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EXHIBIT 1
6,520,222 SHARES
DBT ONLINE, INC.
COMMON STOCK ($.10 PAR VALUE)
UNDERWRITING AGREEMENT
[ ], 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
INVEMED ASSOCIATES LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. DBT Online, Inc., a Pennsylvania corporation
("Company"), proposes to issue and sell 1,000,000 shares of its common stock,
$.10 par value ("Securities"), and certain of the shareholders listed in
Schedule A hereto (all of the shareholders listed in Schedule A being
hereinafter referred to as the "Selling Shareholders") propose severally to
sell an aggregate of 4,669,758 outstanding shares of the Securities (such
5,669,758 Securities being hereinafter referred to as the "Firm Securities").
Certain of the Selling Shareholders (the "Optional Selling Shareholders") also
propose to sell to the Underwriters, at the option of the Underwriters, an
amount of not more 850,464 additional shares of the Company's securities (such
850,464 additional shares being hereinafter referred to as the "Optional
Securities"). The Firm Securities and the Optional Securities are herein
collectively referred to as the "Offered Securities". The Company and the
Selling Shareholders hereby agree with the several Underwriters named in
Schedule B ("Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Shareholders.
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(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-85689) relating to the
Offered Securities, including a form of prospectus, has been filed
with the Securities and Exchange Commission ("Commission") and either
(A) has been declared effective under the Securities Act of 1933, as
amended ("Act"), and is not proposed to be amended or (B) is proposed
to be amended by amendment or post-effective amendment. If such
registration statement (the "initial registration statement") has been
declared effective, either (A) an additional registration statement
(the "additional registration statement") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such
filing the Offered Securities will all have been duly registered under
the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose
to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in the case
of the additional registration statement, Rule 462(b). For purposes of
this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement
means (A) if the Company has advised the Representatives that it does
not propose to amend such registration statement, the date and time as
of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c), or (B) if the Company has advised the Representatives that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such
registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
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prior to the execution and delivery of this Agreement but the Company
has advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration
statement means the date and time as of which such registration
statement is filed and becomes effective pursuant to Rule 462(b).
"Effective Date" with respect to the initial registration statement or
the additional registration statement (if any) means the date of the
Effective Time thereof. The initial registration statement, as amended
at its Effective Time, including all material incorporated by
reference therein, including all information contained in the
additional registration statement (if any) and deemed to be a part of
the initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General Instructions
of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of
its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the
Act, is hereinafter referred to as the "Initial Registration
Statement". The additional registration statement, as amended at its
Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all
information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "Prospectus". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act. No stop
order suspending the effectiveness of such Registration Statement or
any part thereof has been issued and no proceeding for that purpose
has been instituted or, to the best knowledge of the Company,
threatened by the Commission.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(A) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("Rules and Regulations") and did not include 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
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therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and (C) on the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conforms, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, and on
each Closing Date (as hereinafter defined) each Registration Statement
and the Prospectus will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all material respects to the requirements
of the Act and the Rules and Regulations, neither of such documents
will include any untrue statement of a material fact or will omit to
state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading, and
no Additional Registration Statement has been or will be filed and (B)
on each Closing Date, the Initial Registration Statement and the
Prospectus will conform in all material respects to the requirements
of the Act and the Rules and Regulations, neither of such documents
will include any untrue statement of a material fact or will omit to
state any material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in light
of the circumstances under which they were made) not misleading, and
no Additional Registration Statement has been or will be filed. The
two preceding sentences do not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(c).
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(iii) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the
Commonwealth of Pennsylvania, with power and authority (corporate and
other) to own, lease and operate its properties and conduct its
business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership, leasing or operation
of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the condition (financial or other),
business, prospects, results of operations or general affairs of the
Company and its subsidiaries taken as a whole ("Material Adverse
Effect"). The only jurisdictions in which the Company's ownership,
leasing or operation of property or the conduct of its business
requires qualification to do business as a foreign corporation in good
standing are Florida and Nevada.
(iv) The Company's only subsidiaries are listed on Exhibit 1
hereto. Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Prospectus; and each
subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership, leasing or operation of property or the conduct
of its business requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect; all of
the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid
and nonassessable; and the capital stock of each subsidiary is owned
by the Company, directly or through the Company's subsidiaries, free
and clear of any mortgage, pledge, lien, security interest, claim,
encumbrance or defect of any kind.
(v) The Offered Securities to be sold by the Company have
been duly authorized and will be, when issued and paid for in
accordance with this Agreement, validly issued, fully paid and
nonassessable and no further approval or authority of the shareholders
or the Board of Directors of the Company is or will be required for
the issuance and sale of the Offered Securities to be sold by the
Company as contemplated by this Agreement; the Offered Securities to
be sold by the Selling Shareholders and all other outstanding shares
of capital stock of the Company have been duly authorized, are validly
issued, fully paid and nonassessable and have been issued in
compliance with applicable federal and state securities laws; the
authorized and outstanding capital stock of the Company conforms to
the descriptions thereof contained in the Prospectus under the
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captions "Capitalization" and "Description of Capital Stock"; and the
shareholders of the Company have no preemptive or similar rights with
respect to the Offered Securities or any other securities of the
Company.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
third party that would give rise to a valid claim against the Company
or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with the transactions contemplated by this
Agreement.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
third party (whether acting in an individual, fiduciary or other
capacity) granting such third party the right to require the Company
to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such third party or
to require the Company to include such securities in the Offered
Securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(viii) On the date each Registration Statement was first
filed with the Commission, and at the Effective Time, the Company met
the conditions for use of Form S-3 under the Act and the Rules and
Regulations.
(ix) The Securities are listed on the New York Stock
Exchange. The Offered Securities to be sold by the Company have been
accepted for listing on the New York Stock Exchange, subject to
official notice of issuance.
(x) Except as disclosed in the Prospectus, no consent,
approval, authorization, order, registration or qualification of, or
filing with, any third party (whether acting in an individual,
fiduciary or other capacity) or any governmental, regulatory or
accrediting agency or body or any court is required for the
consummation by the Company of the transactions contemplated by this
Agreement in connection with the issuance and sale of the Offered
Securities, except such as have been obtained and made under the Act
and such as may be required under state and foreign securities laws in
connection with the issuance and sale of the Offered Securities.
(xi) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein contemplated
have been duly authorized by all necessary corporate action on the
part of the Company and, to the extent required, its shareholders and
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do not and will not conflict with or result in a breach or violation
of any of the terms and provisions of, and do not and will not
constitute a default (or an event which with the giving of notice or
the lapse of time or both could reasonably be likely to constitute a
default) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets or properties of the Company or
any of its subsidiaries (including any individual institution within
such entity) under (A) the charter, by-laws or other organizational
documents of the Company or any subsidiary, (B) any statute, any rule,
regulation, requirement, order or decree of any governmental,
regulatory or accrediting agency or body or any court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any
of their properties, assets or operations, or (C) any indenture,
mortgage, loan or credit agreement, note, lease, permit, license or
other agreement or instrument to which the Company or any subsidiary
is a party or by which the Company or any subsidiary is bound or to
which any of the properties, assets or operations of the Company or
any subsidiary is subject, except, in the case of clauses (B) and (C),
for such breaches or violations which would not, individually or in
the aggregate, have a Material Adverse Effect.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiii) The Company and its subsidiaries have good and
marketable title to all real properties and all other properties and
assets owned by them, in each case free and clear of any mortgage,
pledge, lien, security interest, claim or other encumbrance or defect
that could individually or in the aggregate materially affect the
value thereof, materially interfere with the use made or to be made
thereof by them, or have a Material Adverse Effect; and the Company
and its subsidiaries hold any leased real or personal property under
valid, subsisting and enforceable leases or subleases with no
exceptions that would materially interfere with the use made or to be
made thereof by them; neither the Company nor any subsidiary is in
default under any such lease or sublease; and no material claim of any
sort has been asserted by anyone adverse to the rights of the Company
or any subsidiary under any such lease or sublease or affecting or
questioning the right of such entity to the continued possession of
the leased or subleased properties under any such lease or sublease,
except for such claims which would not, individually or in the
aggregate, have a Material Adverse Effect.
(xiv) The Company and its subsidiaries possess all approvals,
authorizations, certificates, permits and licenses (collectively,
"Licenses") issued by appropriate governmental, regulatory or
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accrediting agencies or bodies as are necessary to own, lease or
operate their properties and conduct the business now operated by them
as described in the Prospectus, and all such Licenses are in full
force and effect. The Company and its subsidiaries are in substantial
compliance with their respective obligations under such Licenses and
neither the Company nor any of its subsidiaries has received notice of
any proceedings, investigations or inquiries (or is aware of any facts
that would form a reasonable basis for any proceedings, investigations
or inquiries) relating to the revocation, modification, termination or
suspension of any such License or impairment of the rights of the
Company or such subsidiaries thereunder that, if determined adversely
to the Company or any of its subsidiaries, could individually or in
the aggregate have a Material Adverse Effect.
(xv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the best knowledge of the Company, is
imminent that could reasonably be likely to have, individually or in
the aggregate, a Material Adverse Effect.
(xvi) The Company and its subsidiaries are the exclusive
owners of or have obtained valid licenses for all trademarks,
trademark registrations, service marks, service xxxx registrations,
trade names, copyrights, copyright registrations, patents, inventions,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, computer
software, systems or procedures), confidential information and any
other intellectual property or rights described in the Prospectus as
being owned, licensed or used by the Company or any of its
subsidiaries or that are necessary for the conduct of their businesses
as described in the Prospectus (collectively, "Intellectual Property")
and the Company is not aware of any claim (or of any facts that would
form a reasonable basis for any claim) to the contrary or any
challenge by any third party to the rights of the Company or any of
its subsidiaries with respect to any such Intellectual Property or to
the validity or scope of any such Intellectual Property and neither
the Company nor any of its subsidiaries has any claim against a third
party with respect to the infringement by such third party to any such
Intellectual Property that, if determined adversely to the Company or
any of its subsidiaries, could individually or in the aggregate have a
Material Adverse Effect. The Company and its subsidiaries have a good
faith belief in the distinctiveness and enforceability of all
trademarks, service marks and trade names and in the validity and
enforceability of all patents included in the Intellectual Property.
The Intellectual Property includes all intellectual property and
similar rights necessary for the conduct of the business of the
Company as now conducted as described in the Prospectus or as planned
to be conducted.
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(xvii) To the knowledge of the Company, the properties,
assets and operations of the Company and its subsidiaries are in
compliance with all applicable federal, state, local and foreign
environmental laws, rules and regulations, orders, decrees, judgments,
permits and licenses relating to public and worker health and safety,
and to the protection and clean-up of the natural environment and to
the protection or preservation of natural resources and of plant and
animal species, and activities or conditions related thereto,
including, without limitation, those relating to the production,
extraction, processing, manufacturing, generation, handling, disposal,
transportation or release of hazardous materials (collectively,
"Environmental Laws"). With respect to such properties, assets and
operations (including any previously owned, leased or operated
properties, assets or operations with respect to such prior period of
ownership or operation), there are no past, present or, to the best
knowledge of the Company, reasonably anticipated future events,
conditions, circumstances, activities, practices, incidents, actions
or plans of the Company or any of its subsidiaries that may interfere
with or prevent compliance or continued compliance by the Company and
its subsidiaries with applicable Environmental Laws. To the knowledge
of the Company, neither the Company nor any of its subsidiaries is the
subject of any federal, state, local or foreign investigation, and
neither the Company nor any of its subsidiaries has received any
notice or claim (or is aware of any facts that would be expected to
result in any such claim), nor entered into any negotiations or
agreements with any third party, relating to any liability or
potential liability or remedial action or potential remedial action
under Environmental Laws, nor are there any pending, reasonably
anticipated or, to the best knowledge of the Company, threatened
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or their properties, assets or operations in
connection with any such Environmental Laws. The term "hazardous
materials" shall mean those substances that are regulated by or form
the basis for liability under any applicable Environmental Laws.
(xviii) Except as disclosed in the Prospectus, there are no
pending actions, suits, proceedings or investigations against or, to
the knowledge of the Company, affecting the Company or any of its
subsidiaries or any of their respective properties, assets or
operations that, if determined adversely to the Company or any of its
subsidiaries, could individually or in the aggregate have a Material
Adverse Effect, or could materially and adversely affect the ability
of the Company to perform its obligations under this Agreement; and no
such actions, suits, proceedings or investigations are, to the best
knowledge of the Company, threatened or contemplated.
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(xix) The historical financial statements of each of the
Company and the Online Public Records Business (a Division of
Information America, Inc., including the XxxxX.xxx and Informed
product lines) (the "Online Public Records Business") and related
schedules and notes included in each Registration Statement and the
Prospectus (including, without limitation, the financial statements
incorporated by reference therein) comply with the requirements of the
Act and the Rules and Regulations, present fairly the financial
position of the Company and its consolidated subsidiaries or the
Online Public Records Business, as applicable, as of the dates shown
and the results of operations and cash flows of the Company and its
consolidated subsidiaries or the Online Public Records Business, as
applicable, for the periods shown, and such financial statements have
been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis. The
other financial information and statistical data set forth in the
Prospectus present fairly, in all material respects, the information
shown therein and have been compiled on a basis consistent with that
of the audited consolidated financial statements included in the
Registration Statements. The pro forma financial statements and other
pro forma financial information included in the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X of the Rules and Regulations, have been properly
compiled on the pro forma basis described therein and, in the opinion
of the Company, the assumptions used provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events reflected therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(xx) Since the dates as of which information is given in each
Registration Statement and the Prospectus, (A) neither the Company nor
any of its subsidiaries has incurred any material liability or
obligation (indirect, direct or contingent) or entered into any
material, verbal or written agreement or other transaction that is not
in the ordinary course of business or that could result in a material
reduction in the future earnings of the Company; (B) there has been no
material change, except as contemplated by the Prospectus, in the
indebtedness of the Company, no change in the capital stock of the
Company and no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock; and (C) there
has been no material adverse change, nor, to the knowledge of the
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Company, any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
prospects or results of operations or general affairs of the Company
and its subsidiaries taken as a whole.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be, an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(xxii) Except as set forth in the Prospectus, there are no
outstanding (A) securities or obligations of the Company convertible
into or exchangeable for any capital stock of the Company, (B)
warrants, rights or options to subscribe for or purchase from the
Company any such capital stock or any such convertible or exchangeable
securities or obligations or (C) obligations of the Company to issue
such shares, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or obligations.
(xxiii) Each "employee benefit plan" within the meaning of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), in which employees of the Company or any subsidiary
participate or as to which the Company or any subsidiary has any
liability (the "ERISA Plans") is, to the knowledge of the Company, in
compliance with the applicable provisions of ERISA and the Internal
Revenue Code of 1986, as amended (the "Code") including, in the case
of any ERISA Plan intended to be qualified under Code Section 401(a),
the provisions of Code Section 401(a). A determination letter has been
received from the IRS as to each ERISA Plan that is intended to be
qualified under Code Section 401(a) and neither the Company nor any of
its subsidiaries is aware of any circumstances likely to result in the
revocation of any such determination letter. To the knowledge of the
Company, neither the Company nor any subsidiary has any liability,
with respect to the ERISA Plans or otherwise and whether or not
contingent, under Title IV of ERISA, nor does the Company expect that
any such liability will be incurred. Neither the Company nor any
subsidiary has any liability, whether or not contingent, with respect
to any ERISA Plan that provides post-retirement welfare benefits. The
descriptions of the Company's stock option, stock bonus and other
stock plans or arrangements, and of the options or other rights
granted and exercised thereunder, set forth in the Prospectus are
accurate and complete in all material respects.
(xxiv) The Company and its subsidiaries have filed on a
timely basis all federal, state, local and foreign tax returns
required to be filed, such returns are complete and correct, and all
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taxes shown by such returns or otherwise assessed that are due and
payable have been paid, except such taxes as are being contested in
good faith and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Company and its
subsidiaries in respect of any tax liability for any year not finally
determined are, to the knowledge of the Company, adequate to meet
assessments or reassessments, if any, for additional taxes; and there
has been no tax deficiency asserted and the Company is not aware of
any facts that would form a reasonable basis for the assertion of any
tax deficiency against the Company or any of its subsidiaries that
could individually or in the aggregate have a Material Adverse Effect.
(xxv) The Company and its subsidiaries maintain a system of
internal accounting controls that the Company believes are sufficient
for purposes of the prevention or detection of errors or
irregularities in amounts that could be expected to be material to the
Company's consolidated financial statements and the recording of
transactions so as to permit the preparation of such consolidated
financial statements in conformity with generally accepted accounting
principles.
(xxvi) Neither the Company nor any of its subsidiaries is in
violation of (A) its charter, by-laws or other organizational
documents or (B) any applicable law, ordinance, administrative or
governmental or regulatory rule, regulation or any order, decree or
judgment of any court or governmental, regulatory or accrediting
agency or body having jurisdiction over the Company or any subsidiary,
except in the case of clause (B) for any such violations which would
not, individually or in the aggregate, have a Material Adverse Effect;
and no event of default or event that, but for the giving of notice or
the lapse of time or both, would constitute an event of default
exists, or upon consummation of the transactions contemplated by this
Agreement or the Prospectus, including, without limitation, the use of
proceeds from the sale of the Offered Securities in the manner
contemplated by the description under the caption "Use of Proceeds"
contained in the Prospectus will exist, under any indenture, mortgage,
loan or credit agreement, note, lease, permit, license or other
agreement or instrument to which the Company or any subsidiary is a
party or by which the Company or any subsidiary is bound or to which
any of the properties, assets or operations of the Company or any
subsidiary is subject. There are no statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statements or the Prospectus or to be filed as exhibits
to the Registration Statements that are not described or filed as
required.
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(xxvii) The Company and its subsidiaries carry or are
entitled to the benefits of insurance in such amounts as are customary
in the businesses in which they are engaged, and all such insurance is
in full force and effect.
(xxviii) The Company has not taken and will not take,
directly or indirectly, any action designed to or that could cause or
result in stabilization or manipulation of the price of the Offered
Securities to facilitate the sale or resale of the Offered Securities.
(b) Each Selling Shareholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Shareholder has (except to the extent that
1,275,944 Offered Securities owned by Xxxx X. Xxxxx are subject to a
security interest in favor of SunTrust Bank, South Florida, N.A.
pursuant to that certain loan agreement dated October 16, 1998 among
Xxxx X. Xxxxx, Xxxxx Investment Partners and SunTrust Bank, South
Florida, N.A.) and on each Closing Date hereinafter mentioned will
have valid and unencumbered title to the Offered Securities to be
delivered by such Selling Shareholder on such Closing Date and full
right, power and authority to enter into this Agreement and the
Custody Agreement (the "Custody Agreement") and Irrevocable Power of
Attorney (the "Power of Attorney") entered into by such Selling
Shareholder in connection with the transactions contemplated hereby
and to sell, assign, transfer and deliver the Offered Securities to be
delivered by such Selling Shareholder on such Closing Date hereunder;
and upon the delivery of and payment for the Offered Securities on
each Closing Date hereunder the several Underwriters will acquire
valid and unencumbered title to the Offered Securities to be delivered
by such Selling Shareholder on such Closing Date.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(A) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the Rules and Regulations and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration
Statement conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations did not include,
or will not include, any untrue statement of a material fact and did
not omit, or will not omit, to state any material fact required to be
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stated therein or necessary to make the statements therein not
misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, and on
each Closing Date, each Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading and (B) on each Closing
Date, the Initial Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act and
the Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading. The two preceding sentences apply only to the extent
that any statements in or omissions from a Registration Statement or
the Prospectus are based on written information furnished to the
Company by such Selling Shareholder specifically for use therein.
(iii) This Agreement, the Custody Agreement and Power of
Attorney have each been duly authorized, executed and delivered by or
on behalf of such Selling Shareholder and this Agreement, the Custody
Agreement and Power of Attorney each constitute the legal, valid and
binding obligations of such Selling Shareholder enforceable against
such Selling Shareholder in accordance with their respective terms.
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(iv) No consent, approval, authorization, order, registration
or qualification of, or filing with, any third party (whether acting
in an individual, fiduciary or other capacity) or any governmental or
regulatory agency or body or court is required to be obtained or made
by such Selling Shareholder for the consummation of the transactions
contemplated by this Agreement, the Custody Agreement and Power of
Attorney in connection with the sale of the Offered Securities by such
Selling Shareholder, except such as have been obtained and made under
the Act and such as may be required under state and foreign securities
laws.
(v) The execution, delivery and performance by such Selling
Shareholder of this Agreement, the Custody Agreement and Power of
Attorney and the sale of the Offered Securities being sold by such
Selling Shareholder do not and will not conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute or will constitute a default (or an event which with the
giving of notice or the lapse of time or both could reasonably be
likely to constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon the Offered
Securities to be sold by such Selling Shareholder under (A) any
statute, any rule, regulation, requirement, order or decree of any
governmental or regulatory agency or body, or any court, domestic or
foreign, having jurisdiction over such Selling Shareholder or any of
his or her properties, assets or operations or (B) any indenture,
mortgage, loan or credit agreement, note, lease, permit, license or
other agreement or instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder is bound or to which any of
the properties, assets or operations of such Selling Shareholder is
subject, and such Selling Shareholder has full power and authority to
authorize, issue and sell the Offered Securities being sold by such
Selling Shareholder as contemplated by this Agreement.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Shareholder and any third party that would give rise to a valid claim
against such Selling Shareholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with the
transactions contemplated by this Agreement, the Custody Agreement and
Power of Attorney.
(vii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to or that could
cause or result in stabilization or manipulation of the price of the
Offered Securities to facilitate the sale or resale of the Offered
Securities.
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3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Shareholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the
Company and each Selling Shareholder, at a purchase price of $[ ] per share,
that number of Firm Securities (rounded up or down, as determined by Credit
Suisse First Boston Corporation ("CSFBC") in its discretion, in order to avoid
fractions) obtained by multiplying 1,000,000 Firm Securities in the case of the
Company and the number of Firm Securities set forth opposite the name of such
Selling Shareholder in Schedule A hereto, in the case of each Selling
Shareholder, in each case by a fraction the numerator of which is the number of
Firm Securities set forth opposite the name of such Underwriter in Schedule B
hereto and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Shareholders hereunder have been placed in custody, for delivery
under this Agreement, under the Custody Agreements made with [ ], as custodian
("Custodian"). Each Selling Shareholder agrees that the shares represented by
the certificates held in custody for the Selling Shareholders under such
Custody Agreements are subject to the interests of the Underwriters hereunder,
that the arrangements made by the Selling Shareholders for such custody are to
that extent irrevocable, and that the obligations of the Selling Shareholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Shareholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Shareholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of
whether or not the Custodian shall have received notice of such death or other
event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by wire transfer to an account at a
bank acceptable to CSFBC drawn to the order of the Company in the case of
1,000,000 shares of Firm Securities and to the order of the Custodian in the
case of 4,669,758 shares of Firm Securities, at the office of Xxxxx Xxxxxxxxxx,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York
time, on [ ], 1999, or at such other time not later than seven full business
days thereafter as CSFBC and the Company determine, such time being herein
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referred to as the "First Closing Date". The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the office of Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 at least 24 hours prior to
the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Optional Selling Shareholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per Security to
be paid for the Firm Securities. With respect to the first 128,986 Optional
Securities purchased by the Underwriters, Xxxx X. Xxxx and Xxxxxx Xxxxxxx will
sell, severally and not jointly, to the Underwriters the respective numbers of
Optional Securities obtained by multiplying the number of Optional Securities
specified in such notice by a fraction the numerator of which is the number of
shares set forth opposite the name of Xxxx Xxxx or Xxxxxx Xxxxxxx, as
applicable, in Schedule A hereto under the caption "Number of Optional
Securities to be Sold" and the denominator of which is 128,986 (subject to
adjustment by CSFBC to eliminate fractions). With respect to the remainder of
the Optional Securities purchased by the Underwriters, Xxxxxxx X. Xxxxx will
sell to the Underwriters the numbers of Optional Securities specified in such
notice. Such Optional Securities shall be purchased from each Optional Selling
Shareholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by CSFBC to the
Company and the Optional Selling Shareholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment
of the purchase price therefor in Federal (same day) funds by wire transfer to
an account of the Custodian at a bank acceptable to CSFBC, at the office of
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Xxxxx Xxxxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered
in such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the
office of CSFBC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, at a
reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Shareholders. The
Company agrees with the several Underwriters and the Selling Shareholders and,
with respect to the last sentence of clause (j) and clauses (k) and (l) below,
the Selling Shareholders agree with the Company and the several Underwriters
that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file the Prospectus with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and if
consented to by CSFBC, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement. The Company will
advise CSFBC promptly of any such filing pursuant to Rule 424(b). If
the Effective Time of the Initial Registration Statement is prior to
the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the
Offered Securities under the Act but the Effective Time thereof has
not occurred as of such execution and delivery, the Company will file
the additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and
in accordance with Rule 462(b) on or prior to 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, on or prior to the
time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented
to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or
supplementation without CSFBC's prior consent, which consent shall not
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19
be unreasonably withheld; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if the
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission
of any stop order proceedings in respect of a Registration Statement
and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs or a
condition exists as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company will promptly notify
CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance. Neither CSFBC's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of
the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (two of which will be signed and will
include all exhibits and signed accountant's reports of Deloitte &
Touche LLP, PricewaterhouseCoopers LLP and Xxxxxx & Xxxxx, each
related preliminary prospectus, and, so long as a prospectus relating
to the Offered Securities is required to be delivered under the Act in
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20
connection with sales by any Underwriter or dealer, the Prospectus and
all amendments and supplements to such documents, in each case in such
quantities as CSFBC reasonably requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement. All other
such documents shall be so furnished as soon as available. The Company
will pay the expenses of printing and distributing to the Underwriters
all such documents.
(f) During the period of five years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to shareholders for such
year; and the Company will furnish to the Representatives (i) as soon
as available, a copy of each report and any definitive proxy statement
of the Company filed with the Commission under the Securities Exchange
Act of 1934, as amended, or mailed to shareholders and (ii) from time
to time, such other information concerning the Company as CSFBC may
reasonably request.
(g) For a period of 100 days after the date of the public
offering of the Offered Securities, the Company will not, directly or
indirectly, offer, sell, contract to sell, pledge or otherwise dispose
of, or file or cause to be filed with the Commission a registration
statement under the Act relating to, any shares of its Securities or
securities or other rights convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposal or filing,
without the prior written consent of CSFBC, except for (i) issuances
of securities by the Company pursuant to employee stock option plans
or dividend reinvestment plans either in effect as of the date hereof
or as may be approved subsequent to the date hereof by the Board of
Directors of the Company or (ii) the exercise of warrants outstanding
on the date hereof.
(h) The Company will use its reasonable best efforts to cause
the officers, directors and shareholders listed on Exhibit 2 to agree
that each such person will not, directly or indirectly, for a period
of 100 days after the date of the public offering of the Offered
Securities, offer, sell, contract to sell, pledge or otherwise dispose
of, or request or demand the filing with the Commission of a
registration statement under the Act relating to any shares of the
Securities of the Company or securities or other rights convertible
into or exchangeable or exercisable for any shares of Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC.
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(i) The Company will apply the net proceeds of the Offering
received by the Company contemplated hereunder in the manner set forth
in the Prospectus under the caption "Use of Proceeds".
(j) The Company and each Selling Shareholder agrees with the
several Underwriters that (i) Xxxx Xxxxx will pay for any filing fees
and other expenses (including fees and disbursements of counsel) in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto, for the filing fee incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the National Association of Securities
Dealers, Inc. of the Offered Securities, and for expenses incurred in
printing and distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) or related
documents and all other legal fees of the Company (up to a maximum
amount for legal fees of $200,000), except that the Company will pay
its pro rata share of such fees and expenses; and (ii) the Company
will pay all other expenses incident to the performance of the
obligations of the Company and the Selling Shareholders under this
Agreement and for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities. Each Selling Shareholder agrees to pay (i) for any
transfer taxes on the sale by such Selling Shareholder of such Selling
Shareholder's Offered Securities to the Underwriters and (ii) all
legal and other expenses incurred directly by such Selling Shareholder
in connection with the Offering.
(k) Each Selling Shareholder agrees to deliver to CSFBC
(Attention: Transactions Advisory Group) on or prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified
by Treasury Department regulations in lieu thereof).
(l) Each Selling Shareholder agrees, for a period of 100 days
after the date of the public offering of the Offered Securities, not
to, directly or indirectly, offer, sell, contract to sell, pledge or
otherwise dispose of, or request or demand the filing with the
Commission of a registration statement under the Act relating to any
shares of the Securities of the Company or securities or other rights
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convertible into or exchangeable or exercisable for any shares of
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent
of CSFBC.
(m) The Company will use its best efforts to effect the
listing of the Offered Securities on the New York Stock Exchange
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Shareholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Shareholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to
the registration statement to be filed shortly prior to such Effective
Time), of Deloitte & Touche LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements or in the material incorporated by reference into
the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and
the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements examined
by them and included in the Registration Statements or in the
material incorporated by reference into the Prospectus;
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23
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, a reading of the minutes
of all meetings of the shareholders and directors (including
each committee thereof) of the Company and its subsidiaries,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements
included in the Registration Statements and the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements for them
to be in conformity with generally accepted
accounting principles;
(B) the information set forth in the
Prospectus under the captions "Summary Financial
Data" and "Selected Consolidated Financial and Other
Data" does not agree with the amounts set forth in
the unaudited consolidated financial statements or
the audited consolidated financial statements, as
the case may be, from which it was derived or were
not determined on a basis substantially consistent
with that of the corresponding amounts in the
unaudited statements or the audited statements
included in the Registration Statements and the
Prospectus;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three days
prior to the date of this Agreement, there was any
decrease in stockholders' equity or change in the
capital stock or any increase in short-term
indebtedness or long-term debt of the Company and
its consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
net current assets or net assets, as compared with
amounts shown on the latest balance sheet included
in the Registration Statements and the Prospectus;
or
(D) for the period from the closing date of
the latest statement of operations included in the
Registration Statements and the Prospectus to the
closing date of the latest available statement of
operations read by such accountants there were any
decreases, as compared with the corresponding period
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24
of the previous year and with the period of
corresponding length ended the date of the latest
statement of operations included in the Registration
Statements and the Prospectus, in consolidated net
revenues and royalties or consolidated net income,
or in the total or per share amounts of consolidated
net income or income from operations, or any
increases or decreases, as the case may be, in other
items specified by the Representatives;
except in all cases set forth in clauses (C) and (D) above
for changes, increases or decreases which the Prospectus
discloses have occurred;
(iv) they have proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the unaudited pro forma financial statements
included in the Registration Statements and the Prospectus
and on the basis of the foregoing procedure and a reading of
the unaudited pro forma financial statements included in the
Registration Statements and the Prospectus, a reading of the
minutes of all meetings of the stockholders and directors
(including each committee thereof) of the Company and its
subsidiaries, inquiries of officials of the Company who have
responsibility for financial and accounting matters about (i)
the basis for the determination of the pro forma adjustments
and (ii) whether the unaudited pro forma consolidated
statement of operations complies as to form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X under the Act and other specified
procedures, nothing came to their attention that caused them
to believe that the pro forma financial statements included
in the Registration Statements and the Prospectus do not
comply in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X under
the Act or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of such financial statements or on the pro forma basis
described in the notes thereto;
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration
Statements and the Prospectus (in each case to the extent
that such dollar amounts, percentages, numerical data and
other financial information are derived from the general
accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting
system or are derived from such records by analysis or
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25
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such
dollar amounts, percentages, numerical data and other
financial information to be in agreement with such results.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time; (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time; and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements. All financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statements for
purposes of this subsection.
(b) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to
the registration statement to be filed shortly prior to such Effective
Time), of PricewaterhouseCoopers LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and
schedules of the Online Public Records Business examined by
them and included in the Registration Statements comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards Xx. 00, Xxxxxxx Xxxxxxxxx
00
00
Information, on the unaudited financial statements of the
Online Public Records Business examined by them and included
in the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Online Public Records Business,
inquiries of officials of the Online Public Records Business
who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements of
the Online Public Records Business included in the
Registration Statements and the Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the Act and
the related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three days
prior to the date of this Agreement, there was any
decrease in stockholders' equity or change in the
capital stock or any increase in short-term
indebtedness or long-term debt of the Online Public
Records Business or, at the date of the latest
available balance sheet read by such accountants,
there was any decrease in net current assets or net
assets, as compared with amounts shown on the latest
balance sheet of the Online Public Records Business
included in the Registration Statements and the
Prospectus; or
(C) for the period from the closing date of
the latest statement of operations of the Online
Public Records Business included in the Registration
Statements and the Prospectus to the closing date of
the latest available statement of operations of the
Online Public Records Business read by such
accountants there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended
the date of the latest statement of operations of
the Online Public Records Business included in the
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Registration Statements and the Prospectus, in net
revenues or net income, or in the total amounts of
net income or income from operations, or any
increases or decreases, as the case may be, in other
items specified by the Representatives;
except in all cases set forth in clauses (B) and (C) above
for changes, increases or decreases which the Prospectus
discloses have occurred;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information of the Online Public Records Business
contained in the Registration Statements and the Prospectus
(in each case to the extent that such dollar amounts,
percentages, numerical data and other financial information
are derived from the general accounting records of the Online
Public Records Business subject to the internal controls of
the Online Public Records Business accounting system or are
derived from such records by analysis or computation) with
the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages,
numerical data and other financial information to be in
agreement with such results.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time; (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time; and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements. All financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statements for
purposes of this subsection.
(c) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
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prior to the filing of the amendment or post-effective amendment to
the registration statement to be filed shortly prior to such Effective
Time), of Xxxxxx & Xxxxx confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder, that they have audited the financial
statements of I.R.S.C., Inc. and subsidiaries as of December 31, 1998
and 1997 and for each of the three years in the period ended December
31, 1998 and stating to the effect that in their opinion the financial
statements and schedules examined by them and referenced in their
report included in the Registration Statements comply as to form in
all material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations;
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time; (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time; and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements. All financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statements for
purposes of this subsection.
(d) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such later
date as shall have been consented to by CSFBC. If the Effective Time
of the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time
of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
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the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop
order suspending the effectiveness of a Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Shareholder, the
Company or the Representatives, shall be contemplated by the
Commission.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, prospects, results of operations or
general affairs of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading
in the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York authorities;
or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx, Xxxxx & Bockius LLP, counsel for the
Company, to the effect that:
(i) The Company is a corporation duly incorporated
and validly subsisting in good standing under the laws of the
Commonwealth of Pennsylvania, with corporate power and
authority to own, lease and operate its properties and
conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in good standing in the States of Florida and
Nevada.
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(ii) The Offered Securities delivered on such
Closing Date by the Company have been duly authorized and
will be, when issued and paid for in accordance with this
Agreement, validly issued, fully paid and nonassessable and
the Offered Securities delivered on such Closing Date by the
Selling Shareholders have been duly authorized, validly
issued, fully paid and nonassessable; no further approval or
authority of the shareholders or the Board of Directors of
the Company is or will be required for the issuance and sale
of the Offered Securities as contemplated by this Agreement;
to the best knowledge of such counsel, the shareholders of
the Company have no statutory or other preemptive or similar
rights with respect to the Offered Securities; and all
outstanding shares of the capital stock of the Company have
been duly authorized, are validly issued, are fully paid and
non-assessable and have been issued in compliance with
applicable federal and state securities laws; the authorized
and outstanding shares of capital stock of the Company are as
set forth in the Prospectus under the captions
"Capitalization" and "Description of Capital Stock" as of the
dates stated therein and conform to the descriptions thereof
contained in the Prospectus.
(iii) All of the issued and outstanding capital
stock of each of the Company's subsidiaries has been duly
authorized and validly issued, is fully paid and
non-assessable and is owned directly by the Company.
(iv) To the knowledge of such counsel, except as
disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any
third party (whether acting in an individual, fiduciary or
other capacity) granting such third party the right to
require the Company to file a registration statement under
the Act with respect to any securities of the Company owned
or to be owned by such third party or to require the Company
to include such securities in the Offered Securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(v) To the knowledge of such counsel, except as
disclosed in the Prospectus, no consent, approval,
authorization, order, registration or qualification of, or
filing with, any third party (whether acting in an
individual, fiduciary or other capacity) or any governmental,
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regulatory or accrediting agency or body or any court is
required for the consummation by the Company of the
transactions contemplated by this Agreement in connection
with the issuance and sale of the Offered Securities, except
such as have been obtained and made under the Act and such as
may be required under foreign or state securities laws in
connection with the issuance and sale of the Offered
Securities.
(vi) This Agreement has been duly authorized,
executed and delivered by or on behalf of the Company.
(vii) The execution, delivery and performance of
this Agreement and the consummation of the transactions
herein contemplated do not and will not conflict with or
result in a breach or violation of any of the terms and
provisions of, and do not and will not constitute a default
(or an event which with the giving of notice or the lapse of
time or both could reasonably be likely to constitute a
default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any assets or properties
of the Company or any of its subsidiaries (including any
individual institution within such entity) under, and neither
the Company nor any of its subsidiaries is in violation of
(A) the charter, by-laws or other organizational documents of
the Company or any subsidiary, (B) to the best knowledge of
such counsel, any statute, any rule, regulation, requirement,
order or decree of any governmental, regulatory or agency or
body or any court having jurisdiction over the Company or any
subsidiary or any of their properties, assets or operations
or (C) to the best knowledge of such counsel, any indenture,
mortgage, loan or credit agreement, note, lease, permit,
license or other agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or
any subsidiary is bound or to which any of the properties,
assets or operations of the Company or any subsidiary is
subject, except, in the case of clause (C), for such breaches
or violations which would not, individually or in the
aggregate, have a Material Adverse Effect.
(viii) Except as set forth in the Prospectus, to the
best knowledge of such counsel, there are no outstanding (A)
securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (B)
warrants, rights or options to subscribe for or purchase from
the Company any such capital stock or any such convertible or
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exchangeable securities or obligations or (C) obligations of
the Company to issue such shares, any such convertible or
exchangeable securities or obligations, or any such warrants,
rights or obligations.
(ix) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940, as amended.
(x) To the best knowledge of such counsel, there are
no statutes, regulations, contracts or other documents that
are required to be described in the Registration Statements
or the Prospectus or to be filed as exhibits to the
Registration Statements that are not described or filed as
required.
(xi) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and each
Registration Statement and the Prospectus, and each amendment
or supplement thereto, as of their respective effective or
issue dates (it being understood that such counsel need
express no opinion as to the financial statements and
schedules or other financial or statistical data contained in
the Registration Statements and the Prospectus), complied as
to form in all material respects with the requirements of the
Act and the Rules and Regulations.
In addition, such counsel shall also state that it has
participated in conferences with representatives of the Underwriters,
officers and representatives of the Company and representatives of the
independent public accountants of the Company, at which conferences
the contents of the Registration Statements and the Prospectus and
related matters were discussed, and although such counsel does not
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pass upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statements and the Prospectus, on the basis of the
foregoing (relying as to materiality in part upon the factual
statements of officers and representations of the Company), no facts
have come to the attention of such counsel that cause such counsel to
believe that any part of the Registration Statement or any amendment
thereto, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any supplement thereto, as of its
issue date or as of such Closing Date, included any untrue statement
of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief as to the
financial statements and schedules or other financial or statistical
data contained in the Registration Statements and the Prospectus).
Such opinion shall be to such further effect with respect to
other legal matters relating to this Agreement and the transactions
contemplated hereby as the Representatives and counsel to the
Underwriters may reasonably request. In rendering such opinion, such
counsel may rely as to matters governed by the laws of jurisdictions
other than the laws of jurisdictions in which such counsel are
admitted to practice and the federal laws of the United States upon
the opinions of counsel reasonably satisfactory to the Representatives
and counsel to the Underwriters.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx X. Xxxxxxxx, Vice President and General
Counsel of the Company, to the effect that:
(i) Each of the Company's subsidiaries has been duly
incorporated and is a validly existing corporation in good
standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate or other)
to own, lease and operate its properties and to conduct is
business as described in the Prospectus; and each subsidiary
of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which its ownership, leasing or operation of property or the
conduct of its business requires such qualification, except
where the failure to be so qualified would not have a
Material Adverse Effect;
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(ii) All of the issued and outstanding capital stock
of each of the Company's subsidiaries is owned by the
Company, directly or through subsidiaries, free and clear of
any mortgage, pledge, lien, security interest, claim,
encumbrance or defect of any kind; and there are no rights
granted to or in favor of any third party (whether acting in
an individual, fiduciary or other capacity) other than the
Company to acquire any such capital stock, any additional
capital stock or any other securities of any subsidiary.
(iii) To the best knowledge of such counsel, the
Company and its subsidiaries possess all Licenses issued by
appropriate governmental or regulatory agencies or bodies as
are necessary to own, lease or operate their properties and
conduct the business now operated by them, and all such
Licenses are in full force and effect. To the best knowledge
of such counsel, the Company and its subsidiaries are in
substantial compliance with their respective obligations
under such Licenses, subject to such qualifications as are
described in the Prospectus, and neither the Company nor any
of its subsidiaries has received notice of any proceedings,
investigations or inquiries (or is aware of any facts that
would form a reasonable basis for any proceedings,
investigations or inquiries) relating to the revocation,
modification, termination or suspension of any such License
or impairment of the rights of the Company or such
subsidiaries thereunder that, if determined adversely to the
Company or any of its subsidiaries, could individually or in
the aggregate have a Material Adverse Effect.
(iv) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated have been duly authorized by all necessary
corporate action on the part of the Company and, to the
extent required, its shareholders and do not and will not
conflict with or result in a breach or violation of any of
the terms and provisions of, and do not and will not
constitute a default (or an event which with the giving of
notice or the lapse of time or both could reasonably be
likely to constitute a default) under, or result in the
creation or imposition of any lien, charge or encumbrance
upon any assets or properties of the Company or any of its
subsidiaries (including any individual institution within
such entity) under, and neither the Company nor any of its
subsidiaries is in violation of (A) the charter, by-laws or
other organizational documents of the Company or any
subsidiary, (B) to the best knowledge of such counsel, any
statute, any rule, regulation, requirement, order or decree
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of any governmental, regulatory or agency or body or any
court having jurisdiction over the Company or any subsidiary
or any of their properties, assets or operations or (C) to
the best knowledge of such counsel, any indenture, mortgage,
loan or credit agreement, note, lease, permit, license or
other agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the properties, assets
or operations of the Company or any subsidiary is subject,
except, in the case of clause (C), for such breaches or
violations which would not, individually or in the aggregate,
have a Material Adverse Effect.
(v) Except as disclosed in the Prospectus, there are
no pending or, to the best knowledge of such counsel,
threatened actions, suits, proceedings or investigations
against or affecting the Company or any of its subsidiaries
or any of their respective properties, assets or operations
that could materially and adversely affect the ability of the
Company to perform its obligations under this Agreement or
which are otherwise material in the context of the sale of
the Offered Securities.
(vi) The descriptions in the Registration Statements
and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate
and fairly present the information required to be shown and
such counsel does not know of any legal or governmental
proceedings, statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statements or the Prospectus or to be filed as
exhibits to the Registration Statements that are not
described or filed as required.
In addition, such counsel shall also state that no facts have
come to the attention of such counsel that cause such counsel to
believe that any part of the Registration Statement or any amendment
thereto, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any supplement thereto, as of its
issue date or as of such Closing Date, included any untrue statement
of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief as to the
financial statements and schedules or other financial or statistical
data contained in the Registration Statements and the Prospectus).
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Such opinion shall be to such further effect with respect to
other legal matters relating to this Agreement and the transactions
contemplated hereby as the Representatives and counsel to the
Underwriters may reasonably request. In rendering such opinion, such
counsel may rely as to matters governed by the laws of jurisdictions
other than the laws of jurisdictions in which such counsel are
admitted to practice and the federal laws of the United States upon
the opinions of counsel reasonably satisfactory to the Representatives
and counsel to the Underwriters.
(h) The Representatives shall have received the opinion of
counsel for each of the Selling Shareholders in the form contemplated
by the Power of Attorney executed and delivered by each Selling
Shareholder.
(i) The Representatives shall have received from Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the validity of the
Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Shareholders and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(j) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice-President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: (A) the representations and
warranties of the Company in this Agreement are true and correct as
though made on such Closing Date; (B) the Company has complied with
all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date; (C)
no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; (D) the
Additional Registration Statement (if any) satisfying the requirements
of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter; (E)
subsequent to the dates as of which information is given in the
Registration Statements and the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, prospects, results of operations or general affairs of the
Company and its subsidiaries taken as a whole; and (F) they have
carefully examined the Registration Statements and the Prospectus and
neither any Registration Statement nor the Prospectus or any amendment
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or supplement thereto, as of their respective effective or issue dates
and as of such Closing Date, contained an untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(k) The Representatives shall have received a letter, dated
such Closing Date, of Deloitte & Touche LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(l) The Representatives shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (b) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(m) The Representatives shall have received the written
undertakings of the officers, directors and certain shareholders of
the Company listed on Exhibit 2 to the effect contemplated in
subsection (h) of Section 5 hereof unless otherwise waived or agreed
to by the Representatives.
(n) The Representatives shall have received such other
opinions, certificates, letters and other documents from or on behalf
of the Company or the Selling Shareholders as the Representatives
shall reasonably request.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof, only if they are reasonably satisfactory
in form and substance to CSFBC and counsel for the Underwriters. The Company
and the Selling Shareholders will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and documents as the
Representatives reasonably requests. CSFBC may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
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or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses, claims, damages
or liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus (exclusive of material incorporated by reference) correcting
such untrue statement or alleged untrue statement in or omission or alleged
omission from such preliminary prospectus if the Company had previously
furnished such quantity of copies thereof to such Underwriter as reasonably
requested by or on behalf of such Underwriter.
Insofar as the foregoing indemnity agreement, or the representations
and warranties contained in Section 2(a)(ii), may permit indemnification for
liabilities under the Act of any person who is an Underwriter or a partner or
controlling person of an Underwriter within the meaning of Section 15 of the
Act and who, at the date of this Agreement, is a director, officer or
controlling person of the Company, the Company has been advised that in the
opinion of the Commission such provisions may contravene Federal public policy
as expressed in the Act and may therefore be unenforceable. In the event that a
claim for indemnification under such agreement or such representations and
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warranties for any such liabilities (except insofar as such agreement provides
for the payment by the Company of expenses incurred or paid by a director,
officer or controlling person in the successful defense of any action, suit or
proceeding) is asserted by such a person, the Company will submit to a court of
appropriate jurisdiction (unless in the opinion of counsel for the Company the
matter has already been settled by controlling precedent) the question of
whether or not indemnification by it for such liabilities is against public
policy as expressed in the Act and therefore unenforceable, and the Company
will be governed by the final adjudication of such issue.
(b) The Selling Shareholders, jointly and severally, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Selling Shareholders will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by an Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (c) below; and provided,
further, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any preliminary prospectus the
indemnity agreement contained in this subsection (b) shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Offered Securities concerned, to
the extent that a prospectus relating to such Offered Securities was required
to be delivered by such Underwriter under the Act in connection with such
purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to
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such person, a copy of the Prospectus (exclusive of material incorporated by
reference) correcting such untrue statement or alleged untrue statement in or
omission or alleged omission from such preliminary prospectus if the Company
had previously furnished such quantity of copies thereof to such Underwriter as
reasonably requested by or on behalf of such Underwriter.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors an officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Shareholder against any losses, claims, damages or liabilities to which
the Company or such Selling Shareholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through the Representatives specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Company
and each Selling Shareholder in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished
on behalf of each Underwriter: the information appearing under the caption
"Underwriting" with respect to concession and discount figures and the
information in the eighth paragraph and the last two sentences of the ninth
paragraph appearing under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
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election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless (i) such settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders 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 Shareholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholders 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
(before deducting expenses) received by the Company and the Selling
Shareholders bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
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the public exceeds the amount of any damages which such Underwriter 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section shall be in addition to any liability which the Company and the
Selling Shareholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing
Date, CSFBC may make arrangements satisfactory to the Company and the Selling
Shareholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC, the Company and the Selling
Shareholders for the purchase of such Offered Securities by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Shareholders, except as provided in Section 9 (provided that if
such default occurs with respect to Optional Securities after the First Closing
Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
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9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Selling Shareholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Shareholder, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and
payment for the Offered Securities. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Shareholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant
to Section 5 and the respective obligations of the Company, the Selling
Shareholders, and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(e), the Company and
the Selling Shareholders will, jointly and severally, reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements
of counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representatives at Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Investment Banking Department - Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at DBT Online, Inc., 0000 Xxxx Xxxx Xxxx, Xxxx Xxxxx, XX 00000,
Attention: Xxxxxxx X. Xxxxxxx, or, if sent to the Selling Shareholders, or any
of them, will be mailed, delivered or telegraphed and confirmed to such Selling
Shareholder at the address of the Attorneys-in-Fact as set forth in the Powers
of Attorney, or in each case to such other address as the person to be notified
may have requested in writing; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
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12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by the Representatives
will be binding upon all the Underwriters. The Custodian will act for the
Selling Shareholders in connection with such transactions, and any action under
or in respect of this Agreement taken by the Custodian will be binding upon all
the Selling Shareholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and the Selling Shareholders hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of
the counterparts hereof, whereupon it will become a binding agreement among the
Selling Shareholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
DBT ONLINE, INC.
By
--------------------------------
Name:
Title:
SELLING SHAREHOLDERS:
XXXX X. XXXXX
By:
--------------------------------
Attorney-in-Fact
XXXXXXX X. XXXXX
By:
--------------------------------
Attorney-in-Fact
XXXX X. XXXX
By:
--------------------------------
Attorney-in-Fact
XXXXXX XXXXXXX
By:
--------------------------------
Attorney-in-Fact
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The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
INVEMED ASSOCIATES LLC
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-----------------------------------
Name:
Title:
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SCHEDULE A
Number of
Firm Number of Optional
Securities to be Securities to
Selling Shareholder Sold be Sold
------------------- ---------------- ------------------
Xxxx X. Xxxxx.......................... 4,469,758 0
Xxxxxxx X. Xxxxx....................... 200,000 721,478
Xxxx X. Xxxx........................... 0 107,488
Xxxxxx Xxxxxxx......................... 0 21,498
--------- -------
Total.......................... 4,669,758 850,464
========= =======
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SCHEDULE B
Number of
Firm Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston Corporation...................... [ ]
Invemed Associates LLC...................................... [ ]
----------
Total............................................... 5,669,758
==========
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EXHIBIT 1
SUBSIDIARIES
Name of Subsidiary Jurisdiction of Incorporation
------------------ -----------------------------
Database Technologies, Inc. Florida
Patlex Corporation Pennsylvania
DBT Online Investment Company, Inc. Nevada
DBT Online Holding Company, Inc. Nevada
The Information Connectivity Group, Inc. Nevada
DBT Licensing Corporation Nevada
Winshapes, Inc. Washington
I.R.S.C., Inc. California
Advanced Resource Concepts California
National Court Runners California
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EXHIBIT 2
OFFICERS, DIRECTORS AND CERTAIN SHAREHOLDERS
Xxxxxxx X. Xxxxx
Xxxxx Xxxxxx
Xxxx X. Erlbaum
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Step
Xxxxx X. Xxxx
Xxx X. Xxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxx Xxxxxxx-Xxxx
Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxx Xxxxx Teincuff
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
