........................ 8
(iv) Financial Statements........................... 8
(v) No Material Adverse Change in Business......... 8
(vi) Good Standing of the Company................... 9
(vii) Good Standing of Subsidiaries and Attest Firms. 9
(viii) Capitalization.................................10
(ix) Authorization of Agreements....................10
(x) Authorization and Description of Securities....10
(xi) Absence of Defaults and Conflicts..............11
(xii) Absence of Labor Dispute.......................11
(xiii) Absence of Proceedings.........................12
(xiv) Accuracy of Exhibits...........................12
(xv) Possession of Intellectual Property............12
(xvi) Absence of Further Requirements................12
(xvii) Possession of Licenses and Permits.............13
(xviii) Title to Property..............................13
(xix) Compliance with Cuba Act.......................14
(xx) Investment Company Act.........................14
(xxi) Environmental Laws.............................14
(xxii) Registration Rights............................14
(xxiii) Tax Returns....................................14
(xxiv) Certain Actions................................15
(xxv) Insurance .....................................15
(xxvi) ERISA .........................................15
(xxvii) Statistical and Market Data....................15
(xxviii) Maintenance of Sufficient Internal Controls....15
(xxix) Fees ..........................................16
(xxx) Related Party Transactions.....................16
(xxxi) Proper Completion of Combination...............16
(xxxii) Reserved Shares................................16
(xxxiii) Rescission Offer...............................16
(xxxiv) Schedule C.....................................17
(b) Officer's Certificates..................................17
SECTION 2. Sale and Delivery to Underwriters; Closing....................17
(a) Initial Securities......................................17
(b) Option Securities ......................................17
(c) Payment ............................................... 18
(d) Denominations; Registration............................ 18
SECTION 3. Covenants of the Company..................................... 18
(a) Compliance with Securities Regulations and Commission
Requests............................................. 18
(b) Filing of Amendments................................... 19
(c) Delivery of Registration Statements.................... 19
(d) Delivery of Prospectuses............................... 19
(e) Continued Compliance with Securities Laws.............. 20
(f) Blue Sky Qualifications................................ 20
(g) Rule 158............................................... 20
(h) Use of Proceeds........................................ 21
(i) Listing ............................................... 21
(j) Restriction on Sale of Securities...................... 21
(k) Reporting Requirements................................. 21
(l) Compliance with NASD Rules............................. 21
(m) Compliance with Rule 463............................... 22
(n) Combination............................................ 22
(o) Compliance with Laws................................... 22
SECTION 4. Payment of Expenses.......................................... 22
(a) Expenses............................................... 22
(b) Termination of Agreement............................... 22
SECTION 5. Conditions of Underwriters' Obligations...................... 23
(a) Effectiveness of Registration Statement................ 23
(b) Opinions of Counsel for Company and the Founding
Companies............................................ 23
(c) Opinion of Counsel for Underwriters.................... 23
(d) Officers' Certificate.................................. 24
(e) Accountant's Comfort Letters........................... 24
(f) Bring-down Comfort Letters............................. 24
(g) Approval of Listing.................................... 24
(h) No Objection........................................... 24
(i) Lock-up Agreements..................................... 24
(j) Combination............................................ 25
(k) Credit Agreement....................................... 25
(l) Employment Agreements.................................. 25
(m) Form S-4 and Post-Effective Amendment.................. 25
(n) Conditions to Purchase of Option Securities............ 25
(i) Officers' Certificate............................ 25
(ii) Opinions of Counsel for Company.................. 25
(iii) Opinion of Counsel for Underwriters.............. 26
(iv) Bring-down Comfort Letters....................... 26
ii
(o) Additional Documents................................... 26
(p) Termination of Agreement............................... 26
SECTION 6. Indemnification 26
(a) Indemnification of Underwriters........................ 26
(b) Indemnification of Company, Directors and Officers..... 27
(c) Actions against Parties; Notification.................. 27
(d) Settlement without Consent if Failure to Reimburse..... 28
(e) Indemnification for Reserved Securities................ 28
SECTION 7. Contribution................................................. 28
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery........................................... 30
SECTION 9. Termination of Agreement..................................... 30
(a) Termination; General................................... 30
(b) Liabilities............................................ 30
SECTION 10. Default by One or More of the Underwriters.................. 31
SECTION 11. Notices .................................................... 31
SECTION 12. Parties .................................................... 32
SECTION 13. GOVERNING LAW AND TIME...................................... 32
SECTION 14. Effect of Headings.......................................... 32
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SCHEDULES
Schedule A - List of Underwriters Sch A-1
Schedule B - Pricing Information Sch B-1
Schedule C - List of Persons and Entities Subject to Lock-up Sch C-1
Schedule D - List of Founding Companies Sch D-1
Schedule E - List of Subsidiaries Sch E-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel A-1
Exhibit B - Form of Opinion of Special Company Regulatory Counsel B-1
Exhibit C - Form of Opinion of Counsel to each Founding Company C-1
Exhibit D - Form of Lock-up Letter D-1
||
iii
CENTERPRISE ADVISORS, INC.
(a Delaware corporation)
10,500,000 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
------------------
______________ , 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Brothers Inc.
CIBC Xxxxxxxxxxx Corp.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Centerprise Advisors, Inc., a Delaware corporation (the "Company"),
confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxxx Xxxxx, Xxxxxx Brothers Inc. and CIBC Xxxxxxxxxxx Corp.
are acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") set forth in said Schedule A, and with respect to the grant by the
Company to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 1,575,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 10,500,000 shares of Common Stock (the "Initial Securities") to be
purchased by the Underwriters and all or any part of the 1,575,000 shares of
Common Stock subject to the option described in Section 2(b) hereof (the "Option
Securities") are hereinafter called, collectively, the "Securities."
1
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Company and the Underwriters agree that up to 525,000 shares of the
Securities to be purchased by the Underwriters (the "Reserved Securities") shall
be reserved for sale by the Underwriters to certain eligible employees and
persons having business or other relationships with the Company, as part of the
distribution of the Securities by the Underwriters, subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of the National
Association of Securities Dealers, Inc. (the "NASD") and all other applicable
laws, rules and regulations. To the extent that such Reserved Securities are not
orally confirmed for purchase by such eligible employees and persons having
business or other relationships with the Company by the end of the first
business day after the date of this Agreement, such Reserved Securities may be
offered to the public as part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-75863) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus or in such Term Sheet, as the case may
be, that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus in the form first furnished to the
Underwriters for use in connection with the offering of the Securities is herein
called the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall
refer to the preliminary prospectus dated _____, 1999 together with the Term
Sheet and all references in this Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or any
Term Sheet or any amendment or supplement to any of the
2
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
At the Closing Time (defined below), the Company will or will cause one or
more wholly-owned subsidiaries of the Company to merge (each a "Merger") with
each of the companies listed on Schedule D (each a "Founding Company" and,
collectively, the "Founding Companies"), in each case pursuant to a merger
agreement (each, as amended and restated to date and in the form filed as an
Exhibit to the Registration Statement, a "Merger Agreement" and, collectively,
the "Merger Agreements"), as described in the Prospectus under "Certain
Transactions" (collectively, the "Combination"). As used herein, the term
"Subsidiary" means each subsidiary of the Company, each Founding Company and
each subsidiary of a Founding Company.
SECTION 1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act, and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act, and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission that the Company supply additional information has been
complied with. At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any post-effective amendments thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and did not 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. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time (and, if any Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434 and the
Prospectus shall not be "materially different", as such term is used in
Rule 434, from the prospectus included in the Registration Statement at the
time it became effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by
3
any Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement or Prospectus or any amendments or supplements thereto.
Each preliminary prospectus and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(ii) Form S-4. The Company's registration statement on Form S-4 (No.
333-75861) covering the registration of the Rescission Offer and the
registration of the shares of Common Stock being issued at the Closing Time
pursuant to the Merger Agreements, including the related prospectus or
prospectuses (the "Form S-4"), and Post-Effective Amendment No. 1 to the
S-4 (the "Post-Effective Amendment") have each become effective under the
1933 Act, and no stop order suspending the effectiveness of the Form S-4 or
the Post-Effective Amendment has been issued under the 1933 Act, and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission that the Company supply additional
information has been complied with. At the respective times the Form S-4
and the Post-Effective Amendment became effective and at the Closing Time,
the Form S-4 and the Post-Effective Amendment complied and will comply in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not 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. Neither
the prospectus dated September 10, 1999 related to a rescission offer to
the owners and certain employees of the Founding Companies (the "Rescission
Offer"), included as part of the Form S-4 (the "Rescission Offer
Prospectus") nor the prospectus dated September __, 1999, included as part
of the Post-Effective Amendment and delivered to the owners of the Founding
Companies (the "Merger Prospectus") (or any amendments or supplements
thereto), at the time the Rescission Offer Prospectus or the Merger
Prospectus or any such amendment or supplement was issued and (i) with
respect to the Rescission Offer Prospectus, throughout the period of the
Rescission Offer and (ii) with respect to the Merger Prospectus, at the
Closing Time, did not include or will not include an untrue statement of a
material fact and did not omit or will not omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
No Founding Company owner had any dissenters rights with respect to
the Combination except as described in the Form S-4 and the Post-Effective
Amendment. No Founding Company owner has elected to exercise dissenters
rights.
4
Each prospectus filed as part of the Form S-4 as originally filed or
as part of any amendment thereto (including, without limitation, as filed
as part of the Post-Effective Amendment), or filed pursuant to Rule 424
under the 1933 Act, complied when so filed in all material respects with
the 1933 Act Regulations and each such prospectus delivered to the owners
of the Founding Companies was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(ii) Independent Accountants. Each of the accountants who certified
the financial statements and supporting schedules included in the
Registration Statement, the Form S-4 and the Post-Effective Amendment are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) Financial Statements. The historical financial statements
included in the Registration Statement, the Prospectus, the Form S-4, the
Post-Effective Amendment, the Rescission Offer Prospectus and the Merger
Prospectus, together with the related schedules and notes, present fairly
the financial position of the Company, each Founding Company and their
respective consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the
Company, each Founding Company and their respective consolidated
subsidiaries for the periods specified; each of said financial statements
has been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The selected financial data and the summary financial information
included in the Prospectus, the Rescission Offer Prospectus and the Merger
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The pro forma combined
financial statements and the related notes thereto included in the
Registration Statement, the Prospectus, the Form S-4, the Post-Effective
Amendment, the Rescission Offer Prospectus and the Merger Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma combined financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein.
Other than historical financial statements of (A) Xxxxxx Xxxx & Xxxxxx,
P.C. as of and for the year ended October 31, 1996, (B) Self Funded
Benefits, Inc. (d/b/a Insurance Design Administrators) as of and for the
year ended December 31, 1996, (C) The Xxxxxxx Companies as of and for the
year ended December 31, 1997 and (D) Simione, Scillia, Xxxxxx & Xxxxxxx LLC
as of and for the year ended December 31, 1997 as to which a written waiver
has been obtained from the Commission and provided to the Representatives,
no other financial statements or schedules of the Company or the Founding
Companies are required by the 1933 Act or the 1933 Act Regulations to be
included in the Registration Statement, the Prospectus, the Form S-4, the
Post Effective Amendment, the Rescission Offer Prospectus or the Merger
Prospectus.
5
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement, the
Prospectus, the Form S-4, the Post Effective Amendment, the Rescission
Offer Prospectus and the Merger Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by the
Company or any of its Subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its
Subsidiaries considered as one enterprise, (C) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any
class of its capital stock and (D) there has been no dividend or
distribution of any kind declared, paid or made by any Founding Company on
any class of its capital stock, other than those consistent with past
customs and practices that do not result in a material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospectus of any Founding Company or any subsidiary thereof.
(vi) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of Delaware and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and under each Merger Agreement, each Incentive Compensation
Agreement, each Company Stockholder Agreement, the Stockholders Agreement
and the Credit Agreement (each as defined below); and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries and Attest Firms. Each Subsidiary
and each attest firm that is a party to any Separate Practice Agreement or
any Services Agreement (collectively, the "Attest Firms") has been duly
organized, is validly existing and, if a corporation or limited liability
company, is in good standing under the laws of the jurisdiction of its
organization, has requisite power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under each Merger Agreement,
Incentive Compensation Agreement, Stockholders Agreement, Separate Practice
Agreement, Services Agreement and the Credit Agreement (each, in the form
filed as an exhibit to the Registration Statement, a "Transaction
Agreement" and, collectively, the "Transaction Agreements") to which it is
a party; each Subsidiary that is a corporation or limited liability company
is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect; all of the issued and outstanding capital
stock, membership or
6
partnership interests or other equity interest of each such Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable
and after giving effect to the Combination will be owned by the Company,
directly or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity and, immediately after
giving effect to the Combination, no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to
convert any obligations into shares of capital stock or ownership interests
in any Subsidiary will be outstanding other than options to purchase up to
23.654 shares of common stock of The Xxxxxxx Company; none of the
outstanding capital stock, membership or partnership interests or other
equity interests of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary. The
only subsidiaries of the Company immediately after giving effect to the
Combination will be the Subsidiaries listed on Schedule E hereto.
(viii) Capitalization. As of the Closing Time, the Company has
authorized capital stock consisting of 50,000,000 shares of Common Stock,
par value $.01 per share, and 10,000,000 shares of Preferred Stock, par
value $.01 per share (the "Preferred Stock"); prior to the closing of the
transactions contemplated by the Merger Agreements and the issuance of
shares of Common Stock as contemplated thereby and hereby, the Company had
issued and outstanding __________ shares of Common Stock (on a post-split
basis) and no shares of Preferred Stock; upon consummation of the
Combination and the issuance of __________ shares of Common Stock as
contemplated by the Merger Agreements (which together with the __________
shares of Common Stock issued prior to the Combination, are all the shares
of Common Stock issued or to be issued prior to the issuance and sale of
the Securities), without giving effect to the issuance of the Securities
pursuant to the terms of this Agreement, the Company will have issued and
outstanding __________ shares of Common Stock and no shares of Preferred
Stock. All of such shares of Common Stock have been duly authorized and,
when issued and delivered to the purchasers thereof against payment
therefor as provided in the Merger Agreements, will be validly issued,
fully paid and nonassessable; and none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company. Except as described in
the Prospectus, there are no outstanding options, warrants or other rights
calling for the issuance of, and there are no commitments to issue any
shares of, capital stock of the Company or any security convertible into or
exchangeable or exercisable for capital stock of the Company.
(ix) Authorization of Agreements. Each of this Agreement and each
Transaction Agreement to which the Company, a Subsidiary or an Attest Firm,
as the case may be, is a party has been duly authorized, executed and
delivered by the Company and by each such Subsidiary and each such Attest
Firm and each such agreement constitutes a valid and legally binding
obligation of the Company and each such Subsidiary and each such Attest
Firm enforceable against the Company and each such Subsidiary and each such
Attest Firm in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of
7
creditors' rights generally or by general equitable principles (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(x) Authorization and Description of Securities. The Securities have
been duly authorized for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth herein, will
be validly issued and fully paid and non-assessable; the Common Stock
conforms to all statements relating thereto contained in the Prospectus and
such description conforms to the rights set forth in the instruments
defining the same; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. None of the Company, any
Subsidiary or any Attest Firm is in violation of its constituent documents
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company, such Subsidiary or such
Attest Firm is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company, such Subsidiary or such
Attest Firm is subject (collectively, "Agreements and Instruments") except
for such defaults that would not result in a Material Adverse Effect; and
the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and in the
Registration Statement, the Form S-4 and the Post-Effective Amendment
(including, without limitation, the Rescission Offer, the Combination and
the issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Company with its obligations
hereunder and compliance by the Company, each Subsidiary and each Attest
Firm with their respective obligations under the Transaction Agreements do
not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company, any Subsidiary or any Attest Firm pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or defaults
or Repayment Events or liens, charges or encumbrances that would not result
in a Material Adverse Effect), nor will such action result in any violation
of the provisions of the constituent documents of the Company, any
Subsidiary or any Attest Firm or any applicable law, statute, rule,
regulation, ethical code, judgment, order, writ or decree (collectively,
"Laws") of any government, government instrumentality, government agency,
governmental body or court or other regulatory body or agency, domestic or
foreign, having jurisdiction over the Company, any Subsidiary or any Attest
Firm or any of their assets, properties or operations, including, without
limitation, the Financial Accounting Standards Board, the American
Institute of Certified Public Accountants and any state board of
accountancy or similar body (collectively, "Governmental Authorities").
None of the Company, any Subsidiary or any Attest Firm has received any
notice from any Governmental Authority claiming any violation of any Law,
whether arising out of their
8
operations prior to the Combination, their proposed organizational
structure or their operations after the Combination, or otherwise. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company, any Subsidiary or any Attest Firm.
(xii) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any Subsidiary exists or, to the knowledge of the Company or
any Subsidiary, is imminent, and neither the Company nor any Subsidiary is
aware of any existing or imminent labor disturbance by the employees of any
of the Company's or any Subsidiary's principal customers or clients,
including without limitation, the Attest Firms, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any Governmental Authority,
now pending, or, to the knowledge of the Company or any Subsidiary,
threatened, against or affecting the Company, any Subsidiary or any Attest
Firm, which is required to be disclosed in the Registration Statement, the
Form S-4 or the Post-Effective Amendment (other than as disclosed therein),
or which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely
affect the properties or assets thereof or the consummation of the
Combination or the transactions contemplated in this Agreement or the
Transaction Agreements or the performance by the Company, any Subsidiary or
any Attest Firm of their respective obligations under any of the
Transaction Agreements; the aggregate of all pending legal or governmental
proceedings to which the Company, any Subsidiary or any Attest Firm is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement, the Form S-4 or the
Post-Effective Amendment, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiv) Exhibits. There are no contracts or documents which are required
to be described in the Registration Statement, the Prospectus, the Form
S-4, the Post-Effective Amendment, the Rescission Offer Prospectus or the
Merger Prospectus or to be filed as exhibits to the Registration Statement,
the Form S-4 or the Post-Effective Amendment which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. The Company, the
Subsidiaries and the Attest Firms own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them and to be operated following the Combination,
and none of the Company, any Subsidiary or any Attest Firm has received any
notice or is otherwise aware of any
9
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company, any Subsidiary or any Attest Firm therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any Governmental Authority is necessary or
required for the performance by the Company of its obligations hereunder,
in connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the Rescission Offer or the transactions
contemplated by this Agreement and the Transaction Agreements or the
performance by the Company, any Subsidiary or any Attest Firm of their
respective obligations under any of the Transaction Agreements, except (i)
such as have been already obtained relating to regulating, licensing or
permitting the practice of public accountancy, (ii) such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws and (iii) such as have been obtained
under the laws and regulations of any jurisdictions outside the United
States in which the Securities are offered.
(xvii) Possession of Licenses and Permits. The Company, the
Subsidiaries and, to the knowledge of the Company and the Subsidiaries, the
Attest Firms, possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign Governmental Authorities
necessary to conduct the business now operated by them or, in the case of
the Attest Firms, the business described in the Registration Statement and
the Prospectus; the Company, its Subsidiaries and, to the knowledge of the
Company and the Subsidiaries, the Attest Firms, are in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and none of the Company, any of
its Subsidiaries or, to the knowledge of the Company and the Subsidiaries,
any of the Attest Firms has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its Subsidiaries have good
and marketable title to all real property owned by the Company or any
Subsidiary and good title to all other properties owned by any of them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as
(a) are described in the Prospectus or (b) could not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect;
and all of the leases and
10
subleases material to the business of the Company and its Subsidiaries,
considered as one enterprise, and under which the Company or any of its
Subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any Subsidiary has received
any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any Subsidiary under any of
the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xix) Compliance with Cuba Act. The Company has complied with, and is
and will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
or is exempt therefrom.
(xx) Investment Company Act. The Company is not, and upon the
consummation of the Combination and the issuance and sale of the Securities
as herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xxi) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any Subsidiary is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its Subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company or any Subsidiary, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any Subsidiary and (D) there are no events or circumstances that
might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
Governmental Authority, against or affecting the Company or any Subsidiary
relating to Hazardous Materials or any Environmental Laws.
11
(xxii) Registration Rights. Except as described in the Prospectus,
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xxiii) Tax Returns. The Company and each Subsidiary have filed all
Federal, state, local and foreign income tax returns which have been
required to be filed and have paid all taxes indicated by said returns and
all assessments received by it or any of them to the extent that such taxes
have become due and are not being contested in good faith, except for the
filing of those returns, and the paying of those taxes, the failure to file
or pay, respectively, individually or in the aggregate, would not have a
Material Adverse Effect. The Company and the Subsidiaries have made
adequate charges, accruals and reserves in the applicable historical
financial statements referred to in paragraph (iv) above in respect of all
Federal, state and foreign taxes for all periods as to which the tax
liability of the Company or any Subsidiary has not been finally determined.
(xxiv) Certain Actions. Neither the Company nor, to the Company's best
knowledge, any of its affiliates or any of the Subsidiaries or any of their
affiliates has taken and the Company will not take, and will cause each of
the Subsidiaries to not take, directly or indirectly, any action designed
to cause or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation of the price
of the shares of Common Stock to facilitate the sale or resale of the
Securities.
(xxv) Insurance. The Company, the Subsidiaries and, to the knowledge
of the Company and the Subsidiaries, the Attest Firms carry, or are covered
by, insurance in such amounts and covering such risks as is reasonably
adequate for the conduct of their respective businesses and the value of
their respective properties and as is generally deemed customary for
companies in the Company's, the Subsidiaries' and the Attest Firms'
industries.
(xxvi) ERISA. The Company and the Subsidiaries are in compliance in
all material respects with all 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 or any Subsidiary would have any liability;
neither the Company nor any Subsidiary has incurred or reasonably expects
to incur liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan," or (ii) Section 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 or any Subsidiary 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.
12
(xxvii) Statistical and Market Data. The statistical and market-
related data included in the Prospectus are based on or derived from
sources that are reliable and are accurate in all material respects.
(xxviii) Maintenance of Sufficient Internal Controls. The Company and
its Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(xxix) Fees. Other than pursuant to this Agreement or as described in
the Registration Statement and the Prospectus, there are no contracts,
agreements or understandings between either the Company or its Subsidiaries
and any person that give rise to a valid claim against the Company, any of
its Subsidiaries or any of the Underwriters for a brokerage commission,
finder's fee or other like payment relating to the transactions
contemplated hereby.
(xxx) Related Party Transactions. No relationship, direct or indirect,
exists nor has any transaction, direct or indirect, occurred between or
among the Company or the Subsidiaries on the one hand, and the directors,
officers, shareholders, customers, clients or suppliers of the Company or
the Subsidiaries on the other hand, which is required to be described in
the Prospectus which is not so described.
(xxxi) Proper Completion of Combination. The Closing (as defined in
each Merger Agreement) contemplated by each Merger Agreement is occurring
simultaneously with the Closing Time and all conditions to the obligations
of the Company under each Merger Agreement have been satisfied on or prior
to the Closing Time, except for waivers thereof as to which the
Representatives have been informed in writing by the Company at or prior to
the Closing Time. There have been no amendments or supplements to, and no
agreements or waivers in connection with or related to, any Transaction
Agreement except for such amendments, supplements, agreements and waivers
as to which the Representatives have been informed in writing by the
Company at or prior to the Closing Time. Any such amendments, supplements,
agreements or waivers that are required to be filed as exhibits to the
Registration Statement have been so filed. At or prior to the Closing Time,
each Founding Company has been or will be merged with and into, or acquired
by, the Company or a wholly-owned Subsidiary of the Company in accordance
with the applicable laws, rules and regulations of the applicable
jurisdictions relating to each such merger or acquisition and upon the
terms described in the Prospectus, and each Founding Company shall be a
wholly-owned direct or indirect subsidiary of the Company. Each Merger
qualifies for tax-free treatment under Section 351 of the Code.
13
(xxxii) Reserved Shares. Each of the persons identified by the
Company to the Representatives to receive Reserved Shares is a citizen of
the United States and currently is a resident of one of the United States.
(xxxiii) Rescission Offer. The Rescission Offer complied with, or was
exempt from, all Federal and state securities laws, including, without
limitation, the 1933 Act, the 1933 Act Regulations and all state blue sky
laws. The Rescission Offer has been accepted in accordance with its terms
by all offerees who received such Rescission Offer, which offerees
constituted all owners of the Founding Companies and all employees of the
Founding Companies who were informed, prior to the actual filing of the
Registration Statements, that they might receive shares of the Company's
Common Stock in the Combination and none of such acceptances has been
revoked or otherwise challenged as invalid. No person has any rescission
rights or related claims with respect to any shares of the Company's Common
Stock or any right to any other remedy adverse to the Company arising out
of the alleged offers and/or sales of Common Stock that gave rise to the
Rescission Offer.
(xxxiv) Schedule C. The persons and entities listed on Schedule C to
this Agreement own beneficially and of record all of the capital stock and
other equity interests, and all securities convertible into or exchangeable
for capital stock or any other equity interests, of the companies listed on
Schedule C. Except for the persons and entities listed on Schedule C, no
person or entity will receive shares of the Company's Common Stock in
connection with the Combination.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its Subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
1,575,000 shares of Common Stock at the price per share set forth in Schedule B,
less an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial
14
Securities but not payable on the Option Securities. The option hereby granted
will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
Securities upon notice by the Representatives to the Company setting forth the
number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time and date of delivery (a "Date of Delivery")
shall be determined by the Representatives, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Securities
set forth in Schedule A opposite the name of such Underwriter bears to the total
number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxx
Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such
other place as shall be agreed upon by the Representatives and the Company, at
9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
two full business days before the Closing Time or
15
the relevant Date of Delivery, as the case may be. The certificates for the
Initial Securities and the Option Securities, if any, will be made available for
examination and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement, the Form S-4 or the Post-Effective
Amendment shall become effective, or any supplement to the Prospectus, the
Rescission Offer Prospectus or the Merger Prospectus or any amended Prospectus,
Rescission Offer Prospectus or Merger Prospectus shall have been filed, (ii) of
the receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement, the Form S-4 or the
Post-Effective Amendment or any amendment or supplement to the Prospectus, the
Rescission Offer Prospectus or the Merger Prospectus or for additional
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, the Form S-4 or the
Post-Effective Amendment or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Company's Common Stock for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement, the Form S-4 or the Post-Effective Amendment (including any filing
under Rule 462(b)), any Term Sheet or any amendment, supplement or revision to
the prospectus included in the Registration Statement at the time it became
effective, to the Prospectus, to the Rescission Offer Prospectus or to the
Merger Prospectus and will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement, the Form S-4 and the Post-
Effective Amendment as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein) and signed copies
of all consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement,
the Form S-4 and
16
the Post-Effective Amendment as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement, the Form S-4 and the Post-Effective Amendment and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act"), such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Securities or the
shares of Common Stock being registered under the Form S-4, as the case may be,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement, the Form S-4 or the Post-Effective Amendment
or amend or supplement the Prospectus, the Rescission Offer Prospectus or the
Merger Prospectus in order that the Prospectus, the Rescission Offer Prospectus
or the Merger Prospectus, as the case may be, will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser or offeree, or
if it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement, the Form S-4 or the Post-Effective Amendment
or amend or supplement the Prospectus, the Rescission Offer Prospectus or the
Merger Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement, the Form S-4 or the Post-Effective Amendment or the Prospectus, the
Rescission Offer Prospectus or the Merger Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number of
copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic of foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of time as may be necessary to complete
the distribution of the Securities; provided, however, that the Company shall
not be
17
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period time as may
be necessary to complete the distribution of the Securities.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect and
maintain the listing of the Securities on the New York Stock Exchange under the
symbol "CEP" and will file with the New York Stock Exchange all documents and
notices required by the New York Stock Exchange of companies that have
securities that are traded on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 180 days
from the date of the Prospectus, the Company will not, without the prior written
consent of Xxxxxxx Xxxxx, (i) directly or indirectly, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of any share of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company to the holders of securities of the Founding Companies or employees
at Closing Time in connection with the Combination in accordance with the terms
of the Merger Agreements, (C) any shares of Common Stock issued by the Company
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectus, (D) any shares
of Common Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company referred to in the Prospectus (E)
any shares of Common Stock issued pursuant to any non-employee director stock
plan or dividend reinvestment plan or (F) Shares of Common Stock issued in
connection with the acquisition by Centerprise of additional businesses, but
only if the recipients of such shares agree in writing not to take any action
described in clauses (i) or (ii) of Exhibit D during the period of 180 days from
the date of the Prospectus.
18
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(l) Compliance with NASD Rules. The Company will ensure that the
Reserved Securities will be restricted as required by the NASD or the NASD rules
from sale, transfer, assignment, pledge or hypothecation for a period of three
months following the date of this Agreement. The Underwriters will notify the
Company as to which persons will need to be so restricted. At the request of the
Underwriters, the Company will direct the transfer agent to place a stop
transfer restriction upon such securities for such period of time. Should the
Company release, or seek to release, from such restrictions any of the Reserved
Securities, the Company agrees to reimburse the Underwriters for any reasonable
expenses (including, without limitation, legal expenses) they incur in
connection with such release.
(m) Compliance with Rule 463. The Company shall report to the
Commission its use of proceeds from the sale of the Securities as required
pursuant to Rule 463 of the 1933 Act Regulations.
(n) Combination. The Company will (i) use its best efforts to satisfy
all conditions to the consummation of the Combination, (ii) use its best efforts
to cause each Founding Company to satisfy all conditions to the consummation of
the Combination and (iii) promptly notify the Representatives of the occurrence
of any event which may result in the non-consummation of the Combination.
(o) Compliance with Laws. The Company hereby agrees that it will, and
it will cause each Subsidiary to, comply with all applicable Laws and that the
Company will promptly notify the Representatives if the Company or any
Subsidiary receives any notice from any Governmental Authority claiming any
violation of any Law.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of
19
the Prospectus and any amendments or supplements thereto, (vii) the preparation
and delivery to the Underwriters of copies of the Blue Sky Survey and any
supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities, (x) the
fees and expenses incurred in connection with the listing of the Securities on
the New York Stock Exchange and (xi) all costs and expenses of the Underwriters,
including the fees and disbursements of counsel for the Underwriters, in
connection with matters related to the Reserved Securities which are designated
by the Company for sale to employees and others having a business or other
relationship with the Company to the extent set forth in the letter agreement
dated as of ______, 1999 among the Company, BGL Capital Partners, L.L.C. and
Xxxxxxx Xxxxx.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any Subsidiary delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinions of Counsel for Company and the Founding Companies. At
Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of (i) Xxxxxx Xxxxxx & Zavis, counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the Underwriters may reasonably request; (ii) Vedder,
Price, Xxxxxxx & Kammholz, special regulatory counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit B hereto and to such further effect as counsel to
the Underwriters may reasonably request; and (iii) counsel to each Founding
Company, in form and substance satisfactory
20
to counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters to the effect set forth in
Exhibit C hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxx, Xxxxx & Xxxxx, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses (i) (insofar as it relates to
the Company's valid existence), (ii), (v), (vi) (solely as to preemptive or
other similar rights arising by operation of law or under the charter or by-laws
of the Company), (viii) through (x), inclusive, (xii), (xiv) (solely as to the
information in the Prospectus under "Description of Capital Stock--Common
Stock") and the penultimate paragraph of Exhibit A hereto. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Representatives. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and its Subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement, the Form S-4 or the Post-Effective
Amendment has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, are pending or are contemplated by
the Commission.
(e) Accountant's Comfort Letters. At the time of the execution of
this Agreement, the Representatives shall have received from each of
PricewaterhouseCoopers LLP and KPMG LLP a letter dated such date, in form and
substance satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(f) Bring-down Comfort Letters. At Closing Time, the Representatives
shall have received from each of PricewaterhouseCoopers LLP and KPMG LLP a
letter, dated as of Closing
21
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(g) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(h) No Objection. The NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the form of
Exhibit D hereto signed by the persons listed on Schedule C hereto.
(j) Combination. At or before Closing Time, the Closing (as defined
in each Merger Agreement) contemplated by each Merger Agreement shall have
occurred and all conditions to the obligations of the Company under each Merger
Agreement shall have been satisfied except for waivers thereof as to which the
Representatives shall have been informed of in writing by the Company at or
prior to the Closing Time. Each Founding Company shall have been merged with the
Company or a wholly-owned Subsidiary of the Company, in accordance with the
applicable laws, rules and regulations of the applicable jurisdictions relating
to each such merger and the terms contained in the respective Merger Agreements
and described in the Prospectus, simultaneously with the closing of the purchase
of the Initial Shares by the Underwriters, and each Founding Company shall be a
wholly-owned direct or indirect subsidiary of the Company.
(k) Credit Agreement. At or before Closing Time, the Company shall
have entered into a credit agreement with ___________________ (the "Credit
Agreement") pursuant to which the Company shall have available to it a credit
facility in the amount of $100,000,000 on the terms described in the Prospectus.
(l) Employment Agreements. At or before Closing Time, the Company
shall have entered into an employment agreement with each of Xxxxxx X. Xxxxxx,
XxXxx X. Xxxxxx, Xxxxxx X. Eagle and Xxxxxx X. Xxxxx on the terms described in
the Prospectus.
(m) Form S-4 and Post-Effective Amendment. The Form S-4 and the Post-
Effective Amendment shall each have been declared effective by the Commission
and at Closing Time no stop order suspending the effectiveness of the Form S-4
or the Post-Effective Amendment shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters.
(n) Conditions to Purchase of Option Securities. In the event that
the Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of
22
the Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by the Company
or any Subsidiary hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
(ii) Opinions of Counsel for Company. The favorable opinion of
Xxxxxx Xxxxxx & Xxxxx, counsel for the Company, together with the favorable
opinion of Vedder, Price, Xxxxxxx & Kammholz, special regulatory counsel
for the Company, each in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The favorable opinion of
Xxxxx, Xxxxx & Xxxxx, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(iv) Bring-down Comfort Letters. A letter from each of
PricewaterhouseCoopers LLP and KPMG LLP, each in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representatives pursuant to Section 5(f) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall be a date
not more than five days prior to such Date of Delivery.
(o) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be reasonably satisfactory
in form and substance to the Representatives and counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability
23
of any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further, that
the Company will not be liable to an Underwriter with respect to any preliminary
prospectus to the extent that the Company shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the fact
that such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold Securities
24
to a person to whom such Underwriter failed to send or give, at or prior to the
Closing Time, a copy of the final Prospectus as then amended or supplemented if
(i) the Company has previously furnished copies thereof (sufficiently in advance
of the Closing Time to allow for distribution by the Closing Time) to the
Underwriters and the loss, liability, claim, damage or expense of such
Underwriter resulted from an untrue statement or omission or alleged untrue
statement or omission of a material fact contained in or omitted from the
preliminary prospectus which was corrected in the final Prospectus as, if
applicable, amended or supplemented prior to the Closing Time and (ii) such
failure to give or send such final Prospectus by the Closing Time to the party
or parties asserting such loss, liability, claim, damage or expense would have
constituted the sole defense to the claim asserted by such person.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each person named as a prospective director of the Company in the
Registration Statement, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Xxxxxxx Xxxxx expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section
25
6 or Section 7 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; provided that an indemnifying party shall not be
liable for any such settlement effected without its consent if such indemnifying
party, prior to the date of such settlement, (1) reimburses such indemnified
party in accordance with such request for the amount of such fees and expenses
of counsel as the indemnifying party believes in good faith to be reasonable and
(2) provides written notice to the indemnified party that the indemnifying party
disputes in good faith the reasonableness of the unpaid balance of such fees and
expenses.
(e) Indemnification for Reserved Securities. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the Underwriters from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of eligible employees and persons having a
business relationship with the Company to pay for and accept delivery of
Reserved Securities which, by the end of the first business day following the
date of this Agreement, were subject to a properly confirmed agreement to
purchase.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
26
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet, bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such 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 or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such 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 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each person named as a prospective director of the
Company in the Registration Statement, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
27
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of the Subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the NASD or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities or (v) there has occurred any event that makes untrue or
incorrect in any material respect any statement or information contained in the
Registration Statement or Prospectus or that is not reflected in the
Registration Statement or Prospectus but should be reflected therein in order to
make the statements or information therein (in the case of the Prospectus, in
light of the circumstances in which they were made) not misleading in any
material respect.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein
28
set forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-
defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with respect
to any Date of Delivery which occurs after the Closing Time, the obligation
of the Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Xxxxx Xxxxx Xxxxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, attention of Xxxxxx Xxxxxx with a copy to
Xxxxxxx X. Campbell, Mayer, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000; and notices to the Company shall be directed to it at 000 Xxxx
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of Xxxxxx X.
Xxxxxx with a copy to Xxxxxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers, directors and prospective directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the
29
Company and their respective successors, and said controlling persons and
officers, directors and prospective directors referred to in Sections 6 and 7
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
30
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
CENTERPRISE ADVISORS, INC.
By
-------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXX BROTHERS INC.
CIBC XXXXXXXXXXX CORP.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
-----------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
31
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.................
Xxxxxx Brothers Inc.....................
CIBC Xxxxxxxxxxx Corp...................
_________
Total 10,500,000
==========
A-1
SCHEDULE B
CENTERPRISE ADVISORS, INC.
10,500,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $(_________).
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $(________), being an amount equal to the initial
public offering price set forth above less $(________) per share; provided that
the purchase price per share for any Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall be reduced
by an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option
Securities.
B-1
SCHEDULE C
List of persons and entities subject to lock-up
Centerprise Advisors, Inc.
CPA Holdings L.L.C.
Xxxxxxx, Xxxxxx & Xxxxxxxxx, C.P.A.s, L.L.C.
FRF Holdings, L.L.C.
Xxxxxx X. Xxxxxx
XxXxx X. Xxxxxx
Xxxxxx X. Eagle
Xxxxxx X. Xxxxx
Xxxxxxx Xxxxxx & Xxxxxxxxx, Certified Public Accountants, A Professional
Corporation
Xxxxx Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxx, Xx.
Xxxxx Birmingham
Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxx Xxxxxxxx
Xxxx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx XxXxxxxx
Xxxxxxx Xxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Portal
Xxxx Xxxxxx
Xxxx Xxxxxxxxx
Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxx
Xxxxxx Denmark
C-1
Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxxx
Xxxx Xxxxx
Xxxx Xxxxxxxxxxx
Xxxx Xxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxx X'Xxxx
Xxxx Xxxxxxxx
Xxxx Xxxx
Xxxx Xxxxxxx
Xxxxx Xxxxx
Xxx Xxxxxxxx
Xxxxx Xxxx
Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
Xxxx Frankfort Xxxxx & Xxxx, P.C.
Xxxxxx Frankfort
Xxxx Xxxxxxx
Xxxxxx Xxxx
Xxxxxxx Xxxxx
Xxxx Xxxxxxx
Xxxxx Xxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxx Layer
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxxxx
Xxxx Xxxxx III
Xxxx Xxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx, Rudzewicz & Company, P.C.
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
C-2
Xxxxx X. Xxxxxxx, III
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. XxXxxxx
Berry, Dunn, XxXxxx & Xxxxxx, Chartered
Xxxxxx X. Xxxxxxxx, Xx.
J. Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxxxxx
Xxx X. Chick
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Irish
Xxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. XxXxxx
Xxxxx X. Xxxxx
Xxxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxxx Xxxx
Xxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxx & Xxxxxx, P.C.
Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxx Xxxxxxx
C-3
Xxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxx
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxxx XxXxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxx
Xxxxxxxx XxXxxxx
Xxxx Xxxxx
Xxxxx X'Xxxxxxxxx
Grace & Company, P.C.
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Simione, Scillia, Xxxxxx & Xxxxxxx L.L.C.
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
C-4
W. Xxxxxx Xxxxxxx
Xxxxxxx X. XxXxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxxx
Xxxxxxx XxXxxx
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxxx X. Held
Xxxxxx Xxxxx III
Xxxxxxx X. Xxxxxxxx
Xxxx Xxxxx
Xxxx Xxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Driver Co., Inc.
Xxxxxxx Family Trust
Xxxxxxx Family Trust
Xxxxxx X. Xxxx
Xxxx Xxxxxxx Xxxxxx, Xx.
Xxxxxxx X. Driver
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Des Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxxxx Xxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx
Xxx Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxx
Xxxx Xxxxxxx
Xxxx Xxxx-Xxxxxxxx
Xxxxx X. Xxxxx (401k)
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
C-5
Xxxxxx X. Xxxxxxx (401k)
Xxxxx X. Xxxxxxx
Xxxx X.X. Xxxxxxxx
Xxxxxx X. X'Xxxxxx
Xxx X. Xxxxxxxx
X. Xxxxxx De Briyn
Xxxxxx X. XxxXxxxxx (401k)
Xxxxxxx X. Driver (401k)
Xxxxxxxx Xxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxx (401k)
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxx (401k)
Xxxxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxx (401k)
Xxxxx Xxxxx Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx Xxxxxxx
Xxxx XxXxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxx
XxXxxx Family Trust
Xxxxxx X. XxXxxx, Xx.
Xxxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxx, Xx.
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxx
Xxxxx X'Xxxxxxx
Xxxxx X. Xxxxx
Xxxxx Xxxxxxx
C-6
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx
Xxxxxx (Xxxx) Xxxxxxx Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxxxxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Sports
Xxxxxxxx X. Xxxxxxx XX
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx Xxxxx
Xxxxx Xxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxx
Arch X. Xxxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxx (401k)
Xxxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Xxxxx Capital Advisors
Xxxxx Brothers Xxxxxxxx & Co.
Self Funded Benefits, Inc. (d/b/a Insurance Design Administrators)
Xxxxxx X. Xxxxx
Xxxxxxx Xxxxxxx
The Xxxxxxx Company Inc.
Xxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx Administrators, L.L.C.
Xxx X. Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxxx X. Xxxxxxxx
C-7
VeraSource Excess Risk Ltd.
Xxx X. Xxxxxxx
Xxxxx X. Xxxxx
C-8
SCHEDULE D
List of Founding Companies
Xxxxxxx Xxxxxx & Xxxxxxxxx, Certified Public Accountants, A Professional
Corporation
Xxxx Frankfort Xxxxx & Xxxx, P.C.
Xxxxxxx, Rudzewicz & Company, P.C.
Berry, Dunn, XxXxxx & Xxxxxx, Chartered
Xxxxxx Xxxx & Xxxxxx, P.C.
Grace & Company, P.C.
Simione, Scillia, Xxxxxx & Xxxxxxx LLC
Xxxxxx X. Driver Co., Inc.
Self Funded Benefits, Inc. (d/b/a Insurance Design Administrators)
The Xxxxxxx Company Inc., Xxxxxxx Administrators, LLC and Xxxx Source
Excess Risk Ltd.
D-1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement and under each Transaction Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) As of Closing Time, the Company has authorized capital stock
consisting of __________ shares of Common Stock, par value $.01 per share, and
10,000,000 shares of Preferred Stock, par value $.01 per share (the "Preferred
Stock"); prior to the closing of the transactions contemplated by each of the
Merger Agreements and the issuance of shares of Common Stock as contemplated
thereby and by the Purchase Agreement, the Company had issued and outstanding
__________ shares of Common Stock and no shares of Preferred Stock; upon
consummation of the Combination and the issuance of __________ shares of Common
Stock as contemplated by the Merger Agreements (which, together with the
__________ shares of Common Stock issued prior to the Combination, are all the
shares of Common Stock issued or to be issued prior to the issuance and sale of
the Securities), but without giving effect to the issuance of the Securities
pursuant to the terms of this Agreement, the Company will have issued and
outstanding __________ shares of Common Stock (on a post-split basis) and no
shares of Preferred Stock. All of the outstanding shares of Common Stock have
been duly authorized and validly issued, fully paid and nonassessable; the
shares of Common Stock to be issued and sold to the founders in the Combination
(the "Combination Shares") have been duly authorized and, when issued and
delivered by the Company pursuant to the Merger Agreements against payment of
the consideration set forth in the Merger Agreements, will be validly issued,
fully paid and nonassessable; none of the outstanding shares of capital stock of
the Company including, without limitation, any of the Combination Shares or the
Securities, were issued in violation of the preemptive or other similar rights
of any securityholder of the Company arising (a) by operation of the Restated
Certificate of Incorporation or By-laws of the Company or the General
Corporation Law of the State of Delaware or (b) any contract known to us to
which the Company is a party. To our knowledge, except as described in the
Prospectus, there are no outstanding options, warrants or other rights calling
for the issuance of, and there are no commitments to issue any shares of,
capital stock of the Company or any security convertible into or exchangeable or
exercisable for capital stock of the Company.
A-1
(v) The Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to the Purchase Agreement and, when issued and delivered
by the Company pursuant to the Purchase Agreement against payment of the
consideration set forth in the Purchase Agreement, will be validly issued and
fully paid and non-assessable.
(vi) The issuance of the Securities is not subject to preemptive or other
similar rights of any securityholder of the Company arising (a) by operation of
the Restated Certificate of Incorporation or By-laws of the Company or the
General Corporation Law of the State of Delaware or (b) any contract known to us
to which the Company is a party.
(vii) Each Subsidiary of the Company existing on the date prior to the
date of this opinion letter, which does not include any Founding Company (such
existing subsidiaries are collectively referred to herein as "Existing
Subsidiaries" and individually referred to as an "Existing Subsidiary"), and,
based solely on opinions of counsel to each Founding Company, the names of which
firms are set forth on schedule 1 hereto (collectively the "Founding Company
Counsel Opinions"), each Founding Company and each Attest Firm has been duly
incorporated or organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction of its
incorporation or organization, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under each Transaction
Agreement to which it is a party and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to qualify or to
be in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all the issued and
outstanding capital stock of each Existing Subsidiary, and, based solely on the
Founding Company Counsel Opinions, of each Founding Company has been duly
authorized and validly issued, is fully paid and non-assessable; after giving
effect to the Combination, and with respect to a Founding Company, based solely
on a review of the Merger Agreements and the Exhibits thereto and the respective
Founding Company Counsel Opinion, all of the issued and outstanding capital
stock of each Existing Subsidiary and each Founding Company will be owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim, shareholders agreement or
voting trust and no options, warrants or other rights to purchase, agreements,
or other obligations to issue or other rights to convert any other obligations
into shares of capital stock or ownership interests in any Existing Subsidiary
or Founding Company is outstanding; none of the outstanding shares of the
capital stock of any Existing Subsidiary or, based solely on the Founding
Company Counsel Opinions, of any Founding Company was issued in violation of the
preemptive or similar rights of any security holder arising (a) by operation of
the applicable constituent documents or (b) any contract known to us to which
such Existing Subsidiary or such Founding Company is a party.
(viii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
A-2
(ix) Each of the Registration Statement, including any Rule 462(b)
Registration Statement, the Form S-4 and the Post-Effective Amendment has been
declared effective under the 1933 Act; any required filing of the Prospectus,
the Rescission Offer Prospectus and the Merger Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b); and, to the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement, any Rule 462(b) Registration
Statement, the Form S-4 or the Post-Effective Amendment has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or are
pending or threatened by the Commission.
(x) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus, the Form S-4, the Post-Effective Amendment, the
Rescission Offer Prospectus, the Merger Prospectus and each amendment or
supplement to any of the foregoing as of their respective effective or issue
dates (other than the financial statements and other financial data included
therein or omitted therefrom, as to which we express no opinion) complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(xi) If Rule 434 has been relied upon, the Prospectus was not "materially
different," as such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time it became effective.
(xii) The Company has been advised that the Securities, subject to
official notice of issuance, have been approved for listing on the New York
Stock Exchange. The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable requirements of the
Delaware General Corporation Law, with any applicable requirements of the
Company's Restated Certificate of Incorporation, as amended, and bylaws of the
Company and the requirements of the New York Stock Exchange.
(xiii) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the Company or
any Subsidiary is a party, or to which the property of the Company or any
Subsidiary is subject, before or brought by any Governmental Authority, which
might reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the Rescission Offer, the Combination
or the transactions contemplated in the Purchase Agreement, the Registration
Statement, the Form S-4 and the Post-Effective Amendment or the performance by
the Company of its obligations under the Purchase Agreement or the performance
by the Company or any Subsidiary of its obligations in connection with the
Combination, including, without limitation, under any Transaction Agreement.
(xiv) The statements in the Prospectus under "Description of Capital
Stock--Common Stock", "Business--Property", "Description of Capital Stock--
Preferred Stock," and "Shares Eligible for Future Sale" and in the Registration
Statement under Item 14, to the extent that it constitutes matters of law,
summaries of legal matters, the Company's Certificate of Incorporation and by-
laws
A-3
or legal proceedings, or legal conclusions, have been reviewed by us and fairly
and accurately present in all material respects the matters referred to therein.
(xv) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(xvi) All descriptions in the Registration Statement, the Form S-4 and
the Post-Effective Amendment of contracts and other documents to which the
Company or its Subsidiaries are a party are accurate in all material respects;
to the best of our knowledge, there are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments of a character
required to be described or referred to in the Registration Statement, the Form
S-4 or the Post-Effective Amendment or to be filed as exhibits thereto other
than those described or referred to therein or filed as exhibits thereto.
(xvii) To the best of our knowledge and, with respect to each Founding
Company and each Attest Firm, based solely on the respective Founding Company
Counsel Opinion, none of the Company, any Founding Company, any Existing
Subsidiary or any Attest Firm is in violation of its charter or by-laws, and no
default by the Company, any Founding Company, any Existing Subsidiary or any
Attest Firm exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed as an exhibit to the Registration Statement.
(xviii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any Governmental Authority
(other than under the 1933 Act and the 1933 Act Regulations [or relating to
regulating, licensing or permitting the practice of public accountancy,] which
have been obtained, or as may be required under the securities or blue sky laws
of the various states, as to which we express no opinion) is necessary or
required in connection with the due authorization, execution and delivery of the
Purchase Agreement, for the offering, issuance or sale of the Securities or in
connection with the transactions contemplated by the Registration Statement or
(other than under the 1933 Act and the 1933 Act Regulations, which have been
obtained, or as may be required under the securities or blue sky laws of the
various states, which have been obtained) in connection with the Rescission
Offer, the issuance or sale of shares of the Company's Common Stock pursuant to
the Combination or the transactions contemplated by the Form S-4 or the Post-
Effective Amendment.
(xix) The execution and delivery of the Purchase Agreement and the
consummation by the Company of the transactions contemplated in the Purchase
Agreement and in the Registration Statement, the Form S-4 and the Post-Effective
Amendment (including, without limitation, the Rescission Offer, the Combination
and the issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the caption "Use Of
Proceeds") and compliance by the Company, each Subsidiary and each Attest Firm
with their respective obligations under the Purchase Agreement and each
Transaction Agreement do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or
A-4
constitute a breach of, or default or Repayment Event under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company, any Existing Subsidiary or (based solely on the
respective Founding Company Opinion) any Founding Company or any Attest Firm
pursuant to any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to us, to
which the Company, any Founding Company, any Existing Subsidiary or any Attest
Firm is a party or by which it or any of them may be bound, or to which any of
the property or assets of the Company, any Founding Company, any Existing
Subsidiary or any Attest Firm is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the Restated Certificate of Incorporation or by-laws of the Company, any
Founding Company, any Existing Subsidiary or any Attest Firm, or to our
knowledge, any law or administrative regulation normally applicable to
transactions of the sort contemplated by the Purchase Agreement and the Merger
Agreements or any administrative or court decree known to us to which the
Company, any Subsidiary or any Attest Firm is a party or by which they or their
properties are expressly bound.
(xx) To the best of our knowledge, except as disclosed in the Prospectus,
there are no persons with registration rights or other similar rights to have
any securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 0000 Xxx.
(xxi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
(xxii) Each Merger Agreement (which have been filed with the Commission
as exhibits to the Registration Statement) and each other Transaction Agreement
with respect to the Combination has been duly and validly authorized, executed
and delivered by the Company, the respective Founding Company, the respective
Existing Subsidiary and the respective Attest Firm and constitutes the valid and
binding obligation of the Company and each Existing Subsidiary and (based solely
on the respective Founding Company Opinion) of each Founding Company and each
Attest Firm, enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting creditors' rights and remedies generally, or as may be modified
by general principles of equity, whether applied by a court of law or equity; no
Founding Company shareholder had any dissenters rights with respect to the
Combination except as described in the Form S-4; to the best of our knowledge,
no Founding Company shareholder has elected dissenters rights and no other
contractual rights exist giving any of the owners of the Founding Companies any
preemptive rights or rights of first offer or first refusal with respect to the
Securities.
(xxiii) The transactions contemplated by each Merger Agreement have been
consummated in accordance with the applicable laws, rules and regulations of the
applicable jurisdictions relating to each such transaction and with the terms of
the respective Merger Agreement. Each of the acquisitions of the Founding
Companies by an Existing Subsidiary of the Company is effective under the law of
the jurisdiction of the surviving entity.
A-5
(xxiv) The Rescission Offer complied with, or was exempt from, all
Federal and state securities laws, including, without limitation, the 1933 Act,
the 1933 Act Regulations and the securities or blue sky laws of the various
states (other than the antifraud provisions of Federal and state securities laws
and other laws, rules and regulations as to the adequacy or accuracy of
disclosure, as to which we express no opinion and make no statement other than
the statements set forth in the penultimate paragraph of this Exhibit A). To our
knowledge, the Rescission Offer has been accepted in accordance with its terms
by all offerees who received such Rescission Offer, which offerees constituted
all owners of the Founding Companies and all employees of the Founding Companies
who were informed prior to the initial filing of the Form S-4 that they might
receive shares of the Company's Common Stock in the Combination and none of such
acceptances has been revoked or otherwise challenged as invalid. No person who
has accepted the rescission offer has any rescission rights with respect to any
shares of the Company's Common Stock or related claims (other than claims
arising under the antifraud provisions of Federal or state securities laws or
other laws, rules and regulations as to the adequacy or accuracy of disclosure,
as to which we express no opinion and make no statement other than the
statements set forth in the penultimate paragraph of this Exhibit A) arising out
of the alleged offers and/or sales of Common Stock which gave rise to the
Rescission Offer.
(xxv) The Combination Shares were issued in compliance with, or were
exempt from, all Federal and state securities laws (other than the antifraud
provisions of Federal and state securities laws or other Laws, rules and
regulations as to the adequacy or accuracy of disclosure, as to which we express
no opinion and make no statement other than the statements set forth in the
penultimate paragraph of this Exhibit A), including, without limitation, the
1933 Act, the 1933 Act Regulations and the securities or blue sky laws of the
various states.
In addition, counsel shall confirm that they have participated in the
preparation of the Registration Statement, the Prospectus, the Form S-4, the
Post-Effective Amendment, the Rescission Offer Prospectus and the Merger
Prospectus and in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the Company,
representatives of the Underwriters and counsel for the Underwriters, at which
the contents of the Registration Statement, the Prospectus, the Form S-4, the
Post-Effective Amendment, the Rescission Offer Prospectus and the Merger
Prospectus and related matters were discussed and, although (except as
specifically set forth in paragraph (x), (xiv), (xv) and (xvi) above) such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus, the Form S-4, the Post-Effective
Amendment, the Rescission Offer Prospectus and the Merger Prospectus, on the
basis of the foregoing, nothing has come to such counsel's attention that has
led such counsel to believe that the Registration Statement or any amendment
thereto, including the Rule 430A Information and Rule 434 Information (if
applicable), the Form S-4 or the Post-Effective Amendment (except for financial
statements and other financial data included therein or omitted therefrom, as to
which such counsel need make no statement), at the time such Registration
Statement or any such amendment, the Form S-4 or the Post-Effective Amendment,
as the case may be, became effective, 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 or that the
Prospectus, the Rescission Offer
A-6
Prospectus or the Merger Prospectus or any amendment or supplement to the
Prospectus, the Rescission Offer Prospectus or the Merger Prospectus (except for
financial statements and other financial data included therein or omitted
therefrom, as to which such counsel need make no statement), at the time the
Prospectus, the Rescission Offer Prospectus or the Merger Prospectus, as the
case may be, was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering the opinions set forth in paragraph (i) through (xxv) above,
such counsel may rely (A) as to those matters involving the Founding Companies
as described in this Exhibit A, upon the opinion of counsel to each Founding
Company, provided that such counsel shall state in their opinion that they
believe they and the Underwriters are justified in relying on such opinion of
counsel to each Founding Company, and (B) as to matters of fact (but not as to
legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
A-7
Exhibit B
FORM OF OPINION OF
VEDDER, PRICE, XXXXXXX & KAMMHOLZ
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(ii)
B-1
Exhibit C
FORM OF OPINION OF
COUNSEL TO EACH FOUNDING COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(iii)
Unless otherwise defined herein, capitalized terms in this Exhibit C shall
have the meanings given to such terms in the applicable Amended and Restated
Merger Agreement dated as of September 24, 1999.
1. The Company is a corporation duly incorporated, validly existing, and in
good standing under the laws of the [jurisdiction of organization]. Each of
the Company Subsidiaries is duly [incorporated], validly existing and in
good standing under the laws of the jurisdiction of its [organization]. The
[Attest Entity] is a limited liability company duly formed, validly
existing and in good standing under the laws of [jurisdiction of
organization]. Each of the Attest Entity, the Company and the Company
Subsidiaries has the [partnership/limited liability company/corporate]
power and authority to own, lease and operate such Person's properties and
assets and to carry on such Person's business as now being conducted, and
to perform all such Person's obligations under the Contracts to which such
Person is a party or by which it is bound. Each of the Attest Entity, the
Company and the Company Subsidiaries is duly qualified to do business and
in good standing as a foreign [corporation] or limited liability company,
as applicable, in the jurisdictions reflected on attached Exhibit A.
2. The authorized and, to our knowledge (based solely on a review of the
records of each of the Company and the Company Subsidiaries), the
outstanding capitalization of each of the Company and the Company
Subsidiaries is accurately set forth in the Agreement or on attached
Exhibit A, as applicable; to our knowledge, none of such outstanding
securities was issued in violation of the preemptive or similar rights of
any holder of securities; and we are not aware of any options, agreements,
understandings or commitments to issue shares or any other equity interests
of any of the Company or the Company Subsidiaries [other than __________].
3. To our knowledge and based solely on a review of the records of the Company
and the Company Subsidiaries, (a) [the Stockholders own/Seller owns]
beneficially and of record all of the issued and outstanding shares of
capital stock of the Company, and (b) the Company owns beneficially and of
record [all of the equity interests] of each of the Company Subsidiaries.
C-1
4. The Company has all requisite corporate power and authority to enter into
the Transaction Agreements to which it is a party and to perform its
obligations under each such agreement. "Transaction Agreements" for
purposes of this opinion means the Agreement, the Services Agreement, the
Incentive Compensation Agreement, the Separate Practice Agreement, the
Stockholders Agreement and the Release. The execution and delivery of each
such agreement and the consummation of the transactions contemplated
therein have been duly authorized by all necessary [corporate] action on
the part of the Company and its stockholders. Each such agreement has been
duly executed and delivered by the Company and constitutes the legal, valid
and binding agreement of the Company, enforceable against the Company in
accordance with its term except as affected by (i) the effects of
bankruptcy, insolvency, reorganization, receivership, moratorium and other
similar laws affecting the rights and remedies of creditors generally and
(ii) the effects of general principles of equity, whether applied by a
court of law or equity, with respect to the performance and enforcement of
such agreements.
5. [Each of the Attest Entity and] Seller has all requisite power and
authority to enter into the Transaction Agreements to which it is a party
and to perform its obligations under such agreements. The execution and
delivery of such agreements and the performance of [the Attest Entity's
and] Seller's obligations thereunder have been duly authorized by all
necessary [partnership/limited liability company] action on the part of
[the Attest Entity and] Seller and its [partners/members]. Each such
agreement has been duly executed and delivered by [the Attest Entity and]
Seller and constitutes the legal, valid and binding agreement of [the
Attest Entity and] Seller, enforceable against [the Attest Entity and]
Seller in accordance with its terms except as affected by (i) the effects
of bankruptcy, insolvency, reorganization, receivership, moratorium and
other similar laws affecting the rights and remedies of creditors generally
and (ii) the effects of general principles of equity, whether applied by a
court of law or equity, with respect to the performance and enforcement of
such agreements.
6. Each of the Transaction Agreements to which a [Stockholder/Partner/Member]
is a party has been duly executed and delivered by each such
[Stockholder/Partner/Member] and is enforceable against each such
[Stockholder/Partner/Member] in accordance with its terms except as
affected by (i) the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting the rights and
remedies of creditors generally and (ii) the effects of general principles
of equity, whether applied by a court of law or equity, with respect to the
performance and enforcement of such agreements.
7. The execution and delivery by each of [the Attest Entity,] Seller, the
Company and the [Stockholders/Partners/Members] of the Transaction
Agreements to which each such Person is a party and the performance by each
such Person of such Person's obligations under such agreements will not:
(i) violate [the Attest Entity's] Seller's, any Company Subsidiary's or the
Company's Organizational Documents, (ii) to our knowledge, result
C-2
in a breach of any of the terms or conditions of or constitute a default
under or result in the creation of any lien, charge or encumbrance upon any
of their properties or assets pursuant to, any material note, bond,
mortgage, indenture, deed of trust, license, franchise, permit, concession,
contract, lease or other instrument, obligation or agreement of any kind to
which [the Attest Entity,] Seller, the Company, any Company Subsidiary or,
to our knowledge, any of the [Stockholders/Partners/Members] is a party or
by which [the Attest Entity,] Seller, the Company, any Company Subsidiary
or, to our knowledge, any of the [Stockholders/Partners/Members], or any of
their respective properties or assets may be bound or affected (each a
"Material Contract") or (iii) to our knowledge, constitute an event that
would permit any party to modify, alter, amend, cancel or terminate any
Material Contract. None of [the Attest Entity,] Seller, the Company, any of
the Company Subsidiaries or, to our knowledge, any
[Stockholder/Partner/Member] is (i) a party to, or expressly bound by, any
judgment, injunction, or decree of any court or Governmental Authority that
would restrict or interfere with the performance by such Person, of such
Person's obligations under the Transaction Agreements to which any such
Person is a party, (ii) to our knowledge, in violation of its
Organizational Documents [except for such violations that would not result
in a Material Adverse Effect] or (iii) to our knowledge, in default in the
due performance or observance of any material obligation, agreement,
covenant or condition contained in any Material Contract.
8. No declaration, filing or registration with, or notice to, or
authorization, consent or approval of, any Governmental Authority is
necessary for the execution and delivery of the Transaction Agreements to
which any of [the Attest Entity] Seller, the
[Stockholders/Partners/Members] or the Company is a party or to
consummation by any of [the Attest Entity,] Seller, the
[Stockholders/Partners/Members] or the Company of the transactions
contemplated by the Transaction Agreements which any such Person is a
party, other than such declarations, filings, registrations, notices,
authorizations, consents or approvals that have been made or obtained or
that, if not made or obtained, would not, individually or in the aggregate,
have a material adverse effect on the business, assets, condition
(financial or other) or operating results, of any of [the Attest Entity,]
Seller, the Company or any Company Subsidiary and except for those relating
to regulating, licensing or permitting the practice of public accountancy.
9. Based solely on a review of our litigation docket and officers'
certificates, there are no actions or proceedings against any of [the
Attest Entity,] Seller, the [Stockholders/Partners/Members], the Company or
the Company Subsidiaries pending or to our knowledge threatened, before any
court, Governmental Authority, or arbitrator, that seek to affect the
enforceability of any Transaction Agreement to which such Person is a party
or which might reasonably be expected to result in a material adverse
change in the business, assets, condition (financial or other) or operating
results of [the Attest Entity] or the Company and the Company Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business.
C-3
10. The Company Stock has been validly issued, fully paid, non-assessable and
is free of any adverse claim, any lien in favor of any Person and any
restrictions on transfer imposed by any Person.
11. Upon filing of the Merger Documents with the Secretary of State of the
State of ____________________ and the Secretary of State of the State of
Delaware, the Merger will have the effects described in Sections 1.2 and
2.1.1 of the Agreement.
C-4
Form of lock-up from directors, officers or other stockholders pursuant to
Section 5(i)
Exhibit D
_________ , 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxx Partners LLC
CIBC Xxxxxxxxxxx Corp.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Proposed Public Offering by Centerprise Advisors, Inc.
------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Centerprise Advisors, Inc., a Delaware corporation (the "Company"), understands
that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") Xxxxxx Brothers Inc., Xxxxxx Xxxxxx Partners LLC and CIBC
Xxxxxxxxxxx Corp. propose to enter into a Purchase Agreement (the "Purchase
Agreement") with the Company providing for the public offering of shares (the
"Securities") of the Company's common stock, par value $.01 per share (the
"Common Stock"). In recognition of the benefit that such an offering will confer
upon the undersigned as a stockholder [and an officer and/or director] of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Purchase Agreement that, during a period of 180
days from the date of the Purchase Agreement, the undersigned will not, without
the prior written consent of Xxxxxxx Xxxxx, directly or indirectly, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of the Company's
Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as
D-1
amended, with respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap transaction is to be settled by delivery of Common Stock
or other securities, in cash or otherwise.
Very truly yours,
Signature:
Print Name:
D-2
