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1,400,000 Shares
XXXXXXXX-ALCO STORES, INC.
Common Stock
$.0001 Par Value
PURCHASE AGREEMENT
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October --, 1996
XXXXX XXXXXXX INC.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
c/o Xxxxx Xxxxxxx Inc.
Xxxxx Xxxxxxx Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies/Gentlemen:
Xxxxxxxx-ALCO Stores, Inc., a Kansas corporation (the
"Company") proposes to issue and sell to you, as underwriters (the
"Underwriters"), 1,000,000 shares of the Company's Common Stock,
par value $.0001 per share (the "Common Stock"), and the
stockholders of the Company listed on Schedule II hereto (the
"Selling Stockholders") severally propose to sell to the
Underwriters the respective number of shares of Common Stock set
forth on Schedule II, which represents a total of 400,000 shares of
Common Stock (the "Offering"), pursuant to the terms of this
Agreement. The 1,400,000 shares of Common Stock to be sold by the
Company and the Selling Stockholders are herein called the "Firm
Shares." Solely for the purpose of covering over-allotments in the
sale of the Firm Shares, the Company has also granted to the
several Underwriters an option to purchase up to an additional
210,000 shares of Common Stock (the "Option Shares"). The Firm
Shares and any Option Shares purchased pursuant to this Purchase
Agreement are herein collectively referred to as the "Securities."
The Company and the Selling Stockholders hereby confirm
their agreement with respect to the sale of the Securities to the
Underwriters.
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Plus an option to purchase up to 210,000 additional shares
to cover over-allotments.
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1. REGISTRATION STATEMENT. The Company hereby confirms
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that a registration statement on Form S-1 (File No. 333-12081) with
respect to the Securities, including a preliminary form of
prospectus, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "1933
Act"), and the rules and regulations ("1933 Act Regulations") of
the Securities and Exchange Commission (the "Commission")
thereunder and has been filed with the Commission; one or more
amendments to such registration statement have also been so
prepared and have been, or will be, so filed. Copies of such
registration statement and amendments thereto and the exhibits,
financial statements and schedules to such registration statement
and each related preliminary prospectus have been delivered to you
by the Company.
After the execution of this Agreement, the Company will
file with the Commission (A) if such registration statement, as it
may have been amended, has been declared by the Commission to be
effective under the 1933 Act, a prospectus in the form most
recently included in an amendment to such registration statement
(or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are
required by Rule 430A of the 1933 Act Regulations ("Rule 430A") or
permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by the
Underwriters prior to (or as are agreed to by the Underwriters
subsequent to) the execution of this Agreement, or (B) if such
registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the 1933 Act, an
amendment to such registration statement, including a form of final
prospectus, necessary to permit such registration statement to
become effective, a copy of which amendment has been furnished to
and not objected to by the Underwriters prior to (or is agreed to
by the Underwriters subsequent to) the execution of this Agreement.
The Company will not file any amendment to the registration
statement or any amended Preliminary Prospectus (as defined below)
or any amendment thereto, of which you have not been previously
furnished a copy or to which you or counsel for the Underwriters
shall reasonably object. 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 under the
1933 Act, including (1) all financial schedules and exhibits
thereto and (2) any information omitted therefrom pursuant to Rule
430A and included in the Prospectus (as defined below); the term
"Preliminary Prospectus" means any preliminary prospectus included
in the Registration Statement prior to the time it becomes or
became effective under the 1933 Act and any prospectus subject to
completion as described in Rule 430A filed with such Registration
Statement; and the term "Prospectus" means the prospectus first
filed with the Commission pursuant to Rule 424(b)(1) or (4) or, if
no prospectus is required to be filed pursuant to Rule 424(b)(1) or
(4), the prospectus included in the Registration Statement. Under
this Section 1, if the Prospectus is not yet in existence,
references to "Prospectus" shall mean the most recent Preliminary
Prospectus. The date on which the Registration Statement becomes
effective is hereinafter referred to as the "Effective Date."
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
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SELLING STOCKHOLDERS.
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(a) The Company represents and warrants to, and agrees
with, each of the Underwriters, as of the date hereof, the Closing
Date and, if applicable, the Option Closing Date that:
(i) No order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus has been issued
by the Commission, nor has the Commission, to the knowledge of
the Company, threatened to issue such an order or instituted
proceedings for that purpose. Each Preliminary Prospectus, at
the time of filing thereof, (A) contained all statements
required to be stated therein in accordance with the 1933 Act
and the 1933 Act Regulations, (B) complied in all material
respects with the requirements of the 1933 Act and the 1933
Act Regulations and (C) did not contain an untrue statement of
a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading; provided, however, that this representation
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and warranty does not apply to information, statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any of you
expressly for inclusion in the Prospectus beneath the heading
"Underwriting" (such information referred to herein as the
"Underwriters' Information") or by any Selling Stockholder
expressly for inclusion in the Prospectus (such information
referred to herein as the "Selling Stockholders'
Information").
(ii) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date and,
if applicable, the Option Closing Date, the Registration
Statement and any post-effective amendment thereto
(A) contained and will contain all statements which are
required to be stated therein in accordance with the 1933 Act
and the 1933 Act Regulations, (B) complied and will comply in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and (C) 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. At
the Effective Date and at all times when the Prospectus is
required to be delivered in connection with offers and sales
of Securities, including, without limitation, the Closing Date
(and, if applicable, the Option Closing Date), the Prospectus,
as amended or supplemented, (A) contained and will contain all
statements which are required to be stated therein in
accordance with the 1933 Act and the 1933 Act Regulations,
(B) complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and
(C) did not contain and will not contain an untrue statement
of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this
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representation and warranty does not apply to Underwriters'
Information or the Selling Stockholders' Information.
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(iii) The Company is duly organized, validly existing
and in good standing under the laws of the State of Kansas,
with full corporate and other power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement and the Prospectus and
as currently being conducted.
(iv) Each of the Company and the Subsidiary, as
defined below, is duly qualified to transact business as a
foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property or conducts
its business so as to require such qualification. All of the
issued and outstanding shares of capital stock of the
Subsidiary (A) are duly authorized and validly issued, fully
paid and nonassessable, (B) have been issued in compliance
with all applicable federal and state securities laws and
(C) except as disclosed in the Prospectus, are directly owned
by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting
or transfer, preemptive rights, claim or equity. Except as
disclosed in the Prospectus, there are no outstanding rights,
warrants or options to acquire or instruments convertible into
or exchangeable for any capital stock of the Subsidiary.
(v) The Company's only subsidiary is SPD Truck
Line, Inc., a Kansas corporation (the "Subsidiary"). The
Company does not own or control, directly or indirectly, more
than 5% of any class of equity security of any corporation,
association or other entity other than the Subsidiary. The
Subsidiary is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Kansas. The Subsidiary has full corporate and other power and
authority to own, lease and operate its properties and to
conduct its business as described in and contemplated by the
Registration Statement and the Prospectus and as currently
being conducted.
(vi) The capital stock of the Company conforms to
the description thereof contained in the Prospectus. The
outstanding shares of capital stock of the Company, including
the outstanding Common Stock, (A) are duly authorized, validly
issued, fully paid and nonassessable, (B) have been issued in
compliance with all applicable federal and state securities
laws, and (C) were not issued in violation of preemptive or
similar rights of any security holder of the Company. No
person has any preemptive or similar right to purchase any
shares of capital stock of the Company. Except as disclosed
in the Prospectus, there are no outstanding rights, options or
warrants to acquire any securities of the Company, and there
are no outstanding securities convertible into or exchangeable
for any such securities, and no restrictions upon the voting
or transfer of any capital stock of the Company pursuant to
the Company's corporate charter or by-laws or any agreement or
other instrument to which the Company is a party or by which
it is bound.
(vii) The Company has all requisite power and
authority to issue, sell and deliver the Firm Shares and
Option Shares it has agreed to sell hereunder in accordance
with and upon the terms and conditions set forth in this
Agreement and in the Registration Statement and the
Prospectus. All corporate action required to be taken by the
Company for the authorization, issuance, sale and delivery of
such Firm Shares and
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Option Shares has been validly and sufficiently taken. Such Firm Shares
and Option Shares, when delivered and paid for in accordance with this
Agreement, will be duly and validly issued and outstanding, fully paid
and nonassessable and will not be issued in violation of or
subject to any preemptive or similar rights. None of such
Firm Shares and Option Shares, immediately prior to delivery,
will be subject to any security interest, lien, mortgage,
pledge, encumbrance, restriction upon voting or transfer,
preemptive rights, claim, equity, legend or other defect.
(viii) The Company and the Subsidiary have complied in
all material respects with all federal, state and local
statutes, regulations, ordinances and rules applicable to the
ownership and operation of their properties or the conduct of
their businesses as described in and contemplated by the
Registration Statement and the Prospectus and as currently
being conducted.
(ix) The Company and the Subsidiary have all such
permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all
appropriate federal, state, local or other public authorities
("Permits") as are necessary to own and lease their properties
and conduct their businesses in all material respects in the
manner described in the Registration Statement and the
Prospectus and as currently being conducted. All such Permits
are in full force and effect and each of the Company and the
Subsidiary has fulfilled and performed all of its respective
material obligations with respect to such Permits, and no
event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or will
result in any other material impairment of the rights of the
holder of any such Permit, subject in each case to such
qualification as may be disclosed in the Prospectus. Such
Permits contain no restrictions that would materially impair
the ability of the Company or the Subsidiary to conduct their
businesses in the manner consistent with their past practices.
Neither the Company nor the Subsidiary has received notice or
otherwise has knowledge of any proceeding or action relating
to the revocation or modification of any such Permit.
(x) Neither the Company nor the Subsidiary is in
breach or violation of its corporate charter, by-laws or other
governing documents. Neither the Company nor the Subsidiary
is, and to the knowledge of the Company no other party is, in
violation, breach or default (with or without notice or lapse
of time or both) in the performance or observance of any
material (individually or in the aggregate) term, covenant,
agreement, obligation, representation, warranty or condition
contained in (A) any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise,
license, Permit or any other agreement or instrument to which
it is a party or by which it or any of its properties is
bound, and to its knowledge, no other party has asserted that
the Company or the Subsidiary is in such violation, breach or
default, or (B) except as disclosed in the Prospectus, any
order, decree, judgment, rule or regulation of any court,
arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over
the Company or the Subsidiary or any of their respective
properties.
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(xi) The execution, delivery and performance of this
Agreement and the consummation of the transactions
contemplated herein, in the Registration Statement and in the
Prospectus do not and will not conflict with, result in the
creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the
Company or the Subsidiary or the Securities pursuant to,
constitute a material breach or violation of, or constitute a
material default under, with or without notice or lapse of
time or both, any of the terms, provisions or conditions of
the charter or by-laws of the Company or the Subsidiary, any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any
other agreement or instrument to which the Company or the
Subsidiary is a party or by which either of them or any of
their respective properties is bound or any order, decree,
judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Company or
the Subsidiary or any of their respective properties. No
authorization, approval, consent or order of, or filing,
registration or qualification with, any person (including,
without limitation, any court, governmental body or authority)
is required in connection with the transactions contemplated
by this Agreement, the Registration Statement and the
Prospectus, except such as required by the National
Association of Securities Dealers, Inc. ("NASD"), or under the
1933 Act and 1933 Act Regulations, and such as may be required
under state securities laws in connection with the purchase
and distribution of the Securities by the Underwriters.
(xii) The Company has all requisite corporate power
and authority to enter into this Agreement and this Agreement
has been duly and validly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding
agreement of the Company, enforceable in accordance with its
terms (except to the extent the enforceability of the
indemnification, exculpation and contribution provisions of
Section 6 hereof may be limited by applicable law and except
as enforceability of this Agreement may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws affecting creditors' rights
generally and by general principles of equity, regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
(xiii) Each of the Solicitation Documents, as defined
herein, (A) has been received by Boatmen's Trust Company (the
"Custodian") and (B) has been fully executed and completed by
all the Selling Stockholders. For purposes of this Agreement,
"Solicitation Documents" with respect to any Selling
Stockholder shall mean the following documents which are
necessary to properly sell and deliver the Selling
Stockholders' Securities in accordance with and upon the terms
and conditions set forth in this Agreement and the
Registration Statement and the Prospectus: the Lock-Up
Agreement, the Custody Agreement and Power of Attorney and any
extensions or amendments thereof.
(xiv) The Company and the Subsidiary have good and
marketable title in fee simple to all real property and good
title to all material personal property owned
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by them, in each case free and clear of all security interests,
liens, mortgages, pledges, encumbrances, restrictions, claims,
equities and other defects except such as are referred to in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made or proposed to be
made of such property; and all the leases under which the Company
or the Subsidiary holds real or material personal property are
valid, existing and enforceable leases and in full force and
effect with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such real
or personal property, and neither the Company nor the Subsidiary
is in default in any material respect of any of the terms or
provisions of any leases.
(xv) KPMG Peat Marwick LLP, who have certified the
consolidated financial statements of the Company and the
Subsidiary, including the notes thereto, included in the
Registration Statement and Prospectus, are independent public
accountants with respect to the Company and the Subsidiary, as
required by the 1933 Act and the 1933 Act Regulations.
(xvi) The consolidated financial statements,
including the notes thereto, included in the Registration
Statement and the Prospectus with respect to the Company and
the Subsidiary comply in all material respects with the 1933
Act and the 1933 Act Regulations and present fairly the
consolidated financial position of the Company and the
Subsidiary as of the dates indicated and the consolidated
results of operations, cash flows and stockholders' equity of
the Company and the Subsidiary for the periods specified and
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The
selected and summary consolidated financial data concerning
the Company and the Subsidiary included in the Registration
Statement and the Prospectus comply in all material respects
with the 1933 Act and the 1933 Act Regulations, present fairly
the information set forth therein, and have been compiled on
a basis consistent with that of the consolidated financial
statements of the Company and the Subsidiary in the
Registration Statement and the Prospectus. No other financial
statements or schedules are required to be included in the
Registration Statement or Prospectus. The other financial,
statistical and numerical information included in the
Registration Statement and the Prospectus comply in all
material respects with the 1933 Act and the 1933 Act
Regulations, present fairly the information shown therein, and
to the extent applicable have been compiled on a basis
consistent with the consolidated financial statements of the
Company and the Subsidiary included in the Registration
Statement and the Prospectus.
(xvii) The Company maintains a system of internal
accounting controls sufficient to provide reasonable
assurances that (1) transactions are executed in accordance
with management's general or specific authorization;
(2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (3) access to assets is permitted
only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets
is compared with
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existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(xviii) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein:
(A) neither the Company nor the Subsidiary has
sustained any material (individually or in the aggregate)
loss or interference with its business from fire,
explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court
or governmental action, order or decree which is material
to the condition (financial or otherwise), earnings,
business or results of operations of the Company and the
Subsidiary on a consolidated basis;
(B) there has not been any material adverse change
in, or any development which is reasonably likely to have
a material adverse effect on, the condition (financial or
otherwise), earnings, business or results of operations
of the Company and the Subsidiary on a consolidated
basis, whether or not arising in the ordinary course of
business;
(C) neither the Company nor the Subsidiary has
incurred any liabilities or obligations, direct or
contingent, or entered into any material transactions,
other than in the ordinary course of business, which is
material to the condition (financial or otherwise),
earnings, business or results of operations of the
Company and the Subsidiary on a consolidated basis;
(D) the Company has not declared or paid any
dividend, and neither the Company nor the Subsidiary has
become delinquent in the payment of principal or interest
on any outstanding borrowings; and
(E) there has not been any change in the capital
stock, long-term debt, obligations under capital leases
or, other than in the ordinary course of business, short-
term borrowings of the Company or the Subsidiary.
(xix) Except as set forth in the Registration
Statement and the Prospectus, no charge, investigation,
action, suit or proceeding is pending or, to the knowledge of
the Company, threatened, against or affecting the Company or
the Subsidiary or any of their respective properties before or
by any court or any regulatory, administrative or governmental
official, commission, board, agency or other authority or
body, or any arbitrator, wherein an unfavorable decision,
ruling or finding could have a material adverse effect on the
consummation of this Agreement or the transactions
contemplated herein or the condition (financial or otherwise),
earnings, affairs, business or results of operations of the
Company and the Subsidiary on a consolidated basis or which is
required to be disclosed in the Registration Statement or the
Prospectus and is not so disclosed.
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(xx) There are no contracts or other documents
required to be filed as exhibits to the Registration Statement
by the 1933 Act or the 1933 Act Regulations which have not
been filed as exhibits to the Registration Statement, or that
are required to be summarized in the Prospectus that are not
so summarized.
(xxi) The Company has not taken, directly or
indirectly, any action designed to result in or which has
constituted or which 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
the Securities, and the Company is not aware of any such
action taken or to be taken by any affiliate of the Company;
the Company has not effected any sales of Common Stock which
are required to be disclosed in response to Item 701 of
Regulation S-K under the 1933 Act which have not been so
disclosed in the Registration Statement.
(xxii) The Company and the Subsidiary own, or possess
adequate rights to use, material patents, copyrights,
trademarks, service marks, trade names, licenses, inventions
and other material rights necessary to conduct the businesses
now conducted by them or as described in the Prospectus and
neither the Company nor the Subsidiary has received any notice
of infringement or conflict with asserted rights of others
with respect to any material patents, copyrights, trademarks,
service marks, trade names, licenses, inventions or other
material rights which, individually or in the aggregate, if
the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business or
results of operations of the Company and the Subsidiary on a
consolidated basis, and the Company does not know of any basis
for any such infringement or conflict; provided, however, the
Company owns or possesses the rights necessary to use the
trade names "Xxxxxxxx" and "ALCO" in conducting the businesses
now being conducted by it.
(xxiii) Except as disclosed in the Prospectus, no labor
dispute involving the Company or the Subsidiary exists or, to
the knowledge of the Company, is threatened which might be
expected to have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business or
results of operations of the Company and the Subsidiary on a
consolidated basis or which is required to be disclosed in the
Prospectus. Neither the Company nor the Subsidiary has
received written notice of any existing or threatened labor
dispute by the employees of any of its principal suppliers,
customers or contractors which might be expected to have a
material adverse effect on the condition (financial or
otherwise), earnings, affairs, business or results of
operations of the Company and the Subsidiary on a consolidated
basis.
(xxiv) The Company and the Subsidiary have timely and
properly prepared and filed all necessary federal, state,
local and foreign tax returns which are required to be filed
and have paid all taxes shown as due thereon and have paid all
other taxes and assessments to the extent that the same shall
have become due, except such as are being contested in good
faith or where the failure to so timely and properly prepare
and file would not have a material adverse effect on the
condition (financial or
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otherwise), earnings, affairs, business or results of operations of the
Company and the Subsidiary on a consolidated basis. The Company has no
knowledge of any tax deficiency which has been or might be assessed
against the Company or the Subsidiary which, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business or results of operations of the Company and the Subsidiary on a
consolidated basis.
(xxv) Each of the material contracts, agreements and
instruments described or referred to in the Registration
Statement or the Prospectus and each contract, agreement and
instrument filed as an exhibit to the Registration Statement
is in full force and effect and is the legal, valid and
binding agreement of the Company or the Subsidiary,
enforceable in accordance with its terms, except as the
enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally. Except as disclosed in
the Prospectus, to the knowledge of the Company, no other
party to any such agreement is (with or without notice or
lapse of time or both) in breach or default in any material
respect thereunder.
(xxvi) No relationship, direct or indirect, exists
between or among the Company or the Subsidiary, on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Company or the Subsidiary, on the other hand,
which is required to be described in the Registration
Statement and the Prospectus which is not described therein.
(xxvii) No person has the right to request or require
the Company or the Subsidiary to register any securities for
offering and sale under the 1933 Act by reason of the filing
of the Registration Statement with the Commission or the
issuance and sale of the Securities except as disclosed in the
Registration Statement and the Prospectus.
(xxviii) The Common Stock is registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "1934 Act") and is approved for quotation on the
Nasdaq National Market System ("NNM") under the symbol "DUCK".
The Company has taken no action that was designed to
terminate, or that is likely to have the effect of
terminating, quotation of its Common Stock on the NNM, nor has
the Company received any notification that the Commission or
the NNM is contemplating the termination of such quotation.
The Company has filed an appropriate additional listing
application for the listing of the Securities on the NNM.
(xxix) Other than as contemplated by this Agreement,
the Company has not incurred any liability for any finder's or
broker's fee or agent's commission in connection with the
execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(xxx) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
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(xxxi) Neither the Company nor any of its affiliates
is presently doing business with the government of Cuba or
with any person or affiliate located in Cuba.
(xxxii) The Company has not distributed and will not
distribute prior to the Closing Date any offering material in
connection with the Offering, other than a Preliminary
Prospectus, the Prospectus, the Registration Statement and the
other materials permitted by the 1933 Act and the 1933 Act
Regulations and reviewed by the Underwriters.
(b) Each Selling Stockholder represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) Such Selling Stockholder has caused to be
executed and delivered on such Selling Stockholder's behalf
(with such extensions or amendments as may be necessary to
properly effect the transactions contemplated in this Purchase
Agreement) (A) a Custody Agreement appointing Boatmen's Trust
Company as such Selling Stockholder's Custodian with authority
to deliver on behalf of such Selling Stockholder certificates
representing the Securities to be sold by the Selling
Stockholder pursuant to this Agreement, and (B) a Power of
Attorney (the "Power of Attorney") appointing Xxxx X. Xxxxx,
Xxxxxxx X. Xxxxxx, and Xxxxxx X. Xxxxxx, and each of them,
as attorney-in-fact ("Attorney-in-Fact") with full power and
authority to execute and deliver this Agreement on behalf of
such Selling Stockholder, to authorize the delivery of the
Securities to be sold by such Selling Stockholder hereunder
and to otherwise act on behalf of said Selling Stockholder in
connection with the transactions contemplated by this
Agreement. Pursuant to the Power of Attorney and Custody
Agreement, such certificates in negotiable form, endorsed in
blank or accompanied by blank stock powers duly executed,
representing the Securities to be sold by such Selling
Stockholder hereunder have been deposited with the Custodian
for the purpose of delivery pursuant to this Agreement. Such
Selling Stockholder has full legal right, power and authority
to execute the Power of Attorney, to enter into this Agreement
and the Custody Agreement, and to sell, assign, transfer and
deliver to the Underwriters the Securities to be sold by such
Selling Stockholder hereunder. Such Selling Stockholder
agrees that each of the shares of Common Stock represented by
the certificates on deposit with the Custodian is subject to
the interests of the Underwriters hereunder, that the
arrangements made for such custody, the appointment of the
Custodian and the right, power and authority of the Custodian
to deliver, in accordance with the terms of the Custody
Agreement, the Securities to be sold by such Selling
Stockholder to the Underwriters, are to that extent
irrevocable and that the obligations of the Selling
Stockholder hereunder shall not be terminated, except as
expressly provided in this Agreement or the Custody Agreement,
by any act of such Selling Stockholder, by operation of law,
or upon the occurrence of any event whatsoever, including the
liquidation, merger (where not a surviving party),
dissolution, bankruptcy or termination of any Selling
Stockholder. If the Selling Stockholder should liquidate,
merge (where not a surviving party), dissolve, become bankrupt
or terminate or if any other event should occur, before
delivery of the Securities hereunder, the certificates
representing the Securities to be sold by the Selling
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Stockholder hereunder and other documents then on deposit with
the Custodian shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as
if such liquidation, merger (where not a surviving party),
dissolution, termination or bankruptcy or other event had not
occurred, regardless of whether or not the Custodian or the
Attorney-in-Fact shall have received notice thereof. This
Agreement, the Power of Attorney and the Custody Agreement
have been duly executed and delivered by or on behalf of such
Selling Stockholder in the forms heretofore delivered to you.
(ii) Such Selling Stockholder has, and on the
Closing Date will have, good and marketable title to the
Securities to be sold by the Selling Stockholder hereunder and
full right, power and authority to enter into this Agreement
and to sell, assign, transfer and deliver such Securities,
free and clear of all voting trust arrangements, security
interests, liens, mortgages, pledges, encumbrances,
restrictions, preemptive rights, claims, equities, proxies,
restrictions on transferability, legends and other defects;
and upon delivery of and payment for such Securities as
provided in this Agreement, good and marketable title thereto,
free and clear of all voting trust arrangements, security
interests, liens, mortgages, pledges, encumbrances,
restrictions, claims, equities, proxies, restrictions on
transferability, legends and defects, will pass to the
Underwriters. Except as disclosed in the Prospectus, such
Selling Stockholder is on the date hereof, and on the Closing
Date will be, the sole record and beneficial owner of the
Securities to be sold by the Selling Stockholder hereunder.
Such Selling Stockholder is selling the Securities to be sold
by such Selling Stockholder for such Selling Stockholder's own
account and is not selling such Securities, directly or
indirectly, for the benefit of the Company, and no part of the
proceeds of such sale received by such Selling Stockholder
will inure, either directly or indirectly, to the benefit of
the Company other than as described in the Registration
Statement and Prospectus.
(iii) Neither the execution, delivery or performance
of this Agreement, the Power of Attorney or the Custody
Agreement, nor the consummation of the transactions
contemplated hereby or thereby, (A) will require the consent,
approval, authorization, registration or qualification of or
with any governmental authority, except such as have been
obtained, such as may be required under state securities or
blue sky laws of any jurisdiction in the United States and, if
the Registration Statement is not effective under the 1933 Act
as of the time of execution hereof, such as may be required
(and shall be obtained as provided in this Agreement) under
the 1933 Act, or (B) will conflict with or result in a breach
or violation by such Selling Stockholder of any of the terms
or provisions of, or constitute a default by such Selling
Stockholder under, any voting trust agreement, shareholders
agreement, mortgage, deed of trust, trust (constructive or
other), security agreement, loan agreement, lease, franchise,
license, indenture, permit or other agreement or instrument to
which such Selling Stockholder is a party or by which such
Selling Stockholder or any of its properties is bound or any
statute, or any judgment, decree, order, rule or regulation of
any court or governmental agency or body applicable to such
Selling Stockholder.
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(iv) Such Selling Stockholder has not, since the
earlier of the filing of the first public announcement of the
Offering or the Registration Statement with the Commission,
(A) sold, bid for, purchased, attempted to induce any person
to purchase, or paid anyone any consideration for soliciting
purchases of, Common Stock (or securities convertible into or
exchangeable for Common Stock) or (B) paid or agreed to pay
any person any consideration for soliciting another to
purchase any securities of the Company, except for the sale of
shares of Common Stock by such Selling Stockholder under this
Agreement.
(v) Such Selling Stockholder has not taken,
directly or indirectly, any action designed to result in or
which has constituted or which 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 the Securities; such Selling Stockholder has not
effected any sales of Common Stock which, if effected by the
Company, would be required to be disclosed in response to Item
701 of Regulation S-K under the 1933 Act.
(vi) To the extent that any statement or omission is
made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement
thereto relating to such Selling Stockholder or in reliance
upon and in conformity with written information furnished to
the Company by or on behalf of such Selling Stockholder, such
Preliminary Prospectus did, and the Registration Statement and
the Prospectus and any amendments or supplements thereto when
they become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations and
will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
Such Selling Stockholder has reviewed the most recent
Preliminary Prospectus, the Prospectus (if the same shall be
in existence) and the Registration Statement, and the
information regarding such Selling Stockholder set forth
therein, including information set forth under the caption
"Principal and Selling Stockholders," is complete and accurate
and fairly presents the information required to be stated
therein.
(vii) Such Selling Stockholder is not aware that any
of the representations and warranties of the Company set forth
in Section 2(a) of this Agreement is untrue or inaccurate in
any material respect, and the sale by the Selling Stockholder
of shares of Common Stock pursuant to this Agreement is not
prompted by any adverse information concerning the Company
that is not set forth in the Prospectus.
(viii) Such Selling Stockholder has not distributed
and will not distribute any Prospectus or other offering
material in connection with the offering and sale of the
Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the 1933 Act to be
distributed by such Selling Stockholder.
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(c) Any certificate signed by any officer of the Company
and delivered to you 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; any certificate
signed by or on behalf of any Selling Stockholder and delivered to
you or to counsel for the Underwriters shall be deemed a
representation and warranty by such Selling Stockholder to each
Underwriter as to the matters covered thereby.
3. SALE, PURCHASE AND DELIVERY OF SECURITIES.
-----------------------------------------
(a) On the basis of the representations, warranties and
agreements herein contained, and subject to the terms and
conditions herein set forth, the Company and the Selling
Stockholders hereby agree, severally and not jointly, to sell to
each of the Underwriters the Firm Shares with the number of Firm
Shares to be sold by the Selling Stockholders being set forth on
Schedule II; and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholders,
at a purchase price per share of $----------- (the "Purchase
Price") the respective number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto. The Underwriters
may by notice to the Company amend Schedule I to add, eliminate or
substitute names set forth therein (other than to eliminate the
names of the Underwriters) and to amend the number of Firm Shares
to be purchased by any firm or corporation listed thereon, provided
that the total number of Firm Shares listed on Schedule I shall
equal 1,400,000. The number of Firm Shares to be purchased by each
Underwriter from the Company and from the Selling Stockholders
shall bear the same ratio to the total number of Firm Shares to be
sold by the Company and by each Selling Stockholder, respectively,
as the total number of Firm Shares to be purchased by such
Underwriter bears to the total number of Firm Shares to be
purchased by the Underwriters; provided, however, that the
-----------------
Underwriters shall adjust the number of Firm Shares to be purchased
by each Underwriter from the Company and Selling Stockholders as
necessary to eliminate fractional shares.
The Firm Shares will be delivered by the Company and the
Custodian to you for the accounts of the several Underwriters
against payment of the purchase price therefor by certified or
official bank check or other next day funds payable to the order of
the Company and the Custodian, as appropriate, at the offices of
Xxxxx Xxxxxxx Inc., Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually
acceptable, at 9:00 a.m., Minneapolis time, on the fourth full
business day following the date hereof, or at such other time as
you and the Company determine, such time and date of delivery being
herein referred to as the "Closing Date." The Firm Shares, in
definitive form and in such denominations and registered in such
names as you may request upon at least two business days' prior
notice to the Company and the Custodian, will be made available for
checking and packaging at the offices of Xxxxx Xxxxxxx Inc., Xxxxx
Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or
such other location as may be mutually acceptable, at least one
business day prior to the Closing Date.
(b) On the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions
herein set forth, the Company hereby grants to the Underwriters,
severally and not jointly, an option (the "Option") to purchase all or any
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portion of the 210,000 Option Shares, and upon the exercise
of the Option in accordance with this Section 3, the Company hereby
agrees to sell to the Underwriters, severally and not jointly, the
Option Shares at the same Purchase Price per share paid for the
Firm Shares. If any Option Shares are to be purchased, each
Underwriter, severally and not jointly, agrees to purchase from the
Company that proportion (subject to adjustment as you may determine
to avoid fractional shares) of the number of Option Shares to be
purchased that the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto (or such number
increased as set forth in Section 10 hereof) bears to 1,400,000.
The Option shall expire 30 days after the date upon which the
Registration Statement becomes effective and may be exercised only
for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Firm Shares.
The Option may be exercised in whole or in part at any time (but
not more than once) by you giving notice (confirmed in writing) to
the Company setting forth the number of Option Shares as to which
the several Underwriters are exercising the Option and the time,
date and place for payment and delivery of certificates for such
Option Shares. Such time and date of payment and delivery for the
Option Shares (the "Option Closing Date") shall be determined by
you, but shall not be earlier than two nor later than seven full
business days after the exercise of such Option, nor in any event
prior to the Closing Date. The Option Closing Date may be the
same as the Closing Date.
The Option Shares will be delivered by the Custodian and
the Company, as appropriate, to you for the accounts of the several
Underwriters against payment of the purchase price therefor by
certified or official bank check or other next day funds payable to
the order of the Custodian or the Company, as appropriate, at the
offices of Xxxxx Xxxxxxx Inc., Xxxxx Xxxxxxx Tower, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be
mutually acceptable at 9:00 a.m., Minneapolis time, on the Option
Closing Date. The Option Shares in definitive form and in such
denominations and registered in such names as you have set forth in
your notice of Option exercise, will be made available for checking
and packaging at the office of Xxxxx Xxxxxxx Inc., Xxxxx Xxxxxxx
Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such
other location as may be mutually acceptable, at least one business
day prior to the Option Closing Date.
(c) It is understood that each or any of you may (but
shall not be obligated to) make payment to the Company or the
Selling Stockholders, on behalf of any Underwriter for the
Securities to be purchased by such Underwriter. Any such payment
by you shall not relieve any such Underwriter of any of its
obligations hereunder. Nothing herein contained shall constitute
any of the Underwriters an unincorporated association or partner
with the Company or any Selling Stockholder. Time shall be of the
essence, and delivery of the certificates for the Securities at the
time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder.
4. COVENANTS. The Company and, where expressly
---------
stated, the Selling Stockholders, covenant with each of the
Underwriters as follows:
(a) The Company shall use its best efforts to cause the
Registration Statement and any amendments thereto, if not effective
at the time of execution of this Agreement, to
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become effective as promptly as possible. If the Registration Statement has
become or becomes effective pursuant to Rule 430A and information has been
omitted therefrom in reliance on Rule 430A, then, the Company will
prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-
effective amendment to the Registration Statement (including the
Prospectus) containing all information so omitted and will provide
evidence satisfactory to the Underwriters of such timely filing.
(b) The Company shall notify you immediately, and
confirm such notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has
become effective, or when the Prospectus or any supplement to
the Prospectus or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests from
the Commission to amend or supplement the Registration
Statement, any Preliminary Prospectus or the Prospectus or for
additional information; and
(iii) of the issuance by the Commission or any state
or other regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus
or the Prospectus, or suspending the qualification of any of
the Securities for offering or sale in any jurisdiction or the
institution or threat of institution of any proceedings for
any of such purposes. The Company shall use its best efforts
to prevent the issuance of any such stop order or of any other
such order and if any such order is issued, to cause such
order to be withdrawn or lifted as soon as possible.
(c) The Company shall furnish to you, from time to time
without charge, as soon as available, as many copies as you may
reasonably request of (i) the registration statement as originally
filed and of all amendments thereto, in executed form, including
exhibits, whether filed before or after the Registration Statement
becomes effective, (ii) all exhibits and documents filed therewith,
(iii) all consents and certificates of experts in executed form,
(iv) each Preliminary Prospectus and all amendments and supplements
thereto, and (v) the Prospectus, and all amendments and supplements
thereto.
(d) During the time when a prospectus is required to be
delivered under the 1933 Act, the Company shall comply to the best
of its ability with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the rules and regulations thereunder (the "1934
Act Regulations") so as to permit the completion of the
distribution of the Securities as contemplated herein and in the
Prospectus. The Company shall not file any amendment to the
registration statement as originally filed or to the Registration
Statement and shall not file any amendment thereto or make any
amendment or supplement to any Preliminary Prospectus or to the
Prospectus of which you shall not previously have been advised in
writing and provided a copy a reasonable time prior to the proposed
filings thereof or to which you shall reasonably object. If it is
necessary, in your opinion or in the opinion of counsel for the
Underwriters, to amend
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or supplement the Registration Statement or the Prospectus in connection with
the distribution of the Securities, the Company shall forthwith amend or
supplement the Registration Statement or the Prospectus, as the case may be,
by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment
or amendments of, or a supplement or supplements to, the
Registration Statement or the Prospectus, as the case may be (in
form and substance satisfactory to you and to counsel for the
Underwriters). If any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus to correct an
untrue statement of a material fact or to include a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for
any reason it is necessary at any time to amend or supplement the
Prospectus to comply with the 1933 Act and the 1933 Act
Regulations, the Company shall, subject to the second sentence of
this subsection (d), forthwith amend or supplement the Prospectus
by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment
or amendments of, or a supplement or supplements to, the Prospectus
(in form and substance satisfactory to you and to counsel for the
Underwriters) so that, as so amended or supplemented, the
Prospectus shall not contain an untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(e) The Company and the Selling Stockholders shall each
immediately (as it becomes known to each of them, respectively)
notify the Underwriters if any event occurs, or of any change in
information relating to the Company or any new information relating
to the Company or relating to any matter stated in the Prospectus
or any supplement thereto, which results in the Prospectus (as
supplemented) including an untrue statement of a material fact or
omitting to state any material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(f) The Company shall cooperate with you and counsel for
the Underwriters in order to qualify the Securities for offering
and sale under the securities or blue sky laws of such
jurisdictions as you may reasonably request and shall continue such
qualifications in effect so long as may be advisable for
distribution of the Securities; provided, however, that the Company
shall not be required to qualify to do business in any such
jurisdiction. The Company shall file such statements and reports
as may be required by the laws of each jurisdiction in which the
Securities have been qualified as above to continue such
qualifications in effect for so long a period as the Underwriters
may reasonably request for the distribution of the Securities. The
Company will notify you immediately of, and confirm in writing, the
suspension of qualification of the Securities or threat thereof in
any jurisdiction.
(g) The Company shall make generally available to its
security holders in the manner contemplated by Rule 158 of the 1933
Act Regulations and furnish to you as soon as practicable, but in
any event not later than 16 months after the Effective Date, a
consolidated earnings statement of the Company conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158 and will
advise you in writing when such statement has been so made
available.
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(h) The Company shall use the net proceeds from the sale
of the Securities sold to be sold by the Company hereunder in the
manner specified in the Prospectus under the caption "Use of
Proceeds."
(i) For five years from the Effective Date, the Company
shall furnish to the Underwriters copies of all reports and
communications (financial or otherwise) furnished by the Company to
the holders of the Common Stock as a class, copies of all reports
and financial statements filed with or furnished to the Commission
(other than portions for which confidential treatment has been
obtained from the Commission) or with any national securities
exchange or the NNM and such other documents, reports and
information concerning the business and financial condition of the
Company as the Underwriters may reasonably request.
(j) For a period of 120 days from the date hereof,
neither the Company nor any Selling Stockholder retaining Common
Stock shall, directly or indirectly, offer for sale, sell or agree
to sell or otherwise dispose of (except, in the case of the Selling
Stockholders, for bona fide gifts), any shares of Common Stock, or
any securities convertible into, exercisable or exchangeable for,
or that are the economic or voting equivalent of, any such shares
of Common Stock, or announce the offering of, or register with the
Commission, any shares of Common Stock or any such other
securities, without the prior written consent of Xxxxx Xxxxxxx,
Inc.
(k) The Company has caused to be delivered to you or
will cause to be delivered to you prior to the Effective Date a
letter agreement from each of the Company directors and officers
listed on Schedule III hereto (the "Listed Affiliates") and each of
the Selling Stockholders (the "Lockup Agreements") stating that
such person or entity, as the case may be, agrees that he, she or
it will not, without your prior written consent, directly or
indirectly offer for sale, sell or agree to sell or otherwise
dispose of (except for bona fide gifts) any shares of Common Stock,
or any securities convertible into, exercisable or exchangeable
for, or that are the economic or voting equivalent of, any such
shares of Common Stock, for a period of 120 days after commencement
of the public offering of the Securities by the Underwriters.
(l) The Company shall use its best efforts to maintain
the quotation of the Common Stock (including the Securities) on the
NNM.
(m) Subsequent to the date of this Agreement and through
the date which is the later of (i) the day following the date on
which the Option shall expire or (ii) the day following the Option
Closing Date with respect to any Option Shares that the
Underwriters shall elect to purchase, except as described in or
contemplated by the Prospectus, the Company shall not take any
action (or refrain from taking any action) which will result in the
Company incurring any material liability or obligation, direct or
contingent, or enter into any material transaction, except in the
ordinary course of business, and there will not be any material
change in capital stock, or any material increase in long-term
debt, obligations under capital leases or short-term borrowings of
the Company, on a consolidated basis, except in the ordinary course
of business.
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(n) Neither the Company nor any Selling Stockholder
shall take, directly or indirectly, any action designed to result
in or which has constituted or which 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 the
Securities.
(o) Prior to the Closing Date (and, if applicable, the
Option Closing Date), neither the Company nor any Selling
Stockholder will issue any press release or other communication
directly or indirectly or hold any press conference with respect to
the Company or the Offering without your prior written consent.
(p) The Company will not incur any liability for any
finder's or broker's fee or agent's commission in connection with
the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby.
(q) The Company will inform the Florida Department of
Banking and Finance at any time prior to the consummation of the
distribution of the Securities by the Underwriters if it commences
engaging in business with the government of Cuba or with any person
or affiliate located in Cuba. Such information will be provided
within 90 days after the commencement thereof or after a change
occurs with respect to previously reported information related
thereto.
(r) The Company shall conduct its business in compliance
in all material respects with all applicable federal and state
laws, rules, regulations, decisions, directives and orders
(including, without limitation, the applicable provisions of the
1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act
Regulations and the General Corporation Code of Kansas).
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
-------------------------------------------
obligations of the Underwriters to purchase and pay for the Firm
Shares and, following exercise of the Option granted by the Company
in Section 3 of this Agreement, the Option Shares, are subject, in
your discretion, to the accuracy of and compliance with the
representations and warranties and agreements of the Company and
the Selling Stockholders herein as of the date hereof and as of the
Closing Date (or in the case of the Option Shares, if any, as of
the Option Closing Date), to the accuracy of the written statements
of the Company and its officers and the Selling Stockholders made
pursuant to the provisions hereof, to the performance by the
Company and the Selling Stockholders of their respective covenants
and obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared
effective prior to the time of execution hereof, the Registration
Statement shall become effective not later than 5:00 p.m.,
Minneapolis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you
may agree to in writing. If required, the Prospectus and any
amendment or supplement thereto shall have been timely filed in
accordance with Rule 424(b) and Rule 430A under the 1933 Act and
Section 4(a) hereof. No stop order suspending the effectiveness of the
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Registration Statement or any amendment or supplement thereto
shall have been issued under the 1933 Act or any applicable state
securities laws and no proceedings for that purpose shall have been
instituted or shall be pending, or, to the knowledge of the Company
or the Underwriters, shall be threatened by the Commission or any
state authority. Any request on the part of the Commission or any
state authority for additional information (to be included in the
Registration Statement or Prospectus or otherwise) shall have been
disclosed to you and complied with to your satisfaction and to the
satisfaction of counsel for the Underwriters.
(b) No Underwriter shall have advised the Company or any
Selling Stockholder at or before the Closing Date (and, if
applicable, the Option Closing Date) that the Registration
Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an
untrue statement of a fact which, in your opinion, is material or
omits to state a fact which, in your opinion, is material and is
required to be stated therein or is necessary to make statements
therein (in the case of the Prospectus or any amendment or
supplement thereto, in light of the circumstances under which they
were made) not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization by the Company, form and validity of
this Agreement, and the authorization by the Company and form of
the Registration Statement and Prospectus, other than financial
statements and other financial data, and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be satisfactory in all respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel
all documents and information relating thereto that they may
reasonably request to enable them to pass upon such matters.
(d) On the Closing Date (and, if applicable, the Option
Closing Date), you shall have received the opinion of Xxxxxxx, Mag
& Fizzell, P.C., counsel for the Company, addressed to you and
dated the Closing Date (and, if applicable, the Option Closing
Date), substantially to the effect that as of the date hereof:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Kansas, with full corporate power and
authority to own, lease and operate its properties and conduct
its businesses as described in the Registration Statement.
The Company is duly qualified to do business as a foreign
corporation in good standing in each state or other juris-
diction in which its ownership or leasing of property or
conduct of business legally requires such qualification.
(ii) The Company's authorized capital stock is as
set forth under the heading "Capitalization" in the
Prospectus. All outstanding shares of capital stock of the
Company and the Securities conform in all material respects to
the description thereof in the Prospectus under the heading
"Description of Capital Stock," and the statements in the
Prospectus under such caption fairly summarize in all material
respects the provisions referred to in the Company's
certificate of incorporation, bylaws and the law
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of the State of Kansas. The form of certificate used to evidence the
Common Stock has been approved by the Company's Board of
Directors, and assuming such certificate is signed by the
proper and authorized officers of the Company as required by
the law of the State of Kansas, will comply as to form with
the requirements of such law. The outstanding shares of
Common Stock have been duly authorized and are validly issued,
fully paid and non-assessable, were issued in material
compliance with all applicable Federal and state securities
laws and the laws of the State of Kansas, and were not issued
in violation of or subject to any preemptive rights or other
rights to purchase or subscribe for securities of the Company.
The Securities to be sold by the Company have been duly
authorized and, when delivered and fully paid for in
accordance with this Agreement, will be validly issued, fully
paid and non-assessable, and the shareholders of the Company
have no preemptive rights with respect to such Securities. To
such counsel's actual knowledge, except as disclosed in the
Prospectus, there are no outstanding options, warrants, or
other rights calling for the issuance of, and no present
commitments, plans or arrangements of the Company at this time
to issue any shares of capital stock of the Company or any
security convertible into or exchangeable for capital stock of
the Company. Upon delivery of the Securities to be sold by
the Company and full payment therefor pursuant to this
Agreement and registration of the ownership of such Securities
by the transfer agent for such Securities, good and valid
title to such Securities free and clear of all liens,
encumbrances, security interests, restrictions on transfer,
equities or claims whatsoever other than those created or
granted by this Agreement or by the Underwriters, will pass to
the Underwriters.
(iii) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become
effective under the 1933 Act and, to the best 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 pending or
contemplated under the 1933 Act; any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b)
of the 1933 Act Regulations has been made in the manner and
within the time period required by such Rule 424(b).
(iv) The Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of their
respective effective or issue dates, comply as to form in all
material respects with the requirements of Form S-1 under the
1933 Act and 1933 Act Regulations (except that such counsel
need express no opinion or belief as to financial and
statistical data, financial statements and notes and related
schedules thereto).
(v) The descriptions in the Registration Statement
and Prospectus of contracts and other documents filed (or
incorporated by reference) as exhibits to the Registration
Statement are accurate in all material respects.
(vi) No authorization, approval, consent, order,
registration or qualification of or with any court or public,
regulatory or governmental body, authority or agency is
required with respect to the Company in connection with the
transactions
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contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the
1934 Act Regulations or by the NASD or under state securities
laws in connection with the purchase and distribution of the
Securities by the Underwriters.
(vii) The Company has all requisite corporate power
and authority to enter into this Agreement and to sell and
deliver the Securities to be sold by it to the several
Underwriters. The filing of the Registration Statement with
the Commission has been duly authorized by the Board of
Directors of the Company. This Agreement has been duly
authorized, executed and delivered by the Company, and is a
valid and legally binding obligation of the Company
enforceable in accordance with its terms (except to the extent
the enforceability of the indemnification, exculpation and
contribution provisions of Section 6 hereof may be limited by
applicable law and except as enforceability of this Agreement
may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other laws
affecting creditors' rights generally and by general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law). The making and performance of this Agreement by the
Company and the consummation of the transactions herein
contemplated will not result in a violation of the Company's
certificate of incorporation or bylaws or result in a breach
or violation of any of the terms and provisions of, or consti-
tute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any properties or
assets of the Company or the Subsidiary under, any applicable
Federal or state statute, or under any indenture, mortgage,
deed of trust, note, loan agreement, lease, franchise,
license, permit or any other agreement or instrument to which
the Company or the Subsidiary is a party or by which they are
bound or to which any of the properties or assets of the
Company or the Subsidiary are subject, or any order, rule or
regulation of any court or public, regulatory or governmental
agency, authority or body having jurisdiction over the Company
or the Subsidiary or their properties.
(viii) To the actual knowledge of such counsel,
(A) there are no (individually or in the aggregate) legal,
governmental or regulatory proceedings pending or threatened
to which the Company or the Subsidiary is a party or of which
the business or properties of the Company or the Subsidiary is
the subject which would have a material adverse effect on the
business or property of the Company and the Subsidiary taken
as a whole or on the ability of the Company to consummate the
transactions contemplated herein, and which are not disclosed
in the Registration Statement and Prospectus; (B) there are no
contracts or documents 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 which are not
described therein or filed as required; (C) neither the
Company nor the Subsidiary is a party or subject to the
provisions of any injunction, judgment, decree or order of any
court or any public, regulatory or governmental agency,
authority or body which would have a material adverse effect
on the business or property of the Company and the Subsidiary
taken as a whole or on the ability of the Company to
consummate the transactions contemplated herein; and
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(D) there are no applicable Federal or state statutes, orders, rules or
regulations required to be described in the Registration
Statement or Prospectus under the 1933 Act, the 1934 Act or
applicable state securities laws which are not described
therein as required.
(ix) The Company and the Subsidiary hold all
licenses, certificates, permits, franchises, consents,
authorizations and approvals from all state and federal
regulatory authorities, that are required for the Company and
the Subsidiary to conduct their business as described in the
Prospectus, except in the case of any such license,
certificate, permit, franchise, consent, authorization or
approval the loss of which or failure to maintain would not
have a material adverse effect on the business of the Company
and the Subsidiary taken as a whole.
(x) The Solicitation Documents and, to the extent
applicable, the Lock-Up Agreements which have been executed
and forwarded to the Company or the Custodian by the Selling
Stockholders and this Agreement constitute the legal, valid
and binding agreement of such Selling Stockholders,
enforceable in accordance with their respective terms and
conditions (except to the extent the enforceability of the
indemnification, exculpation and contribution provisions of
Section 6 hereof may be limited by applicable law, and except
as enforceability of this Agreement and the Solicitation
Documents may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other laws
affecting creditors' rights generally and by general
principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law) and the Selling Stockholders have all requisite power and
authority to sell and deliver the Securities sold by them in
accordance with and upon the terms and conditions set forth in
this Agreement and the Registration Statement and the
Prospectus; and upon delivery of and payment for such
Securities as provided in this Agreement and the Solicitation
Documents, each of the several Underwriters that has purchased
such Securities in good faith and without notice of any lien,
encumbrance, equity or claim or any other adverse claim within
the meaning of the Uniform Commercial Code has thereby
acquired good and marketable title to all the Securities being
sold to such Underwriters by the Selling Stockholder, free and
clear of all liens, charges, security interests, encumbrances
or any adverse claims. In rendering the opinion contemplated
in this subparagraph (x), such counsel may assume (A) the
signatories thereto have the proper capacity and due
authorization to execute same on behalf of the respective
Selling Stockholder (except as to this Agreement), and (B)
neither the Custodian nor the Attorney-in-Fact for the Selling
Stockholder has received notice of revocation of any Power of
Attorney contained in the Solicitation Documents, and such
counsel may rely as to all matters of fact upon, among other
things (X) representations, warranties, covenants or other
written statements of the Selling Stockholders in their
respective Solicitation Documents, (Y) a certificate from the
Custodian stating that the Custodian has examined the
Solicitation Documents received from the Selling Stockholders
and that such Solicitation Documents were completed in
accordance with the instructions for completing such
Solicitation Documents, or (Z) other reasonable written
certificates or statements of the Selling Stockholders, copies
of which
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such counsel has provided to you and provided that
the extent of such reliance is specified in such opinion.
(xi) The Company is not in violation of its
certificate of incorporation and bylaws. The Company is not
in breach of, or in default with respect to, any provisions of
any agreement, mortgage, deed of trust, lease, note,
agreement, franchise, license, indenture, permit or other
instrument to which the Company is a party or by which the
Company or any of the properties thereof may be bound or
affected, which breach or default would have a material
adverse effect on the business or property of the Company and
the Subsidiary taken as a whole or on the Company's ability to
consummate the transactions contemplated herein, and the
Company is in material compliance with all judgments, decrees
and orders of any court to which the Company is subject.
(xii) The Common Stock is registered pursuant to
Section 12(g) of the 1934 Act. The Common Stock is approved
for quotation on the NNM.
(xiii) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
(xiv) To such counsel's actual knowledge, except
as described in the Prospectus, no holders of securities of
the Company have rights which have not been waived or
satisfied, other than any rights provided to the Selling
Stockholders pursuant to the terms hereof, which would entitle
such holders to require the registration of shares of Common
Stock or other securities as a result of the filing of the
Registration Statement by the Company or the offering
contemplated hereby.
Such counsel shall confirm that during the preparation of
the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and other representatives
of the Company, representatives of the independent certified public
accountants for the Company and representatives of the
Underwriters, at which the contents of the Registration Statement
and Prospectus and related matters were discussed and reviewed and
although such counsel is not opining with respect to and does not
assume any responsibility for the accuracy, truthfulness,
completeness or fairness of the statements contained in the
Registration Statement or Prospectus or any amendment or supplement
thereto, such counsel confirms that no facts have come to their
attention which have caused them to believe that either (A) the
Prospectus or any supplement thereto as of its date (other than
financial or statistical data, the financial statements and notes
or any related schedules thereto, as to which such counsel need
express no opinion or belief) contains any untrue statement of a
material fact 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 or (B) the Registration Statement or any amendment
thereto at the time it became effective (other than financial or
statistical data, the financial statements and notes or any related
schedules thereto, as to which such counsel need express no opinion
or belief) contains any untrue statement of a
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material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
In rendering the foregoing opinion, such counsel may (A)
rely upon an opinion of Xxxxxxx X. Xxxxx, General Counsel for the
Company, as described in Section 5(e) below, as to matters
addressed in (1) the second sentence of subparagraph (i) above, (2)
the fourth sentence of subparagraph (vii) above, except that such
counsel may not rely on the opinion of such General Counsel of the
Company as to matters of Federal law or that the making and
performance of this Agreement by the Company and the consummation
of the transactions herein contemplated will not result in the
violation of the Company's certificate of incorporation or bylaws,
(2) items (A) and (C) of subparagraph (viii) above, (3)
subparagraph (ix) above, (4) subparagraph (xiv) above, and (5)
subparagraph (ii) of Section 5(e) below; provided, however, to the
extent the foregoing provisions or subparagraphs are qualified by
such counsel's knowledge, such General Counsel's opinion may not be
so qualified; provided further, that nothing shall have come to the
attention of such counsel that would reasonably cause such counsel
to believe that such counsel is not justified in relying upon such
General Counsel's opinion, and (B) expressly state that it is
qualified to render an opinion only as to matters involving the
Federal laws of the United States and the laws of the States of
Missouri and Kansas and may rely as to all matters of fact upon,
among other things, certificates and written statements of officers
of the Company and government officials and the representations and
warranties of the Company contained herein; provided that such
counsel shall state that nothing has come to the attention of such
counsel that would reasonably cause such counsel to believe that
they and the Underwriters are not justified in relying upon such
certificates, statements, representations and warranties.
(e) On the Closing Date (and, if applicable, the Option
Closing Date), you shall have received the opinion of Xxxxxxx X.
Xxxxx, General Counsel for the Company, addressed to you and
Xxxxxxx, Mag & Fizzell, P.C. and dated the Closing Date (and, if
applicable, the Option Closing Date), substantially to the effect
as contemplated by Section 5(d) and that as of the date hereof:
(i) The Company and the Subsidiary have been duly
incorporated and are validly existing as corporations in good
standing under the laws of the State of Kansas, with full
corporate power and authority to own, lease and operate their
properties and conduct their businesses as described in the
Registration Statement. The Company and the Subsidiary are
duly qualified to do business as foreign corporations in good
standing in each state or other jurisdiction in which their
ownership or leasing of property or conduct of business
legally requires such qualification. The outstanding shares
of capital stock of the Subsidiary have been duly authorized
and validly issued and are owned by the Company free and clear
of any mortgage, pledge, lien, encumbrance, charge or adverse
claim, and are not the subject of any agreement or
understanding with any person, except as disclosed in the
Prospectus. No options, warrants or other rights to purchase,
agreement or other obligations to issue or other rights to
convert any obligations into shares of capital stock or
ownership interests in the Subsidiary are outstanding.
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(ii) The Company and the Subsidiary are not in
violation of their certificates or articles of incorporation
and bylaws. Neither the Company nor the Subsidiary is in
breach of, or in default with respect to, any provisions of
any agreement, mortgage, deed of trust, lease, note,
agreement, franchise, license, indenture, permit or other
instrument to which the Company or the Subsidiary is a party
or by which the Company or the Subsidiary or any of the
properties thereof may be bound or affected, which breach or
default would have a material adverse effect on the business
or property of the Company and the Subsidiary taken as a whole
or on the Company's ability to consummate the transactions
contemplated herein, and the Company and the Subsidiary are in
material compliance with all judgments, decrees and orders of
any court to which the Company or the Subsidiary is subject.
In rendering the foregoing opinion, such General Counsel
may expressly state that he is qualified to render an opinion only
as to matters involving the laws of the State of Kansas.
(f) Xxxxx Xxxx LLP, counsel for the Underwriters, shall
have furnished you their signed opinion, dated the Closing Date
(or, if applicable, the Option Closing Date) with respect to the
incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and such other related
matters as you may reasonably request and there shall have been
furnished to such counsel such documents and other information as
they may request to enable them to pass on such matters. In
rendering such opinion, Xxxxx Xxxx may expressly state that it is
qualified to render an opinion only as to matters involving the
Federal laws of the United States, the laws of the States of
Missouri and Kansas and may rely as to all matters of fact upon,
among other things, certificates and written statements of officers
of the Company and government officials and the representations and
warranties of the Company contained herein; provided that Xxxxx
Xxxx shall state that nothing has come to its attention that would
reasonably cause it to believe that it and the Underwriters are not
justified in relying upon such certificates, statements,
representations and warranties.
(g) On the date of this Agreement and on the Closing
Date (and, if applicable, the Option Closing Date), the
Underwriters shall have received from KPMG Peat Marwick LLP a
letter, dated the date of this Agreement and the Closing Date (and,
if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to the Underwriters, confirming that they
are independent public accountants with respect to the Company and
the Subsidiary, within the meaning of the 1933 Act and the 1933 Act
Regulations, and that the answer to Item 509 of Regulation S-K set
forth in the Registration Statement, is correct insofar as it
relates to them, and stating in effect that:
(i) In their opinion, the consolidated financial
statements and any supplementary financial information and
schedules of the Company and the Subsidiary audited by them
and included in the Registration Statement comply as to form
in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations with
respect to registration statements on Form S-1.
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(ii) On the basis of the procedures specified by
the American Institute of Certified Public Accountants as
described in SAS No. 71, "Interim Financial Information",
inquiries of officials of the Company and the Subsidiary
responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such
letter, which procedures do not constitute an audit in
accordance with generally accepted auditing standards, nothing
came to their attention that caused them to believe that the
unaudited interim consolidated financial statements of the
Company included in the Registration Statement do not comply
as to form in all material respects with the applicable
accounting requirements of the 1933 Act and 1933 Act
Regulations or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated
financial statements of the Company and the Subsidiary
included in the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited
interim financial statements and other information referred to
below, a reading of the latest available unaudited condensed
consolidated financial statements of the Company and the
Subsidiary, inspection of the minute books of the Company and
the Subsidiary since the date of the latest audited
consolidated financial statements of the Company included in
the Registration Statement, inquiries of officials of the
Company and the Subsidiary responsible for financial and
accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) as of a specified date not more than five
business days prior to the date of such letter, with
respect to the Company and the Subsidiary, there have
been any changes in the consolidated stockholders' equity
(other than increases in retained earnings) or any
increase in the consolidated long-term debt, short-term
borrowings, obligations under capital leases or real
estate owned, any decreases in consolidated total assets,
or any changes, decreases or increases in other items
specified by the Underwriters, in each case as compared
with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the
Company and the Subsidiary included in the Registration
Statement except in each case for changes, increases or
decreases which the Registration Statement specifically
discloses have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements
included in the Registration Statement to the specified
date referred to in paragraph (iii)(A), with respect to
the Company and the Subsidiary, there were any decreases
in consolidated net sales, operating income or net
income, or any changes, decreases or increases in any
other items specified by the Underwriters, in each case
as compared with the comparable period of the preceding
year and with any other period of corresponding length
specified by the Underwriters, except in each case for
increases or decreases
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which the Registration Statement discloses have occurred or may
occur, or which are described in such letter.
(iv) In addition to the audit referred to in their
report included in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above,
they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts,
percentages and financial information specified by the
Underwriters which are derived from the general accounting
records and consolidated financial statements of the Company
and the Subsidiary which appear in the Registration Statement
specified by the Underwriters in the Registration Statement,
and have compared such amounts, percentages and financial
information with the accounting records and the material
derived from such records and consolidated financial
statements of the Company and the Subsidiary have found them
to be in agreement.
In the event that the letters to be delivered referred to
above set forth any such changes, decreases or increases as
specified in paragraphs (iii)(A) or (iii)(B) above, or any
exceptions from such agreement specified in paragraph (iv) above,
it shall be a further condition to the obligations of the
Underwriters that the Underwriters shall have determined, after
discussions with officers of the Company responsible for financial
and accounting matters, that such changes, decreases, increases or
exceptions as are set forth in such letters do not (x) reflect a
material adverse change in the items specified in paragraph
(iii)(A) above as compared with the amounts shown in the latest
unaudited consolidated statement of financial condition of the
Company and the Subsidiary included in the Registration Statement,
(y) reflect a material adverse change in the items specified in
paragraph (iii)(B) above as compared with the corresponding periods
of the prior year or other period specified by the Underwriters, or
(z) reflect a material change in items specified in paragraph (iv)
above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriters in connection with the offering
contemplated hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date (and, if applicable, the Option
Closing Date), you shall have received certificates of the chief
executive officer and the chief financial and accounting officer of
the Company, which certificates shall be deemed to be made on
behalf of the Company, dated as of the Closing Date (and, if
applicable, the Option Closing Date), evidencing satisfaction of
the conditions of Section 5(a) and stating that (i) the
representations and warranties of the Company set forth in Section
2 hereof are accurate as of the Closing Date (and, if applicable,
the Option Closing Date), and that the Company and the Selling
Stockholders, as the case may be, have complied with all agreements
and satisfied all conditions on their part to be performed or
satisfied at or prior to such Closing Date; (ii) since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or otherwise),
earnings, affairs, business or results of operations of the Company
and the Subsidiary on a consolidated basis; (iii) since such dates
there has not been any material transaction entered into by the
Company or the Subsidiary other than transactions in the ordinary
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course of business; (iv) they have carefully examined the
Registration Statement and the Prospectus as amended or
supplemented and nothing has come to their attention that would
lead them to believe that either the Registration Statement or the
Prospectus, or any amendment or supplement thereto as of their
respective effective or issue dates, contained, and the Prospectus
as amended or supplemented at such Closing Date (and, if
applicable, the Option Closing Date), contains any untrue statement
of a material fact, or omits to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and (v) covering such other matters as you
may reasonably request. The officers' certificate of the Company
shall further state that no stop order affecting the Registration
Statement is in effect or threatened by the Commission.
(i) You shall have received copies of Lockup Agreements
duly executed and delivered by each of the Selling Stockholders and
the Listed Affiliates.
(j) The Custodian for the Company shall have furnished
you a certificate evidencing the receipt from, and execution of the
Solicitation Documents by, the Selling Stockholders in such form as
shall be acceptable to you.
(k) The NASD, upon review of the terms of the public
offering of the Securities, shall not have objected to any
Underwriter's participation in such offering.
(l) The Securities shall have been approved for
quotation on the NNM under the symbol "DUCK".
(m) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Company shall have furnished to you and
counsel for the Underwriters all such other documents, certificates
and opinions as they have reasonably requested.
All opinions, certificates, letters and other documents
shall be in compliance with the provisions hereof only if they are
reasonably satisfactory in form and substance to you. Any
certificate signed by an officer of the Company and delivered to
you pursuant hereto shall also be deemed to be a representation and
warranty of the Company to the Underwriters as to the statements
made therein. The Company and the Selling Stockholders shall
furnish you with conformed copies of such opinions, certificates,
letters and other documents as you shall reasonably request.
If any of the conditions referred to in this Section 5
shall not have been fulfilled when and as required by this
Agreement, this Agreement and all obligations of the Underwriters
hereunder may be terminated by you on notice to the Company at, or
at any time before, the Closing Date (or, if applicable, the Option
Closing Date). Any such termination shall be without liability of
the Underwriters to the Company or any Selling Stockholder.
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6. 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 the 1933 Act, against any and all
losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable attorney fees),
joint or several, arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact made by
the Company contained in Section 2(a) of this Agreement (or any
certificate delivered by the Company pursuant hereto Section 5(h)
hereto) or the registration statement as originally filed or the
Registration Statement, any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto, (ii) any
blue sky application or other document executed by the Company
specifically for that purpose or based upon written information
furnished by the Company filed in any state or other jurisdiction
in order to qualify any of the Securities under the securities laws
thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), (iii) any
omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration
Statement, any Preliminary Prospectus or the Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application
required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of
investigation and attorney fees), joint or several, arising out of
or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus or the
Prospectus, or in any amendment of supplement thereto, or arising
out of or based upon any omission or alleged omission to state
therein 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 (iv) the enforcement
of this indemnification provision or the contribution provisions of
Section 6(e); and shall reimburse each such indemnified party for
any reasonable legal or other expenses as incurred, but in no event
less frequently than 30 days after each invoice is submitted,
incurred by them 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, notwithstanding
the possibility that payments for such expenses might later be held
to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Company shall not be
-----------------
liable in any such case to the extent, but only to the extent, that
any such losses, claims, damages, liabilities and expenses arise
out of or are based upon any untrue statement or omission or
allegation thereof that has been made therein or omitted therefrom
in reliance upon and in conformity with information furnished in
writing to the Company through you by or on behalf of any
Underwriter expressly for use therein beneath the heading
"Underwriting;" provided further, that the indemnification
----------------
contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or of
any person controlling such Underwriter) to the extent any such
losses, claims, damages, liabilities or expenses directly results
from the fact that such Underwriter sold Securities to a person to
whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have
been furnished to such Underwriter in sufficient time to distribute
same with or prior to the written confirmation of the sale
involved), if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the
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failure to give or send such person such document; and provided further,
----------------
that the Company shall have no liability under this indemnity in
any such case to the extent, but only to the extent, that such
losses, claims, damages, liabilities and expenses arose out of or
were based upon any untrue statement or omission made or omitted
from any Preliminary Prospectus or Prospectus in justifiable
reliance upon information with respect to a Selling Stockholder.
The foregoing indemnity agreement is in addition to any liability
the Company may otherwise have to any such indemnified party.
(b) The Selling Stockholders severally and not jointly
agree to indemnify and hold harmless each Underwriter, and each
person, if any, who controls any Underwriter within the meaning of
the 1933 Act, against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of
investigation and attorney fees), joint or several, arising out of
or based (i) upon any untrue statement or alleged untrue statement
of a material fact made by a Selling Stockholder contained in
Section 2(b) of this Agreement, (ii) upon any untrue statement or
alleged untrue statement of a material fact made by a Selling
Stockholder contained in the registration statement as originally
filed or the Registration Statement, any Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, or
(iii) any omission or alleged omission to state a material fact in
the registration statement as originally filed or the Registration
Statement, any Preliminary Prospectus, or in any amendment or
supplement thereto required to be stated therein or necessary to
make the statements therein not misleading, and against any and all
losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorney fees), joint or
several, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment of
supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein 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; and shall reimburse each such indemnified party for any
legal or other expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, reasonably
incurred by them 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, notwithstanding
the possibility that payments for such expenses might later be held
to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Selling Stockholders shall be
-----------------
severally liable in any such case to the extent, but only to the
extent, that any such losses, claims, damages, liabilities and expenses
arise out of or are based upon any untrue statement or omission or
allegation thereof that has been made therein or omitted therefrom
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of a Selling Stockholder,
including, without limitation, the information with respect to a
Selling Stockholder beneath the heading "Principal and Selling
Stockholders;" provided further, that in no event shall the Selling
----------------
Stockholders be liable under this paragraph for an amount exceeding the
aggregate purchase price received by the Selling Stockholders from the
Underwriters for the Securities sold by the Selling Stockholders
hereunder; and provided further, that the indemnification contained
-------- -------
in this paragraph with respect to any Preliminary Prospectus shall not inure
to the benefit of any Underwriter (or of any person controlling such
Underwriter) to the extent any such losses, claims, damages, liabilities or
expenses directly results from the fact that such Underwriter sold Securities
to a
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person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have
been furnished to such Underwriter in sufficient time to distribute
same with or prior to the written confirmation of the sale
involved), if required by law, and if such loss, claim, damage,
liability or expense would not have arisen but for the failure to
give or send such person such document. The foregoing indemnity
agreement is in addition to any liability any Selling Stockholder
may otherwise have to any such indemnified party.
(c) Each Underwriter, severally and not jointly, agrees
to indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement (and
each person, if any, who controls the Company within the meaning of
the 1933 Act), and the Selling Stockholders, and each person, if
any, who controls a Selling Stockholder within the meaning of the
1933 Act, to the same extent as required by the foregoing indemnity
from the Company or the Selling Stockholders, as the case may be,
to each Underwriter, but only with respect to information relating
to such Underwriter furnished in writing to the Company through you
by or on behalf of it expressly for use in connection with the
registration statement as originally filed, the Registration
Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, beneath the heading "Underwriting"
or in a Blue Sky Application. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise
have to any such indemnified party.
(d) If any action or claim shall be brought or asserted
against any indemnified party or any person controlling an
indemnified party in respect of which indemnity may be sought from
the indemnifying party, such indemnified party or controlling
person shall promptly notify the indemnifying party in writing, and
the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all expenses; provided, however,
-----------------
that the failure so to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party
otherwise than under such paragraph, and further, shall only relieve
it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall
have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or such
controlling person unless (i) the employment thereof has been
specifically authorized by the indemnifying party in writing, (ii) the
indemnifying party has failed to assume the defense or to employ
counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties)
include both such indemnified party or such controlling person and the
indemnifying party and such indemnified party or such controlling
person shall have been advised by such counsel that there may be one
or more legal defenses available to it that are different from or in
addition to those available to the indemnifying party (in which
case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate
counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action
on behalf of such indemnified party or such controlling person).
Each indemnified party and each controlling person, as a condition
of such indemnity, shall use reasonable efforts to cooperate with
the indemnifying party in the defense of any such action or
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claim. The indemnifying party shall not be liable for any settlement of
any such action effected without its written consent, but if there
be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party and any such controlling person from and against
any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
An indemnifying party shall not, without the prior
written consent of each indemnified party, settle, compromise or
consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnity may
be sought hereunder (whether or not such indemnified party or any
person who controls such indemnified party within the meaning of
the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of
each such indemnified party reasonably satisfactory to each such
indemnified party and each such controlling person from all
liability arising out of such claim, action, suit or proceeding or
unless the indemnifying party shall confirm in a written agreement
of the indemnifying party to each indemnified party, that
notwithstanding any federal, state or common law, such settlement,
compromise or consent shall not alter the right of any indemnified
party or controlling person to indemnification or contribution as
provided in this Agreement.
(e) If the indemnification provided for in this Section
6 is unavailable or insufficient to hold harmless an indemnified
party under paragraphs (a), (b) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one
hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and
the Selling Stockholders bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Selling Stockholders on the
one hand and of the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or a Selling Stockholder or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this paragraph (e) were determined by pro
rata allocation (even if the Underwriters were treated as
33
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one entity for such purpose) or by any other method of allocation that
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses
referred to in the first sentence of this paragraph (e) shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph (e), no
Underwriter or Selling Stockholder shall be required to contribute
any amount in excess of the amount by which the total price at
which the Securities underwritten by such Underwriter and
distributed to the public were offered to the public, or the amount
sold by such Selling Stockholder, exceeds the amount of any damages
that such Underwriter or Selling Stockholder, as the case may be,
has otherwise been required to pay by reason of 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 paragraph (e), each person who
controls an Underwriter within the meaning of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each
person who controls the Company or a Selling Stockholder within the
meaning of the 1933 Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company
or Selling Stockholder shall have the same rights to contribution
as the Company or Selling Stockholder, subject in each case to the
preceding sentence. The Underwriters' obligations in this
paragraph (e) to contribute are several in proportion to their
respective underwriting obligations and not joint. The obligations
of the Company and the Selling Stockholders under this paragraph
(e) shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and the obligations of the
Underwriters under this paragraph (e) shall be in addition to any
liability that the respective Underwriters may otherwise have.
(f) The indemnity and contribution agreements contained
in this Section 6 and the representations and warranties of the
Company and the Selling Stockholders set forth in this Agreement
shall remain operative and in full force and effect, regardless of
(i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter or by or on behalf of the
Company or any Selling Stockholder, or such directors or officers
(or any person controlling the Company or any Selling Stockholder),
(ii) acceptance of any Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any
Underwriter or of the Company or any Selling Stockholder, such
directors or officers (or of any person controlling any
Underwriter, the Company or any Selling Stockholder) shall be
entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 6.
7. PAYMENT OF EXPENSES. The Company covenants and
-------------------
agrees that it will pay or cause to be paid (directly or by
proportionate reimbursement from certain Selling Stockholders)
34
35
all costs and expenses incident to the performance of the obligations
of the Company and the Selling Stockholders under this Agreement,
including:
(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, the Preliminary
Prospectus or Prospectuses, the Registration Statement and the
Prospectus and any amendments or supplements thereto (except,
however, for the actual costs incurred for affixation of broker
name labels to the Preliminary Prospectus at the request of The
Xxxxxxxx-Xxxxxxxx Company, Inc. and delivery and shipping costs for
same if not shipped to such company's principal Atlanta, Georgia
facility), and the copying, delivery and shipping of this Agreement
and any other underwriting documents (including, without
limitation, underwriters questionnaires, underwriters' powers of
attorney, agreements among underwriters and selected dealers
agreements), the certificates for the Securities and the
Preliminary and Final Blue Sky Memoranda and any supplements
thereto;
(b) all fees, expenses and disbursements of the
Company's counsel and accountants;
(c) all fees and expenses (including the fees and
disbursements of counsel for Underwriters) incurred in connection
with the qualification of the Securities under the securities or
blue sky laws of such jurisdictions as you may request, including
all filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary
and Final Blue Sky Memoranda and any supplements thereto;
(d) all fees and expenses (including the fees and
disbursements of counsel for Underwriters) incurred in connection
with filings made with the NASD or which are incident to any
required review by the NASD;
(e) any applicable fees and other expenses incurred in
connection with the listing of the Securities on the NNM;
(f) the cost of furnishing to you copies of the initial
registration statements, any Preliminary Prospectus, the
Registration Statement and the Prospectus and all amendments or
supplements thereto;
(g) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel for any
transfer agent or registrar;
(h) all costs and expenses (including stock transfer
taxes) incurred in connection with the printing, issuance and
delivery of the Securities to the several Underwriters;
(i) all travel, lodging and other expenses incurred by
the Company's officers and other Company personnel in making
presentations to prospective members of the underwriting group,
institutional investors and brokers and all other costs of
preparing and conducting such meetings and other informational
meetings; and
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(j) all other costs and expenses incident to the
performance of the obligations of the Company hereunder that are
not otherwise specifically provided for in this Section 7.
8. OFFERING BY THE UNDERWRITERS. After the Registration
----------------------------
Statement becomes effective or, if the Registration Statement is
already effective, after this Agreement becomes effective, the
Underwriters propose to offer the Firm Shares for sale to the
public upon the terms and conditions set forth in the Prospectus.
The Underwriters may from time to time thereafter reduce the public
offering price and change the other selling terms, provided the
proceeds to the Company and the Selling Stockholders shall not be
reduced as a result of such reduction or change.
The Underwriters may reserve and sell such of the
Securities purchased by the Underwriters as the Underwriters may
elect to dealers chosen by them (the "Selected Dealers") at the
public offering price set forth in the Prospectus less the
applicable Selected Dealers' concessions set forth therein, for re-
offering by Selected Dealers to the public at the public offering
price. The Underwriters may allow, and Selected Dealers may re-
allow, a concession set forth in the Prospectus to certain other
brokers and dealers.
9. TERMINATION. You shall have the right to terminate
-----------
this Agreement on behalf of the Underwriters at any time at or
prior to the Closing Date or, with respect to the Underwriters'
obligation to purchase the Option Shares, at any time at or prior
to the Option Closing Date, without liability on the part of any
Underwriter to the Company or a Selling Stockholder, if:
(a) the Company or a Selling Stockholder shall have
failed, refused, or been unable to perform any agreement on its
part to be performed under this Agreement, or any of the conditions
referred to in Section 5 shall not have been fulfilled, when and as
required by this Agreement;
(b) the Company or the Subsidiary shall have sustained
any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree which in the judgment of the Underwriters
materially impairs the investment quality of the Securities;
(c) there has been since the respective dates as of
which information is given in the Registration Statement or the
Prospectus, any materially adverse change in, or any development
which is reasonably likely to have a material adverse effect on,
the condition (financial or otherwise), earnings, affairs, business
or results of operations of the Company and the Subsidiary on a
consolidated basis, whether or not arising in the ordinary course
of business;
(d) there has occurred any outbreak of hostilities or
other calamity or crisis or material change in general economic,
political or financial conditions, or internal conditions, the
effect of which on the financial markets of the United States is
such as to make it, in your
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37
reasonable judgment, impracticable to market the Securities or enforce
contracts for the sale of the Securities;
(e) trading generally on the New York Stock Exchange,
the American Stock Exchange or the NNM shall have been suspended,
or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required,
by any of said exchanges or market system or by the Commission or
any other governmental authority;
(f) a banking moratorium shall have been declared by
either federal or Kansas authorities; or
(g) any action shall have been taken by any government
in respect of its monetary affairs which, in your reasonable
judgment, has a material adverse effect on the United States
securities markets.
If this Agreement shall be terminated pursuant to this
Section 9, the Company and the Selling Stockholders shall not then
be under any liability to any Underwriter except as provided in
Sections 6 and 7 hereof.
10. DEFAULT OF UNDERWRITERS. If any Underwriter or
-----------------------
Underwriters shall default in its or their obligations to purchase
Securities hereunder, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder,
to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however,
-----------------
that the non-defaulting Underwriters shall be under no obligation
to purchase such Securities if the aggregate number of Securities
to be purchased by such non-defaulting Underwriters shall exceed
110% of the aggregate underwriting commitments set forth in
Schedule I hereto, and provided further, that no non-defaulting
----------------
Underwriter shall be obligated to purchase Securities to the extent
that the number of such Securities is more than 110% of such
Underwriter's underwriting commitment set forth in Schedule I
hereto.
In the event that the non-defaulting Underwriters are not
obligated under the above paragraph to purchase the Securities
which the defaulting Underwriter or Underwriters agreed but failed
to purchase, the Underwriters may, in their discretion, arrange for
one or more of them or for another party or parties to purchase
such Securities on the terms contained herein. If within one
business day after such default the Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled
to a further period of one business day within which to procure
another party or parties satisfactory to the Underwriters to
purchase such Securities on such terms.
In the event that the Underwriters or the Company does
not arrange for the purchase of any Securities to which a default
relates as provided above, this Agreement shall be terminated.
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38
If the remaining Underwriters or substituted underwriters
are required hereby or agree to take up all or a part of the
Securities of a defaulting Underwriter or Underwriters as provided
in this Section 10, (i) you shall have the right to postpone the
Closing Date for a period of not more than five full business days,
in order to effect any changes that, in the opinion of counsel to
the Underwriters or the Company, may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file
any amendments to the Registration Statement or supplements to the
Prospectus which, in its opinion, may thereby be made necessary and
(ii) the respective numbers of Securities to be purchased by the
remaining Underwriters or substituted underwriters shall be taken
as the basis of their underwriting obligation for all purposes of
this Agreement. Nothing herein contained shall relieve any
defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on
the part of any non-defaulting Underwriter, the Company or any
Selling Stockholder, except for expenses to be paid or reimbursed
pursuant to Section 7 and except for the provisions of Section 6.
11. EFFECTIVE DATE OF AGREEMENT. If the Registration
---------------------------
Statement is not effective at the time of execution of this
Agreement, this Agreement shall become effective on the Effective
Date at the time the Commission declares the Registration Statement
effective. The Company shall immediately notify the Underwriters
when the Registration Statement becomes effective.
If the Registration Statement is effective at the time of
execution of this Agreement, this Agreement shall become effective
at the earlier of 10:00 a.m. Minneapolis time, on the first full
business day following the day on which this Agreement is executed,
or at such earlier time as the Underwriters shall release the
Securities for public offering. The Underwriters shall notify the
Company and the Selling Stockholders immediately after it has taken
any action which causes this Agreement to become effective.
Until such time as this Agreement shall have become
effective, it may be terminated by the Company, by notifying you,
or by each and any of you, by notifying the Company, except that
the provisions of Sections 6 and 7 shall at all times be effective.
12. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
-----------------------------------------------------
DELIVERY. The representations, warranties, indemnities,
--------
agreements and other statements of the Company and its officers and
the Selling Stockholders set forth in or made pursuant to this
Agreement and the agreements of the Underwriters contained in
Section 6 hereof shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the
Company or any Selling Stockholder or controlling persons of the
Company or any Selling Stockholder, or by or on behalf of the
Underwriters or controlling persons of any Underwriters or any
termination or cancellation of this Agreement and shall survive
delivery of and payment for the Securities.
13. NOTICES. Except as otherwise provided in this
-------
Agreement, all notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered
by hand, mailed by registered or certified mail, return receipt
requested, or transmitted by any standard form of telecommunication
and confirmed. Notices to the Company shall be
38
39
sent to 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000, Attention: Xxxx X. Xxxxx,
(with a copy to Xxxxxxx Mag & Fizzell, P.C., 0000 Xxxxxx, Xxxxx 0000,
Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, Esq.);
notices to a Selling Stockholder shall be sent to the address set
forth for such Selling Stockholder on Schedule II; and notices to
the Underwriters shall be sent to: (a) Xxxxx Xxxxxxx Inc., Xxxxx
Xxxxxxx Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxxxx, (b) The Xxxxxxxx-Xxxxxxxx
Company, Inc., Atlanta Financial Center, 0000 Xxxxxxxxx Xxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxxx X. Xxxxxxxx, and (c)
Xxxxxx, Xxxxxxxx & Company, Incorporated, 000 Xxxxx Xxxxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx (in each case
with a copy to Xxxxx Xxxx LLP, 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxxxxx Xxxx, Xxxxxx 00000, Attention: Xxxxxx X. Xxx Xxxx, Esq.).
14. PARTIES. The Agreement herein set forth is made
-------
solely for the benefit of the Underwriters, the Company and the
Selling Stockholders and, to the extent expressed, directors and
officers of the Company, any person controlling the Company, any
Selling Stockholder or any Underwriter, and their respective
successors and assigns. No other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors
and assigns" shall not include any purchaser, in his status as such
purchaser, from any Underwriter of the Securities.
15. GOVERNING LAW. This Agreement shall be governed by
-------------
the laws of the State of Minnesota, without giving effect to the
choice of law or conflicts of law principles thereof.
16. COUNTERPARTS. This Agreement may be executed in one
------------
or more counterparts, and when a counterpart has been executed by
each party hereto all such counterparts taken together shall
constitute one and the same Agreement.
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If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us a counterpart
hereof, whereupon this shall become a binding agreement between the
Company and you in accordance with its terms.
Very truly yours,
XXXXXXXX-ALCO STORES, INC.
By: ----------------------------------------
Name:
Title:
SELLING STOCKHOLDERS:
By: ----------------------------------------
Name: Xxxx X. Xxxxx
By: ----------------------------------------
Name: Xxxxxx X. Xxxxxx
By: ----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Attorneys-in-Fact for each of the
Selling Stockholders referred to in
Schedule II hereto
CONFIRMED AND ACCEPTED,
as of the date first above written.
XXXXX XXXXXXX INC.
By: ----------------------------------------
Name:
Title:
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
By: ----------------------------------------
Name:
Title:
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
By: ----------------------------------------
Name:
Title:
41
SCHEDULE I
UNDERWRITER PARTICIPATION
----------- -------------
Xxxxx Xxxxxxx Inc. 000
Xxxxxx, Xxxxxxxx & Company, Incorporated 000
The Xxxxxxxx-Xxxxxxxx Company, Inc. 000
TOTAL UNDERWRITERS (3) 1,400,000
42
SCHEDULE II
SELLING STOCKHOLDER FIRM SHARES
-------------------------------
Name and Address of Number of Firm
Selling Stockholder Shares To Be Sold
------------------ -----------------
Kansas Public Employees Retirement System 171,337
by KDF, a Massachusetts Nominee
c/o Pacholder Associates, Inc.
Bank One Towers
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Xxxxxxxx-ALCO Profit Sharing Plan & Trust 228,663
-------
by Boatmen's Trust Company, as Trustee
10th and Baltimore
X.X. Xxx 000000
Xxxxxx Xxxx, Xxxxxxxx 00000
Total . . . . . . . . . . . . . . . . . . . . . . . . . 400,000
=======
43
SCHEDULE III
Officers
--------
Xxxx X. Xxxxx
Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. XxXxxxxxx
Xxxxxx X. Xxxxxx
Xxx X. Xxxxxxxx, Xx.
Xxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxx X. Xxxxx
Directors Personally Holding Shares as of September 3, 1996
-----------------------------------------------------------
Xxxxxx X. Xxxxxx
