Exhibit 1.1
FIBERMARK, INC.
1,500,000 Shares
Common Stock
(par value $.001 per share)
UNDERWRITING AGREEMENT
December , 1997
BT Alex. Xxxxx Incorporated
PaineWebber Incorporated
As Representatives of the
Several Underwriters
c/o BT Alex. Xxxxx Incorporated
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Fibermark, Inc., a Delaware corporation (the "Company"), hereby confirms
its agreement with you, as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to sell to the underwriters named in Schedule
I hereto (the "Underwriters"), for whom you are acting as reprentatives (the
"Representatives"), an aggregate of 1,500,000 shares (the "Firm Securities")
of common stock, par value $.001 per share, of the Company (the "Common
Stock"). In addition, solely for the purpose of covering over-allotments, the
Company proposes to grant to the Underwriters the option, exercisable by the
Representatives of the Underwriters, to purchase from the Company up to an
additional 225,000 shares of Common Stock (the "Additional Securities") as
set forth below. The Firm Securities and the Additional Securities that may
be sold to the Underwriters are hereinafter collectively referred to as the
"Securities."
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The Securities are being sold in connection with the acquisition by
the Company (the "Acquisition") of Steinbeis Xxxxxxx GmbH ("Xxxxxxx") pursuant
to a stock purchase agreement dated as of November [ ], 1997 (the "Acquisition
Agreement") in which the Company has agreed to purchase all of the outstanding
capital stock of Xxxxxxx.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (SEC File No. 333-[ ])
and a related preliminary prospectus for the registration of the Securities
under the Securities Act of 1933, as amended (the "Act"), and has filed such
amendments thereto, if any, as may have been required prior to the date hereof.
As used in this Agreement, the term "Registration Statement" means
such registration statement, as amended at the time when it was or is
declared effective, including all financial statements and schedules and
exhibits thereto and including any information omitted therefrom pursuant to
Rule 430A under the Rules and Regulations ("Rule 430A"), if applicable, and
included in the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus relating to the Securities as filed with
such registration statement or any amendment thereto (including the
prospectus, if any, included in such registration statement or any amendment
thereto at the time it was or is declared effective if declared effective
prior to the execution and delivery of this Agreement); and the term
"Prospectus" means the prospectus relating to the Securities as first filed
with respect to such registration statement with the Commission pursuant to
Rule 430A and Rule 424(b) under the Rules and Regulations ("Rule 424(b)"), if
required, or, if no prospectus is required to be filed pursuant to Rule 430A
or Rule 424(b), such term means the prospectus included in such registration
statement at the time it became or becomes effective; provided that if a
revised Prospectus shall be provided to the Underwriters by the Company for
use in connection with the offering and sale of the Securities that differs
from the prospectus on file at the Commission at the time such registration
statement becomes effective or as first filed under Rule 430A and Rule
424(b), the term "Prospectus" shall refer to the revised prospectus from and
after the time it is first provided to the Underwriters for such use. If the
Company has filed an abbreviated registration statement to register
additional securities pursuant to Rule 462(b) under the Act (the "Rule 462
Registration Statement"), then any reference herein to "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
All references in this Agreement to the Registration
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Statement, Preliminary Prospectus and Prospectus and to financial statements
and schedules and other information that is "contained," "included," "set
forth," "described in" or "stated" therein (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that is or is deemed to be incorporated by
reference therein; and all references in this Agreement to amendments or
supplements to the Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to mean and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), that
is or is deemed to be incorporated by reference therein.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The registration statement originally filed with the Commission
with respect to the Securities, including the form of prospectus, together
with all amendments thereto, has been prepared by the Company in conformity
in all material respects with the requirements of the Act and the rules and
regulations (the "Rules and Regulations") of the Commission thereunder and
the Company meets all the requirements for filing on Form S-3. The
Registration Statement at the time it was or will be declared effective and
at the Closing Date (as hereinafter defined) complies and will comply in
all material respects with the requirements of the Act and the Rules and
Regulations.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus nor instituted any proceeding for
such purpose. When the Registration Statement or any amendment thereto was
or is declared effective and on the Closing Date (as hereinafter defined),
it did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus, and any
amendments or supplements thereto on the date first filed with the
Commission pursuant to Rule 424(b) (or if not filed, on the date first
provided to the Underwriters in connection with the offering and sale of
the Securities) and on the Closing Date, (i) complied and will comply in
all material respects with the requirements of the Act and the Rules and
Regulations, and (ii) did not and will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
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therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (b) do not apply to statements or omissions in
the Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto made in reliance upon and in conformity
with written information with respect to the Underwriters furnished to the
Company by BT Alex. Xxxxx Incorporated specifically for use therein.
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations (the "1934
Act Regulations") of the Commission thereunder, and when read together with
the other information in the Prospectus, at the time the Registration
Statement and any amendments thereto became or becomes effective and at the
Closing Date, 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, in the light of the
circumstances under which they were made, not misleading.
(d) Each of the Company, its subsidiaries (the "Subsidiaries") and
each of Xxxxxxx and its subsidiaries (the "Xxxxxxx Subsidiaries") is, and
after giving effect to the Acquisition will be, a corporation, partnership
or other business entity, as the case may be, duly organized, validly
existing and in good standing under the laws of its jurisdiction of its
formation. Except as otherwise set forth in the Registration Statement,
the Company or Xxxxxxx, as the case may be, owns, directly or indirectly,
free and clear of all mortgages, pledges, liens, security interests,
conditional sale agreements and other charges (except for inchoate
statutory obligations that are not yet due and payable and other immaterial
liens), all of the outstanding equity interests of each Subsidiary and
Xxxxxxx Subsidiary, as the case may be, and all of such equity interests
have been duly and validly authorized and issued and are fully paid and
non-assessable. Except where the failure would not have a material adverse
effect on the business, business prospects, financial condition, results of
operation, earnings or properties of either (x) the Company and the
Subsidiaries, taken as a whole, or (y) after giving effect to the
Acquisition, the Company, the
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Subsidiaries, Xxxxxxx and the Xxxxxxx Subsidiaries, taken as a whole (in
either case, a "Material Adverse Effect") and except as otherwise
disclosed under the Registration Statement, (i) each of the Company, the
Subsidiaries, Xxxxxxx and the Xxxxxxx Subsidiaries has the power and
authority and all approvals, orders, licenses, certificates, permits and
other governmental authorizations necessary to conduct all of the
activities conducted by it, to own or lease all of the assets owned or
leased by it and to conduct its business as described in the
Registration Statement and the Prospectus and (ii) each is duly licensed
or qualified to do business and in good standing in all jurisdictions in
which the nature of the activities conducted by it and/or the character
of the assets owned and leased by it makes such license or qualification
necessary. Except as otherwise set forth in the Registration Statement,
neither the Company nor Xxxxxxx owns, directly or indirectly, any equity
securities of any corporation or have any material equity interest in
any firm, partnership, association or other entity, other than the
Subsidiaries and the Xxxxxxx Subsidiaries, respectively.
(e) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under the term "Capitalization"
and all such capital stock has been validly authorized and issued and is
fully paid and non-assessable. Other than as disclosed in the Prospectus,
the Company does not have outstanding any options to purchase, or any
rights or warrants to subscribe for, or any securities or obligations
convertible into, or any contracts or commitments to issue or sell shares
of capital stock or any warrants or convertible securities. No holder of
securities of the Company or any Subsidiary is entitled to have such
securities registered under the Registration Statement.
(f) The consolidated financial statements of the Company and
Xxxxxxx(including the footnotes thereto) included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the consolidated financial position, results of operation and cash flows of
the Company and Xxxxxxx, as the case may be, as of the respective dates
thereof and for the respective periods covered thereby, all in conformity
with generally accepted accounting principles ("GAAP") applied on a basis
consistent with prior periods. The unaudited consolidated financial
statements of the Company and Xxxxxxx and the related notes included or
incorporated by reference in the
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Registration Statement and the Prospectus present fairly the
consolidated financial position, results of operations and cash flows of
the Company and Xxxxxxx, as the case may be, at the dates and for the
periods to which they relate, have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
and have been prepared on a basis substantially consistent with that of
the audited financial statements referred to above. The summary and
selected financial and statistical data included in the Registration
Statement and the Prospectus present fairly the information shown
therein and have been prepared and compiled on a basis consistent with
the audited and unaudited financial statements included therein, except
as otherwise stated therein. The consolidated financial statements of
Arcon Holding Corp. ("Arcon") incorporated by reference in the
Registration Statement and the Prospectus present fairly in all material
respects the consolidated financial position of Arcon and its
consolidated subsidiaries as of the dates indicated and the results of
their operations and the changes in their consolidated cash flows for
the periods specified. The consolidated financial statements of CPG
Investors Inc. ("CPG") incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
consolidated financial position of CPG and its consolidated subsidiaries
as of the dates indicated and the results of their operations and the
changes in their consolidated cash flows for the periods specified.
Each of Coopers & Xxxxxxx L.L.P., KPMG Peat Marwick LLP, Price
Waterhouse LLP, Xxxxxx Xxxxxxxx LLP and Deloitte & Touche Gmbh, who has
reported on such financial statements, is an independent accountant as
required by the Act and the Rules and Regulations. No financial
statements are required to be included in the Registration Statement or
the Prospectus, other than those so included.
(g) The pro forma financial statements and other pro forma financial
information (including the notes thereto) included in the Prospectus (A)
comply as to form in all material respects with the applicable requirements
of Regulation S-X promulgated under the 1934 Act, and (B) have been
computed on the bases described therein. The assumptions used in the
preparation of the pro forma finanicial statements and other pro forma
condensed consolidated financial information included in the Prospectus are
reasonable and the adjustments used therein are reasonably appropriate to
give effect to the transactions or circumstances referred to therein.
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(h) The statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth
therein or contemplated thereby, (i) neither the Company, the Subsidiaries
nor Xxxxxxx or any of the Xxxxxxx Subsidiaries has incurred or will have
incurred any liabilities or obligations, direct or contingent, or entered
into any transactions not in the ordinary course of business, except for
liabilities, obligations or transactions that are not material to the
Company and its subsidiaries, taken as a whole; (ii) neither the Company,
the Subsidiaries nor Xxxxxxx or any of the Xxxxxxx Subsidiaries has paid or
declared nor will pay or declare any dividends or other distributions on
its capital stock and (iii) there has not been and will not have been any
change in the capitalization of the Company (except for the exercise of
warrants or options referred to in the Registration Statement), any
Subsidiary, Xxxxxxx or any Gessner Subsidiary or any material adverse
change in the business, business prospects, financial condition or results
of operations of the Company, any Subsidiary, Xxxxxxx or any Xxxxxxx
Subsidiary or in the condition of the Company, any Subsidiary, Xxxxxxx or
any Xxxxxxx Subsidiary or in the value of the assets of the Company, the
Subsidiaries, Xxxxxxx or the Xxxxxxx Subsidiaries that would have a
Material Adverse Effect.
(j) There are no actions, suits or proceedings at law or in equity
pending or, to the knowledge of the Company, threatened, against or
affecting the Company, any Subsidiary, Xxxxxxx or any of the Xxxxxxx
Subsidiaries, any of their respective assets or any of their respective
officers or directors, before or by any federal, state, county or local
commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, that could reasonably be expected to have a
Material Adverse Effect. Neither the Company, the Subsidiaries nor Xxxxxxx
or any of the Xxxxxxx Subsidiaries is involved in any labor dispute (nor,
to their knowledge, is any such dispute threatened) that would have a
Material Adverse Effect.
(k) Each of the Company, the Subsidiaries, Xxxxxxx and each of the
Xxxxxxx Subsidiaries has complied with all laws, regulations and orders
applicable to it or its busi-
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ness, except for any violation of which would not have a Material
Adverse Effect. Each of the Company, the Subsidiaries, Xxxxxxx and each
of the Xxxxxxx Subsidiaries has in all material respects performed all
of the obligations required to be performed by it, and is not in default
under any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, letter of credit agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or other
agreement or instrument to which it is a party or by which it or any of
its property is bound, except for such failures to perform or defaults
as would not have a Material Adverse Effect, and, to the knowledge of
the Company, no other party under any such agreement or instrument to
which the Company, any Subsidiary, Xxxxxxx or any Xxxxxxx Subsidiary is
a party is in material default in any respect thereunder, except for
such defaults as would not have a Material Adverse Effect.
(l) Each of the Company and Xxxxxxx, (i) keeps books, records and
accounts that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the Company and its
Subsidiaries and Xxxxxxx and the Xxxxxxx Subsidiaries, as the case may be,
and (ii) maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles or
any other criteria applicable to such statements and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization and (D) the
recorded value of assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(m) Neither the Company, any of the Subsidiaries nor Xxxxxxx or any
of the Xxxxxxx Subsidiaries is in violation of its organizational
documents.
(n) The Securities have been duly authorized by the Company and will
be, upon payment therefor in accordance with the terms hereof, duly
authorized, validly issued, fully paid and nonassessable and not subject to
preemptive rights or similar contractual rights to purchase securities
issued by the Company. The Securities conform in all
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material respects to all statements with regard thereto contained in the
Registration Statement and the Prospectus.
(o) The Company has all requisite corporate power and authority to
execute and deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
consummation by the Company of the transactions contemplated hereby have
been duly authorized by the Company. This Agreement has been duly
authorized, executed and delivered by the Company; no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation by the Company of the transactions on its
part herein contemplated, except such as may have been obtained under the
Act or otherwise and such as may be required under state securities or
"Blue Sky" laws; the performance of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with or result in a
breach or violation of any of the terms and provisions of or constitute a
default under the Certificate of Incorporation or By-laws of the Company or
any Subsidiary. Except, in each case, for instances that would not result
in a Material Adverse Effect or a material adverse effect on the ability of
the Company to perform its obligations under this Agreement, the
performance of this Agreement and consummation of the transactions
contemplated hereby will not conflict with or result in a breach or
violation of any of the terms and provisions of or constitute a default
under or result in the creation or imposition of any lien, charge, or
encumbrance upon the assets or properties of the Company or any Subsidiary,
pursuant to any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, letter of credit agreement, bond, debenture,
note agreement or other evidence of indebtedness, lease, contract or other
agreement or instrument to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary or any of their respective
properties is bound, or under any statute or under any order, rule or
regulation applicable to the Company or any Subsidiary or their respective
businesses or properties or of any court or other governmental body.
(p) Each of the Company, the Subsidiaries, Xxxxxxx and each of the
Xxxxxxx Subsidiaries has good and indefeasible title to all properties and
assets owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in or referred to in
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the Prospectus or are not material to the business of either (x) the
Company and the Subsidiaries, taken as a whole, or (y) after giving
effect to the Acquisition, the Company, the Subsidiaries, Xxxxxxx and
the Xxxxxxx Subsidiaries, taken as a whole. Each of the Company, the
Subsidiaries, Xxxxxxx and the Xxxxxxx Subsidiaries has valid, subsisting
and enforceable leases for the real properties described in the
Prospectus as leased by it, with such exceptions as are not material
either (x) the Company and the Subsidiaries, taken as a whole, or (y)
after giving effect to the Acquisition, the Company, the Subsidiaries,
Xxxxxxx and the Xxxxxxx Subsidiaries, taken as a whole or do not
materially interfere with the use made of such properties by either (x)
the Company and the Subsidiaries, taken as a whole, or (y) after giving
effect to the Acquisition, the Company, the Subsidiaries, Xxxxxxx and
the Xxxxxxx Subsidiaries, taken as a whole.
(q) There is no document or contract of a character required to be
described in the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as required; and no
statement in this Agreement or in any certificate or document required by
this Agreement to be delivered to you is, was when made, or as of the
Closing Date (as hereinafter defined) or any Option Closing Date (as
hereinafter defined) will be, inaccurate, untrue or incorrect in any
material respect.
(r) Except for instances that would not result in a Material Adverse
Effect, each of the Company, the Subsidiaries, Xxxxxxx and the Xxxxxxx
Subsidiaries possesses the right to use all patents, patent applications,
trademarks, trade names, service marks, service names, copyrights and
licenses necessary for the conduct of the business, as presently conducted,
of the Company, the Subsidiaries, Xxxxxxx and the Xxxxxxx Subsidiaries and,
except as disclosed in the Registration Statement or Prospectus have not
received any notice of conflict with the asserted rights of others in
respect thereof.
(s) The Company is not, and does not intend to conduct its business
in a manner that would cause it to become, an "investment company" as
defined in Section 3(a) of the Investment Company Act of 1940 as amended
(the "Investment Company Act").
(t) None of the Company, the Subsidiaries or an agent acting on their
behalf has taken or will take any
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action that might cause this Agreement or the sale of the Securities to
violate Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System.
(u) Neither the Company nor any of its officers or directors or
affiliates (as defined in the Rules and Regulations) has taken or will
take, directly or indirectly, any action designed to stabilize or
manipulate the price of any security of the Company, or that has
constituted or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company,
to facilitate the sale or resale of any of the Securities in violation of
the Exchange Act or any applicable rules of the New York Stock Exchange
("NYSE").
(v) The Company, each Subsidiary, Xxxxxxx and each Xxxxxxx Subsidiary
have filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof except for returns being
contested in good faith and have paid all taxes due and owing thereon
except for amounts being contested in good faith, and no material tax
deficiency is currently being asserted against the Company, any Subsidiary,
Xxxxxxx or any Gessner Subsidiary that could have a Material Adverse
Effect.
(w) Each of the Company, the Subsidiaries, Xxxxxxx and each Xxxxxxx
Subsidiary is in compliance with all environmental laws and with the terms
and conditions of any permit, license or approval required thereunder in
connection with the operation of its business, property and assets where
the failure to be in such compliance could reasonably be expected to have,
singly or in the aggregate, a Material Adverse Effect; and, except as
disclosed in the Prospectus, neither the Company, any of the Subsidiaries
nor Xxxxxxx or any Xxxxxxx Subsidiary has any liability, absolute or
contingent, under any environmental law and there is no civil, criminal or
administrative action, suit, demand, hearing, notice of violation or
deficiency, investigation, proceeding or notice or demand letter pending or
threatened against the Company, any of the Subsidiaries or Xxxxxxx or any
Xxxxxxx Subsidiary, under any environmental law.
(x) The Acquisition Agreement has been duly and validly authorized by
all necessary corporate action on behalf of the Company and is a valid and
legally binding obligation of the Company, enforceable in accordance with
its terms.
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3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at
a purchase price of $[ ] per share, the number of Firm Securities set
forth opposite their respective names in Schedule I hereto. The Representatives
shall release the Firm Securities for public sale promptly after this Agreement
becomes effective. The Representatives may from time to time change the public
offering price and other terms of the offering after the initial public offering
to such extent as they may determine.
In addition, upon written notice from you to the Company, not more
than 30 days from the date hereof, the Underwriters may purchase from time to
time all or less than all of the Additional Securities at the purchase price per
share to be paid for the Firm Securities solely to cover over-allotments. The
Company agrees to sell to the Underwriters such Additional Securities and the
Underwriters agree, severally and not jointly, to purchase such Additional
Securities. Such Additional Securities shall be purchased for the account of
each Underwriter in the same proportion as the number of shares of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of shares of Firm Securities (subject to adjustment by you to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the offering of the Firm
Securities. This option may be exercised at any time on or before the thirtieth
day following the date hereof, by written notice to the Company. Such notice
shall set forth the aggregate number of Additional Securities as to which the
option is being exercised, and the date and time when the Additional Securities
are to be delivered (such date and time being herein referred to as an "Option
Closing Date"); provided, however, that no Option Closing Date shall be earlier
than the Closing Date (as defined below) nor earlier than the second business
day after the date on which notice of the exercise of the option shall have been
given nor later than the eighth business day after the date on which notice of
the option shall have been given. No Additional Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Additional Securities or any
portion thereof may be surrendered and terminated at any time upon notice by you
to the Company.
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(b) Certificates in definitive form for the Firm Securities that
each Underwriter has agreed to purchase hereunder, and in such denomination
or denominations and registered in such name or names as such Underwriter
requests upon notice to the Company at least 48 hours prior to the Closing
Date, shall be delivered by or on behalf of the Company to the Underwriters,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of same day funds, or such other payment procedures
agreed to by the parties, to the account of the Company. Such delivery of
and payment for the Firm Securities shall be made at the offices of Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New
York time, on [ ], 1997, or at such other place, time or date as you
and the Company may agree upon or as you may determine pursuant to Section
7(a) hereof, such time and date of delivery against payment being herein
referred to as the "Closing Date." The Company will make such certificates
for the Firm Securities available for checking and packaging by the
Underwriters at the offices of BT Alex. Xxxxx Incorporated in New York, New
York at least 24 hours prior to the Closing Date.
In the event the option with respect to the Additional Securities is
exercised, certificates in definitive form for the Additional Securities that
such Underwriter has agreed to purchase hereunder, and in such denomination
or denominations and registered in such name or names as such Underwriter
requests upon notice to the Company at least 48 hours prior to the Option
Closing Date, shall be delivered by the Company to the Underwriters, against
payment by or on behalf of such Underwriter of the purchase price therefore
by wire transfer of same day funds or such other payment procedures agreed to
by the parties, to the account of the Company. Such delivery of and payment
for the Additional Securities shall be made at each Option Closing Date at
the above-mentioned offices. The Company will make certificates for the
Additional Securities available for inspection, checking and packaging by the
Underwriters at the offices in New York, New York of BT Alex. Xxxxx
Incorporated at least 24 hours prior to each Option Closing Date.
4. Offering by the Underwriters. After the Registration Statement
becomes effective, the Underwriters propose to offer for sale to the public
the Securities at the price and upon the terms set forth in the Prospectus
relating to the Securities.
5. Covenants of the Company. The Company covenants and agrees
with the Underwriters that:
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(a) The Company will, if the Registration Statement is not effective
at the time of the execution and delivery of this Agreement, prepare and
timely file with the Commission an amendment to the Registration Statement
that includes the form of final prospectus, which amendment and form of
final prospectus shall contain all required information with respect to the
Securities and the offering thereof, and, if required by Rule 424(b), a
prospectus under Rule 424(b) (in each case only if the Representatives or
their counsel have not reasonably objected thereto after having been
furnished a copy thereof prior to the proposed filing thereof), and in each
case will notify the Representatives promptly of such filing and will use
its best efforts to cause the Registration Statement, if not effective at
the time of execution of this Agreement (and any amendments thereto), to
become effective promptly. If required, the Company will file the
Prospectus and any amendments or supplements thereto with the Commission in
the manner and within the time period required by Rule 424(b) (but only if
the Representatives or their counsel have not reasonably objected thereto
promptly after having been furnished a copy thereof a reasonable time prior
to the proposed filing thereof). During any time when a prospectus
relating to the Securities is required to be delivered under the Act, the
Company (i) will comply with all requirements imposed upon it by the Act
and the Rules and Regulations to the extent necessary to permit the
continuation of sales of or dealings in the Securities in accordance with
the provisions hereof and of the Prospectus, as then amended or
supplemented, and (ii) will not file with the Commission the Prospectus or
the amendment referred to in the second sentence of Section 2(a) hereof or
any amendment or supplement to such Prospectus or any amendment to the
Registration Statement of which the Representatives and their counsel shall
not previously have been advised and furnished a copy for a reasonable
period of time prior to the proposed filing and as to which filing the
Representatives and their counsel shall not have given their respective
consent, which consent will not be unreasonably withheld or delayed. The
Company will prepare and will file with the Commission, in accordance with
the Act and the Rules and Regulations, promptly upon request by the
Representatives or counsel for the Representatives, any amendments to the
Registration Statement or amendments or supplements to the Prospectus that
may be necessary or reasonably advisable in connection with the
distribution of the Securities by the Underwriters, and the Company will
use its best efforts to cause any such
15
amendment to the Registration Statement to be declared effective by the
Commission promptly. The Company will advise the Representatives,
promptly after it receives notice thereof, of the time when the
Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendments or supplements
thereto have been filed.
(b) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any amendment thereto or any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, or any
amendments or supplements thereto, (ii) the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, (iii) the
institution, threat or contemplation of any proceeding for any such purpose
or (iv) any request made by the Commission for amending the Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance
of any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will cooperate with the Representatives in arranging
for the qualification of the Securities for offering and sale under the
securities or "Blue Sky" laws of such jurisdictions in the United States
and Canada as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise subject.
(d) During such time as a prospectus relating to the Securities is
required to be delivered under the Act, if after due inquiry, the Company
should become aware of any event that occurs, and as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact, or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances
16
under which they were made, not misleading, or if the Company should be
of the opinion that for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the Rules
and Regulations, the Company will promptly notify the Representatives
and their counsel thereof and the Company will prepare and, subject to
Section 6(a) hereof, will file with the Commission, at its sole expense,
an amendment to the Registration Statement or an amendment or supplement
to the Prospectus (in form and substance reasonably satisfactory to the
Representatives and their counsel and in compliance with the Act and the
Rules and Regulations) so that the Prospectus as so supplemented or
amended will not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, or so that the Prospectus will comply
with law, and will deliver to the Representatives, without charge, such
number of copies thereof as they may reasonably request.
(e) The Company will, without charge, provide (i) to the
Representatives and to their counsel a signed copy of the registration
statement originally filed and each amendment thereto (in each case
including exhibits thereto) and the Registration Statement and (ii) so long
as a prospectus relating to the Securities is required to be delivered
under the Act, as many copies of each Preliminary Prospectus and the
Prospectus relating to the Securities and any amendment or supplement
thereto as each Underwriter may reasonably request.
(f) The Company, as soon as reasonably practicable, will make
generally available to holders of the Securities and to the Underwriters
consolidated earning statements of the Company (which need not be certified
by an independent public accountant) that satisfy the provisions of Section
11(a) of the Act and Rule 158 thereunder.
(g) For and during the period ending five years after the effective
date of the Registration Statement, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters copies
of all reports and other communications (financial or otherwise) furnished
by the Company to its securityholders generally and copies of any reports
or financial statements furnished to or filed by the Company with the
Commission or
17
any national securities exchange on which any class of securities of the
Company may be listed.
(h) Prior to the Closing Date and any Option Closing Date, as the
case may be, the Company will furnish to the Representatives, as soon as
they have been prepared and are available, a copy of any unaudited interim
consolidated financial statements of the Company and Xxxxxxx and any pro
forma information for any period subsequent to the period covered by its
most recent financial statements included in the Registration Statement and
the Prospectus.
(i) The Company will file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of companies
that have issued securities that are traded in the over-the-counter market
and quotations for which are reported by the New York Stock Exchange.
(j) The Company will not at any time, directly or indirectly, take
any action designed, or that might reasonably be expected, to cause or
result in, or that will constitute, stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of any
of the Securities in violation of the Exchange Act or any applicable rules
of the New York Stock Exchange.
(k) If, prior to the completion of the distribution of the
Securities, the Company commences engaging in business with the government
of Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the
Commissioner with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in
the Prospectus relating to the Securities, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes
in any material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the Department.
(l) During a period of 90 days from the date hereof "Lock-up
Period"), the Company will not, without the Representatives' prior written
consent, offer, sell, contract to sell, or otherwise dispose of, directly
or indirectly, any shares of Common Stock or any interests therein, or any
securities convertible into, or exchangeable for,
18
shares of Common Stock, or rights to acquire the same except for (i)
Securities issued pursuant to this Agreement; (ii) Common Stock or other
equity securities issued in connection with any merger or other
acquisition by the Company provided that such Common Stock or other
equity securities are specifically made subject to the restrictions of
this paragraph for the Lock-up Period and (iii) Common Stock issuable on
exercise of options or warrants referred to in the Prospectus.
6. Expenses. The Company agrees to pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether
or not the transactions contemplated herein are consummated or this Agreement
is terminated, as provided in this Section 6 including all costs and expenses
incident to (i) the printing or other production of documents with respect to
the transactions, including any costs of printing the registration statement
originally filed with respect to the Securities and any amendment thereto and
the Registration Statement, any Preliminary Prospectus and the Prospectus and
any amendment or supplement thereto, (ii) the printing (or reproduction) and
delivery of this Agreement, the Securities, any Blue Sky Memoranda and all
other documents and agreements printed (or reproduced) and delivered in
connection with the offering of the Securities, (iii) all arrangements
relating to the delivery to the Underwriters of copies of the foregoing
documents, (iv) the fees and disbursements of the counsel, the accountants
and any other experts or advisors retained by the Company or its
subsidiaries, (v) preparation (including printing), issuance and delivery to
the Underwriters of certificates evidencing the Securities, (vi) the
qualification of the Securities in the United States and Canada under state
securities and "Blue Sky" laws, including filing fees and reasonable fees and
disbursements of counsel for the Underwriters relating thereto, (vii) the
filing fees of the Commission and the National Association of Securities
Dealers, Inc. relating to the Securities, (viii) expenses of the Company and
its subsidiaries in connection with any meetings with prospective investors
in the Securities, (ix) advertising relating to the offering of the
Securities (other than as shall have been specifically approved in writing by
the Underwriters to be paid by the Underwriters), (x) the fees and expenses
incurred in connection with the listing of the Securities on the New York
Stock Exchange and (xi) the costs and expenses incident to the performance by
the Company of its obligations hereunder and in connection with the offer,
sale and delivery of the Securities to be sold by it, including any stock
transfer taxes payable upon the sale of such Securities to the
19
Underwriters and the fees and expenses of any counsel retained by the Company.
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 10 hereof or because of any failure, refusal or inability
on the part of the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder (other than
solely by reason of a default by the Underwriters of their obligations
hereunder after all conditions hereunder have been satisfied in accordance
herewith), the Company will promptly reimburse the Underwriters upon demand
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel for the Underwriters) that shall have been incurred
by the Underwriters in connection with the proposed purchase and sale of the
Securities not so delivered.
7. Conditions of the Underwriters' Obligations. The obligation of
the Underwriters to purchase and pay for the Firm Securities on the Closing
Date and the Additional Securities on each Option Closing Date shall be
subject to the following additional conditions:
(a) If the registration statement, as amended, with respect to the
Securities has not been declared effective as of the time of execution and
delivery hereof, the registration statement shall have been declared
effective not later than 11:00 A.M., New York City time, on the date of
this Agreement or, if any post-effective amendment to the Registration
Statement has been filed, 11:00 A.M., New York City time, on the date on
which such post-effective amendment to the Registration Statement has been
filed with the Commission, or such later time and date as shall have been
expressly consented to by the Representatives in writing; if required, the
Prospectus and any amendments or supplements thereto shall have been timely
filed in accordance with Rule 430A and Rule 424(b); no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued and no proceedings for that purpose shall
have been instituted or, to the best knowledge of the Company or the
Underwriters, shall be contemplated or threatened by the Commission.
(b) The Underwriters shall have received an opinion, in form and
substance satisfactory to the Underwriters and Xxxxxx Xxxxxx & Xxxxxxx,
counsel for the Underwriters,
20
dated the Closing Date and each Option Closing Date, as the case may
be, and addressed to the Underwriters, of White & Case, counsel for the
Company and its subsidiaries to the effect that:
(i) Each of the Company and its Subsidiaries is duly
incorporated, validly existing and in good standing under the laws
of its respective jurisdiction of incorporation and has all
requisite corporate power and authority to own its properties and
to conduct its business as described in the Registration Statement
and the Prospectus. Each of the Company and its Subsidiaries is
duly qualified to do business as a foreign corporation in good
standing in the jurisdictions listed on a schedule to such opinion
(which the Company shall have certified are the only jurisdictions
where the failure to be so qualified could, individually or in the
aggregate, have a Material Adverse Effect).
(ii) No authorization, approval, consent or license of any
state or federal governmental or regulatory body, except as may be
required under the Act or the "Blue Sky" laws of the various
jurisdictions, is required in connection with the (A) authorization,
issuance, transfer, sale or delivery of the Securities under this
Agreement; (B) execution, delivery and performance of this Agreement
by the Company; (C) taking of any action contemplated herein or in the
Registration Statement or Prospectus, or if so required all such
authorizations, approvals, consents and licenses, specifying the same,
have been obtained and are in full force and effect.
(iii) The Company has the authorized and outstanding capital
stock, and, to the knowledge of such counsel, stock options and
warrants as set forth in the Registration Statement and the
Prospectus. The outstanding shares of the Common Stock are, and
all of the Securities will be, upon sale and payment therefor under
this Agreement, duly authorized, validly issued, fully paid and
nonassessable, and are not subject to statutory preemptive rights.
The Common Stock has been duly authorized for quotation on
21
the New York Stock Exchange. All issuances of securities by the
Company were exempt from, or complied in all respects with, the
registration or qualification provisions of all applicable federal
and state securities laws.
(iv) All of the issued and outstanding shares of the capital
stock of each Subsidiary are validly issued, fully paid and
nonassessable and, to such counsel's knowledge, all of the issued and
outstanding shares of stock of each Subsidiary are owned by the
Company free and clear of all mortgages, pledges, liens, security
interests, conditional sales agreements, charges and encumbrances of
every nature.
(v) To such counsel's knowledge, no holder of any securities of
the Company has the right to require registration of shares of the
Common Stock or other securities of the Company because of the filing
or effectiveness of the Registration Statement.
(vi) The Company is not an "investment company" as defined in
Section 3(a) of the Investment Company Act.
(vii) The Company has full corporate power and authority to
enter into this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company.
(viii) The Company possesses all state and federal
authorizations, approvals, consents and licenses necessary for the
operations of its business.
(ix) The Registration Statement and the Prospectus, and each
amendment thereof or supplement thereto, comply in all material
respects as to form with the requirements of the Act and the Rules and
Regulations (except that no opinion need be expressed as to financial
statements, financial statement notes and other financial and
statistical data contained in the Registration Statement or the
Prospectus).
(x) The descriptions in the Registration Statement and
Prospectus of contracts and other documents are accurate in all
material respects and fairly present the information required to be
shown; and such counsel does not know of any contracts or documents
22
of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration
Statement (including, for this purpose, all exhibits filed with respect
to any document incorporated by reference therein) that are not
described or filed as required; it being understood that such counsel
need express no opinion as to the financial statements, financial notes
or schedules or other financial or statistical data included therein.
(xi) The Registration Statement has become effective under the
Act, and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are threatened,
pending or contemplated. All filings required by Rule 424 and Rule
430A of the Rules and Regulations have been made.
(xii) The execution and delivery of this Agreement by the
Company, the consummation by the Company of the transactions herein
contemplated and the compliance with the terms of this Agreement do
not and will not conflict with or result in a breach of any of the
terms or provisions of or violate or constitute a default under, the
Certificate of Incorporation or By-laws of the Company or any
Subsidiary, or any material indenture or mortgage known to such
counsel or other material agreement or instrument known to such
counsel to which the Company or any Subsidiary, is a party or by which
the Company or any Subsidiary or any of their respective properties is
bound, or any existing federal or state statute, rule or regulation,
or any judgment, order or decree known to such counsel, of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any
of their respective properties.
Such counsel shall also state that such counsel has participated in
the preparation of the Registration Statement and the Prospectus and
although such counsel has not independently checked the accuracy or
completeness of or otherwise verified, and such counsel is not passing on
and does not assume responsibility for the accuracy or completeness of, the
Registration Statement or the Prospectus, such counsel has generally
reviewed and discussed
23
such information with representatives of the Company, the Underwriters and
their counsel and accountants for the Company. Based on such review and
discussion, nothing has come to the attention of such counsel to lead them
to believe that, both as of the date on which the Registration Statement
became effective and as of the Closing Date and each Option Closing Date,
as the case may be, either the Registration Statement, or any amendment or
supplement thereto, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or the Prospectus, or any amendment or supplement thereto, contained or
contains any untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading (except that no opinion need be expressed as to
financial statements, financial statement notes and other financial and
statistical data contained in the Registration Statement or the Prospectus).
(c) The Underwriters shall have received an opinion, in form and
substance reasonably satisfactory to the Underwriters, dated the Closing
Date and each Option Closing Date, as the case may be, and addressed to the
Underwriters, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters,
with respect to the sufficiency of certain corporate proceedings and other
legal matters relating to this Agreement and the Securities and such other
related matters as the Representatives may reasonably require. In
rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx shall have received, in
form and substance satisfactory to such counsel, and may rely upon, such
certificates and other documents and information as they may reasonably
request to pass upon such matters.
(d) The Underwriters shall have received from each of KPMG Peat
Marwick LLP and Deloitte & Touche, LLP a letter dated the date hereof and
the Closing Date and each Option Closing Date, as the case may be, and
addressed to the Underwriters, in substantially the form previously
approved by the Representatives and in form and substance reasonably
satisfactory to the Representatives and Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Underwriters.
(e) The representations and warranties of the Company contained in
this Agreement shall be true and correct
24
in all material respects on and as of the date hereof and on and as of the
Closing Date and each Option Closing Date, as the case may be, as if made
on and as of such date; the statements of the Company's officers made
pursuant to any certificate delivered in accordance with the provisions
hereof shall be true and correct in all material respects on and as of the
date made and on and as of the Closing Date and each Option Closing Date,
as the case may be; the Company shall have complied in all material respects
with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date and each Option
Closing Date, as the case may be; and subsequent to the date of the most
recent financial statements in the Prospectus, there shall have been no
Material Adverse Change or any development involving a prospective Material
Adverse Change.
(f) The sale of the Securities by the Company hereunder shall not be
enjoined (temporarily or permanently) on the Closing Date or any Option
Closing Date, as the case may be.
(g) Subsequent to the respective dates as of which information is
given in the Prospectus, except in each case as described in the
Prospectus, none of the Company, the Subsidiaries, Xxxxxxx or any Xxxxxxx
Subsidiary shall have incurred any liabilities or obligations, direct or
contingent (other than in the ordinary course of business), that are
material either (x) the Company and the Subsidiaries, taken as a whole, or
(y) after giving effect to the Acquisition, the Company, the Subsidiaries,
Xxxxxxx and the Xxxxxxx Subsidiaries, taken as a whole, or entered into any
transactions not in the ordinary course of business that are material
either (x) the Company and the Subsidiaries, taken as a whole, or (y) after
giving effect to the Acquisition, the Company, the Subsidiaries, Xxxxxxx
and the Xxxxxxx Subsidiaries, taken as a whole, and there shall not have
been any adverse change in the capital stock or long-term indebtedness of
the Company and its Subsidiaries that is material either (x) the Company
and the Subsidiaries, taken as a whole, or (y) after giving effect to the
Acquisition, the Company, the Subsidiaries, Xxxxxxx and the Xxxxxxx
Subsidiaries, taken as a whole.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the conduct of the
business and operations of each of the Company, its Subsidiaries, Xxxxxxx
and each of
25
the Xxxxxxx Subsidiaries shall not have been interfered with by strike,
fire, flood, hurricane, accident or other calamity (whether or not insured)
or by any court or governmental action, order or decree, and, except as
otherwise stated therein, the properties of each of the Company, its
Subsidiaries, Xxxxxxx and each of the Xxxxxxx Subsidiaries shall not have
sustained any loss or damage (whether or not insured) as a result of any
such occurrence, except any such interference, loss or damage that would
not have a Material Adverse Effect.
(i) The Underwriters shall have received certificates, in form and
substance reasonably satisfactory to the Underwriters and Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Underwriters, dated the Closing Date and each
Option Closing Date, as the case may be, and addressed to the
Underwriters, of the Company, executed by its chief executive officer or
president and the chief financial officer or chief accounting officer, to
the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects as if made on
and as of the Closing Date and each Option Closing Date, as the case
may be, and the Company has performed in all material respects all
covenants and agreements and satisfied all conditions to be performed
or satisfied at or prior to the Closing Date and each Option Closing
Date, as the case may be;
(ii) No stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and,
to the best of such officers' knowledge, no proceedings for those
purposes have been instituted or threatened or are contemplated by the
Commission;
(iii) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the
Company, the Subsidiaries, Xxxxxxx and the Xxxxxxx Subsidiaries have
not sustained any material loss or interference with their respective
businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding and there has not been
any material change in the capital stock, long-term debt, obligations
under capital
26
leases or short-term borrowings or other agreements or instruments
relating to the ownership of the property of the Company, the
Subsidiaries, Xxxxxxx and the Xxxxxxx Subsidiaries or any Material
Adverse Change, or any development involving a prospective Material
Adverse Change, except in each case as described in or contemplated
by the Prospectus; and
(iv) To the best of such officers' knowledge and belief, the
sale of the Securities by the Company has not been enjoined
(temporarily or permanently).
(j) The Company shall have furnished to you "lock-up" letters, in
form and substance satisfactory to you, signed by the directors and
executive officers of the Company, prohibiting such persons from offering,
selling, contracting to sell or otherwise disposing, directly or
indirectly, of any shares of Common Stock or any interests therein, or any
securities convertible into, or exchangeable for, shares of Common Stock or
rights to acquire the same, during the Lock-up Period, without the prior
written consent of the Representatives.
(k) The Acquisition Agreement shall be in full force and effect and
there shall have been no amendment, modification or waiver of the
Acquisition Agreement of which the Representatives shall not have been
aware or to which they shall have reasonably objected.
On or before the Closing Date and each Option Closing Date, as the
case may be, the Underwriters and Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Underwriters, shall have received such further documents, opinions,
certificates and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and each of its
Subsidiaries as they shall have heretofore reasonably requested.
All such opinions, certificates, letters, schedules, documents or
instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all respects to
the Underwriters and Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters.
The Company and each of its Subsidiaries shall furnish to the Underwriters
such conformed copies of such opinions, certificates, letters, schedules,
documents and instruments in such quantities as the Underwriters shall
reasonably request.
27
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter
or such controlling person may become subject under the Act, the Exchange Act
or otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in (A) the Registration Statement or any amendment thereto
or any Preliminary Prospectus or the Prospectus or any amendments or
supplements thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the securities or
"Blue Sky" laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"); or
(ii) the omission or alleged omission to state in such Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any Application, a
material fact required to be stated therein or necessary to make the
statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any reasonable legal or other out-of-pocket expenses reasonably
incurred by any such Underwriter or any such controlling person in connection
with investigating or defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action in
respect thereof; provided that the Company will not be liable in any such
case to the extent, but only to the extent, that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement or any amendment thereto, any Preliminary Prospectus
or the Prospectus or any amendments or supplements thereto, or any
Application in reliance upon and in conformity with written information
furnished to the Company by the Underwriters through the Representatives with
respect to the Underwriters specifically
28
for use therein; provided, further, that the Company will not be liable to
any Underwriter if such untrue statement or omission or alleged untrue
statement or omission was contained or made in any Preliminary Prospectus and
completely corrected in the Prospectus and any such loss, liability, claim,
damage or expense suffered or incurred by any Underwriter resulted from any
action, claim or suit by any person who purchased Securities that are the
subject thereof from any Underwriter and such Underwriter failed to deliver
or provide a copy of the Prospectus relating to the Securities to such person
with or prior to the confirmation of the sale of such Securities sold to such
person in any case where delivery is required by the Act or the Rules and
Regulations, unless such failure to deliver or provide a copy of the
Prospectus relating to the Securities was a result of noncompliance by the
Company with Section 5(e)(ii) of this Agreement. This indemnity agreement
will be in addition to any liability that the Company may otherwise have to
the indemnified parties. The Company shall not be liable under this Section
8 for any settlement of any claim or action effected without its consent,
which shall not be unreasonably withheld.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors and 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 Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which the Company, or
any such director, officer or controlling person may become subject under the
Act, the Exchange Act, or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein; and, subject to the limitation
set forth immediately preceding this clause, will reimburse, as incurred, any
legal or other expenses incurred by the Company or any such director, officer
or controlling person in connection with
29
investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. This indemnity agreement will be in addition to any liability that
the Underwriters may otherwise have to the indemnified parties. No
Underwriter shall be liable under this Section 8 for any settlement of any
claim or action effected without its consent, which shall not be unreasonably
withheld.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action for which such indemnified party
is entitled to indemnification under this Section 8, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof, but the omission so to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it and/or
other indemnified parties that are different from or additional to those
available to the indemnifying party, then the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof and
approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall
have employed separate counsel in accordance with the proviso to the
immediately preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to local counsel)
in any one action or separate but substantially similar
30
actions in the same jurisdiction arising out of the same general allegations
or circumstances, designated by any Underwriter in the case of paragraph (a)
of this Section 8 or the Company, in the case of paragraph (b) of this
Section 8, representing the indemnified parties under such paragraph (a) or
paragraph (b), as the case may be, who are parties to such action or
actions), (ii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party or
(iii) the indemnifying party shall have failed to assume the defense or
retain counsel reasonably satisfactory to the indemnified party. After such
notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the
consent of the indemnifying party, which consent shall not be unreasonably
withheld.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is for any reason unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as (x) the total proceeds from the offering (net of underwriter's
discounts and commissions but before deducting expenses) received by the Company
and (y) the total underwriting discounts and commissions received by the
Underwriters, respectively, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by an indemnified party or parties
on the one
31
hand, or the indemnifying party or parties on the other, the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Company on the
one hand and the Underwriters on the other hand were treated as one entity
for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to in the first sentence
of this paragraph (d). Notwithstanding any other provision of this paragraph
(d), no Underwriter shall be obligated to make contributions hereunder that
in the aggregate exceed the total underwriting discounts and commissions
received by such Underwriter under this Agreement, less the aggregate amount
of any damages that such Underwriter has otherwise paid or been required to
pay by reason of the untrue or alleged untrue statements or the omissions or
alleged omissions to state a material fact, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each
person, if any, who controls an Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, and 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 Act
or Section 20 of the Exchange Act, shall have the same rights to contribution
as the Company.
9. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, the
Company's officers, and the Underwriters set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by
or on behalf of the Company or any of its officers or directors, the
Underwriters or any controlling person referred to in Section 8 hereof and
(ii) delivery of and payment for the Securities. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6 and 8
hereof shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement.
32
10. Termination.
(a) This Agreement may be terminated in the sole discretion of the
Representatives by notice to the Company, given prior to the Closing Date or
Option Closing Date, as the case may be, in the event that the Company shall
have failed, refused or become unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing Date or Option Closing Date, as the
case may be:
(i) the Company, the Subsidiaries, Xxxxxxx or the Xxxxxxx
Subsidiaries shall have sustained any loss or interference with respect
to its businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any strike,
labor dispute, slow down or work stoppage or any legal or governmental
proceeding, which loss or interference, in the sole judgment of the
Underwriters, has had or has a Material Adverse Effect, or there shall have
been, in the sole judgment of the Underwriters, any event or development
that, individually or in the aggregate, has or could be reasonably likely
to have a Material Adverse Effect (including without limitation a change in
control of the Company or any of its Subsidiaries), except in each case as
described in the Prospectus (exclusive of any amendment or supplement
thereto after the date hereof);
(ii) trading in securities of the Company or in securities generally
on the New York Stock Exchange shall have been suspended or minimum or
maximum prices shall have been established on the New York Stock Exchange;
(iii) a banking moratorium shall have been declared by New York or
United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an outbreak
or escalation of any other insurrection or armed conflict involving the
United States or any other national or international calamity or emergency
or (C) any material change in the financial markets of the United States
which, in the sole judgment of the Representatives, makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement, as amended as of
the date hereof.
33
(b) Termination of this Agreement pursuant to this Section 10 shall be
without liability of any party to any other party except as provided in
Section 9 hereof.
11. Increase in Underwriters' Commitments. If any Underwriter shall
default in its obligation to take up and pay for the Securities to be
purchased by it hereunder on the Closing Date or any Option Closing Date and
if the amount of Securities that all Underwriters so defaulting shall have
agreed but failed to take up and pay for does not exceed 10% of the total
number of Securities that the Underwriters are obligated to purchase on the
Closing Date or Option Closing Date, as the case may be, the non-defaulting
Underwriters shall take up and pay for (in addition to the Securities they
are obligated to purchase pursuant to Section 1 hereof) the number of
Securities agreed to be purchased by all such defaulting Underwriters on the
Closing Date or Option Closing Date, as the case may be, as hereinafter
provided. Such Securities shall be taken up and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you
may designate with the consent of each Underwriter so designated or, in the
event no such designation is made, such Securities shall be taken up and paid
for by all non-defaulting Underwriters pro rata in proportion to the
aggregate amount of Securities set opposite the names of such non-defaulting
Underwriters in Schedule I.
If a new allocation is made in accordance with the foregoing provision,
you shall have the right to postpone the Closing Date or Option Closing Date,
as the case may be, for a period not exceeding five business days in order
that any necessary changes in the Registration Statement and Prospectus and
other documents may be effected.
The term Underwriter as used in this agreement shall refer to and
include any Underwriter substituted under this Section 11 with like effect as
if such substituted Underwriter had originally been named in Schedule I.
If the amount of Securities that all Underwriters so defaulting shall
have agreed but failed to take up and pay for exceeds 10% of the total number
of Securities that the Underwriters are obligated to purchase on the Closing
Date or Option Closing Date, as the case may be, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter
(provided that if such default occurs with respect to Additional Securities
after the Closing Date, this Agreement will not terminate as to the Firm
Securities).
34
12. Information Supplied by the Underwriters
The statements set forth in the last paragraph on the front cover page
of the Prospectus relating to the Securities and paragraph four under the
heading "Underwriting" in the Prospectus relating to the Securities (to the
extent such statements relate to the Underwriters) constitute the only
information furnished by the Underwriters to the Company for the purposes of
Sections 2(b), 8(a) and 8(b) hereof. Each Underwriter confirms that such
statements, to the extent such statements relate to each such Underwriter,
are correct in all material respects.
13. Notices. All communications hereunder shall be in writing and, if
sent to the Underwriters, shall be mailed or delivered or telecopied and
confirmed in writing to the Representatives in care of BT Alex. Xxxxx
Incorporated, One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Finance Department, and if sent to the Company,
shall be mailed, delivered or telegraphed and confirmed in writing to
Fibermark at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000, Attention: Xxxxx
Xxxxx.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained. This Agreement and all
conditions and provisions hereof are intended to be and are for the sole and
exclusive benefit of such persons and for the benefit of no other person
except that (i) the indemnities of the Company contained in Section 8 of this
Agreement shall also be for the benefit of any person or persons who control
the Underwriters within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and (ii) the indemnities of the Underwriters contained in
Section 8 of this Agreement shall also be for the benefit of the directors of
the Company, the Company's officers who have signed the Registration
Statement, and any person or persons who control the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Securities from the Underwriters will be deemed a successor
because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH
35
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY PROVISIONS
RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
36
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between
the Company and the Underwriters.
Very truly yours,
FIBERMARK, INC.
By: _____________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BT ALEX. XXXXX INCORPORATED
PAINEWEBBER INCORPORATED
Acting on behalf of themselves and as
the Representatives of the several
Underwriters named in Schedule II hereto.
By BT ALEX. XXXXX INCORPORATED
By ____________________________
Name:
Title:
SCHEDULE I
Number of
Shares to
Underwriter Be Purchased
----------- ------------
BT Alex. Xxxxx Incorporated.....................
PaineWebber Incorporated........................
Total Underwriters 1,500,000
