EXHIBIT 1.1
3,000,000 SHARES
EMS TECHNOLOGIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
St. Petersburg, Florida
_____________, 2006
Xxxxxxx Xxxxx & Associates, Inc.
Xxxxxxx & Company, LLC
X.X. Xxxxxxx & Sons, Inc.
As Representatives of the Several Underwriters
listed on Schedule I hereto
c/o Raymond Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
EMS Technologies, Inc., a Georgia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the several Underwriters named in Schedule I hereto (the "Underwriters"), an
aggregate of 3,000,000 shares of its Common Stock, par value $0.10 per share
(the "Common Stock"). The aggregate of 3,000,000 shares to be purchased from the
Company are called the "Firm Shares." In addition, the Company has agreed to
sell to the Underwriters, upon the terms and conditions stated herein, up to an
additional 450,000 shares of Common Stock (the "Additional Shares") to cover
over-allotments by the Underwriters, if any. The Firm Shares and the Additional
Shares are collectively referred to in this Agreement as the "Shares." Xxxxxxx
Xxxxx & Associates, Inc., Xxxxxxx & Company, LLC and X.X. Xxxxxxx & Sons, Inc.
are acting as the representatives of the several Underwriters and in such
capacity are referred to in this Agreement as the "Representatives."
The Company wishes to confirm as follows its agreement with you and the
other several Underwriters, on whose behalf you are acting, in connection with
the several purchases of the Shares from the Company.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (File No.
333-131042),
including a prospectus subject to completion, relating to the Shares. Such
registration statement, as amended, including the financial statements, exhibits
and schedules thereto, at the time when it becomes effective and as thereafter
amended by any post-effective amendment, is referred to in this Agreement as the
"Registration Statement." The prospectus in the form included in the
Registration Statement or, if the prospectus included in the Registration
Statement omits certain information in reliance upon Rule 430A under the Act and
such information is thereafter included in a prospectus filed with the
Commission pursuant to Rule 424(b) under the Act or as part of a post-effective
amendment to the Registration Statement after the Registration Statement becomes
effective, the prospectus as so filed, is referred to in this Agreement as the
"Prospectus." If the Company files another registration statement with the
Commission to register a portion of the Shares pursuant to Rule 462(b) under the
Act (the "Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to include the registration statement on Form
S-3 (File No. 333-131042) and the Rule 462 Registration Statement, as each such
registration statement may be amended pursuant to the Act. The prospectus
subject to completion in the form included in the Registration Statement at the
time of the initial filing of such Registration Statement with the Commission
and as such prospectus is amended or supplemented from time to time until the
date of the Prospectus is referred to in this Agreement as the "Preliminary
Prospectus." For purposes of this Agreement, "free writing prospectus" has the
meaning ascribed to it in Rule 405 under the Act, and "Issuer Free Writing
Prospectus" shall mean each free writing prospectus prepared by or on behalf of
the Company or used or referred to by the Company in connection with the
offering of the Common Stock. "Time of Sale Information" shall mean, as of
_______ p.m. Eastern time on the date hereof (the "Applicable Time"), the
Preliminary Prospectus, together with each Issuer Free Writing Prospectuses
filed or used by the Company on or before the Applicable Time, including those
identified in Schedule II hereto, and the pricing terms of the offering of the
Shares specified in a final term sheet. All references in this Agreement to the
Registration Statement, the Rule 462 Registration Statement, a Preliminary
Prospectus, the Prospectus or the Time of Sale Information, or any amendments or
supplements to any of the foregoing, shall be deemed to refer to and include any
documents incorporated by reference therein (the "Incorporated Documents"), and
shall include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
2. Agreements to Sell and Purchase. The Company hereby agrees to
issue and sell the Firm Shares to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Company herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company at a purchase
price of $______ per Share (the "purchase price per Share"), the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto.
- 2 -
The Company hereby also agrees to sell to the Underwriters, and, upon
the basis of the representations, warranties and agreements of the Company
herein contained and subject to all the terms and conditions set forth herein,
the Underwriters shall have the right for 30 days from the date of the
Prospectus to purchase from the Company up to 450,000 Additional Shares at the
purchase price per Share for the Firm Shares. The Additional Shares may be
purchased solely for the purpose of covering over-allotments, if any, made in
connection with the offering of the Firm Shares. If any Additional Shares are to
be purchased, each Underwriter, severally and not jointly, agrees to purchase
the number of Additional Shares (subject to such adjustments as you may
determine to avoid fractional shares) that bears the same proportion to the
total number of Additional Shares to be purchased by the Underwriters as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of Shares. The option to purchase
Additional Shares may be exercised at any time within 30 days after the date of
the Prospectus.
3. Terms of Public Offering. The Company has been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Shares upon the terms set forth in the Prospectus.
Not later than 12:00 p.m. on the second business day following the date
the Shares are released by the Underwriters for sale to the public, the Company
shall deliver or cause to be delivered copies of the Prospectus in such
quantities and at such places as the Representatives shall request.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of the Firm Shares and payment therefor shall be made at the
offices of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx at 10:00 a.m., St. Petersburg, Florida time, on _________,
or such other place, time and date not later than 1:30 p.m., St. Petersburg,
Florida time, on __________ as the Representatives shall designate by notice to
the Company (the time and date of such closing are called the "Closing Date").
The place of closing for the Firm Shares and the Closing Date may be varied by
agreement between you and the Company. The Company hereby acknowledges that
circumstances under which the Representatives may provide notice to postpone the
Closing Date as originally scheduled include any determination by the Company or
the Representatives to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the provisions of Section
11 hereof.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the offices of Xxxxxxx
Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, at
10:00 a.m., St. Petersburg, Florida time, on such date or dates (the "Additional
Closing Date") (which may be the same as the Closing Date, but shall in no event
be earlier than the Closing Date nor earlier than three nor later than ten
business days after the giving of the notice hereinafter referred to) as shall
be specified in a written notice, from the Representatives on behalf of the
Underwriters to the Company, of the Underwriters' determination to purchase a
number, specified in such notice, of Additional Shares. Such notice
- 3 -
may be given at any time within 30 days after the date of the Prospectus and
must set forth (i) the aggregate number of Additional Shares as to which the
Underwriters are exercising the option and (ii) the names and denominations in
which the certificates for which the Additional Shares are to be registered. The
place of closing for the Additional Shares and the Additional Closing Date may
be varied by agreement between you and the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 1:00 p.m., St. Petersburg, Florida time, not later
than the second full business day preceding the Closing Date or the Additional
Closing Date, as the case may be. Such certificates shall be made available to
you in St. Petersburg, Florida for inspection and packaging not later than 9:30
a.m., St. Petersburg, Florida time, on the business day immediately preceding
the Closing Date or the Additional Closing Date, as the case may be. The
certificates evidencing the Firm Shares and any Additional Shares to be
purchased hereunder shall be delivered to you on the Closing Date or the
Additional Closing Date, as the case may be, against payment of the purchase
price therefore by wire transfer of immediately available funds to an account
specified in writing, not later than the close of business on the business day
next preceding the Closing Date or the Additional Closing Date, as the case may
be, by the Company. Payment for the Shares sold by the Company hereunder shall
be delivered by the Representatives to the Company.
It is understood that the Representatives have been authorized, for
their own account and the accounts of the several Underwriters, to accept
delivery of and receipt for, and to make payment of the purchase price per Share
for the Firm Shares and the Additional Shares, if any, that the Underwriters
have agreed to purchase. Xxxxxxx Xxxxx and Associates, Inc., individually and
not as a Representative of the Underwriters, may, but shall not be obligated to,
make payment for any Shares to be purchased by any Underwriter whose funds shall
not have been received by the Representatives by the Closing Date or the
Additional Closing Date, as the case may be, for the account of such
Underwriter, but any such payment shall not relieve such Underwriter from any of
its obligations under this Agreement.
5. Covenants and Agreements.
The Company covenants and agrees with the several Underwriters as
follows:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective, if it has
not already become effective, and will advise you promptly and, if requested by
you, will confirm such advice in writing (i) when the Registration Statement has
become effective and the time and date of any filing of any post-effective
Registration Statement or any amendment or supplement to any Preliminary
Prospectus or the Prospectus and the time and date that any post-effective
amendment to the Registration Statement becomes effective, (ii) if Rule 430A
under the Act is employed, when the Prospectus has been timely filed pursuant to
Rule 424(b) under the Act, (iii) of the receipt of any comments of the
Commission, or any request by the Commission for amendments or supplements to
the Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional
- 4 -
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purposes and (v) within the period of time
referred to in Section 5(h) below, of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or results of
operations, or other event that comes to the attention of the Company and, which
change or other event, in the judgment of the Company, makes any statement made
in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue in any material respect or that requires the making of any
additions thereto or changes therein in order to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which they were
made) not misleading in any material respect, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal or lifting of such order
at the earliest possible time. The Company will provide the Underwriters with
copies of the form of Prospectus, in such number as the Underwriters may
reasonably request, and file with the Commission such Prospectus in accordance
with Rule 424(b) of the Act before the close of business on the first business
day immediately following the date hereof.
(b) The Company will furnish to you, without charge,
three signed duplicate originals of the Registration Statement as originally
filed with the Commission and of each amendment thereto, including financial
statements and all exhibits thereto, and will also furnish to you, without
charge, such number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto as you may reasonably request.
(c) The Company will promptly file with the Commission
any amendment or supplement to the Registration Statement or the Prospectus that
may, in the judgment of the Company or the Representatives, be required by the
Act or requested by the Commission.
(d) The Company will furnish a copy of any amendment or
supplement to the Registration Statement or to the Prospectus or any Issuer Free
Writing Prospectus to you and counsel for Underwriters and will not file any
such amendment or supplement or any such Issuer Free Writing Prospectus to which
the Representatives reasonably object.
(e) The Company will not make any offer relating to the
Common Stock that would constitute an Issuer Free Writing Prospectus without
your prior consent.
(f) The Company will retain in accordance with the Act
all Issuer Free Writing Prospectuses not required to be filed pursuant to the
Act; and if at any time after the date hereof any events shall have occurred as
a result of which any Issuer Free Writing Prospectus, as then amended or
supplemented, would conflict with the information in the Registration Statement,
the most recent Preliminary Prospectus or the Prospectus or would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading,
- 5 -
or, if for any other reason it shall be necessary to amend or supplement any
Issuer Free Writing Prospectus, to notify you and, upon your request, to file
such document and to prepare and furnish without charge to each Underwriter as
many copies as they may from time to time reasonably request of an amended or
supplemented Issuer Free Writing Prospectus that will correct such conflict,
statement or omission or effect such compliance.
(g) Prior to the execution and delivery of this
Agreement, the Company has delivered or will deliver to you, without charge, in
such quantities as you have requested or may hereafter reasonably request,
copies of each form of the Preliminary Prospectus. Consistent with the
provisions of Section 5(h) hereof, the Company consents to the use, in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the several
Underwriters and by dealers, prior to the date of the Prospectus, of each
Preliminary Prospectus so furnished by the Company.
(h) As soon after the execution and delivery of this
Agreement as is practicable and thereafter from time to time for such period as
in the reasonable opinion of counsel for the Underwriters a prospectus is
required by the Act to be delivered in connection with sales by any Underwriter
or a dealer (the "Prospectus Delivery Period"), and for so long a period as you
may request for the distribution of the Shares, the Company will deliver to each
Underwriter and each dealer, without charge, as many copies of the Prospectus
and the Time of Sale Information (and of any amendment or supplement thereto) as
they may reasonably request. The Company consents to the use of the Prospectus
and the Time of Sale Information (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold, both in connection
with the offering and sale of the Shares and for such period of time thereafter
as the Prospectus is required by the Act to be delivered in connection with
sales by any Underwriter or dealer. If at any time prior to the later of (i) the
completion of the distribution of the Shares pursuant to the offering
contemplated by the Registration Statement or (ii) the expiration of prospectus
delivery requirements with respect to the Shares under Section 4(3) of the Act
and Rule 174 thereunder, any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with the Act or any other law,
the Company will forthwith prepare and, subject to Section 5(a) hereof, file
with the Commission and use its best efforts to cause to become effective as
promptly as possible an appropriate supplement or amendment thereto, and will
furnish to each Underwriter who has previously requested Prospectuses, without
charge, a reasonable number of copies thereof.
(i) The Company will cooperate with you and counsel for
the Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may reasonably
designate and will file such consents to service of process or other documents
as
- 6 -
may be reasonably necessary in order to effect and maintain such registration or
qualification for so long as required to complete the distribution of the
Shares; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to general service of process in suits, other than
those arising out of the offering or sale of the Shares, as contemplated by this
Agreement and the Prospectus, in any jurisdiction where it is not now so
subject. In the event that the qualification of the Shares in any jurisdiction
is suspended, the Company shall so advise you promptly in writing.
(j) The Company will make generally available to its
security holders a consolidated earnings statement (in form complying with the
provisions of Rule 158), which need not be audited, covering a twelve-month
period commencing after the effective date of the Registration Statement and the
Rule 462 Registration Statement, if any, and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which
consolidated earnings statement shall satisfy the provisions of Section 11(a) of
the Act.
(k) During the Prospectus Delivery Period, the Company
will file all documents required to be filed with the Commission pursuant to
Sections 13, 14 and 15 of the Exchange Act in the manner and within the time
periods required by the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the "Exchange Act").
(l) During the period ending three years from the date
hereof, the Company will furnish to you and, upon your request, to each of the
other Underwriters, as promptly as practicable after they have been filed or
mailed, as the case may be, a copy of each proxy statement, quarterly or annual
report or other report of the Company mailed to shareholders or filed with the
Commission, the National Association of Securities Dealers, Inc. (the "NASD") or
the Nasdaq Stock Market ("NASDAQ") or any national securities exchange, in each
such case unless they are otherwise available on the Commission's XXXXX system.
(m) If this Agreement shall terminate or shall be
terminated pursuant to clause (i) of Section 12 hereof or if this Agreement
shall be terminated by the Underwriters because of any inability, failure or
refusal on the part of the Company to perform in all material respects any
agreement herein or to comply in all material respects with any of the terms or
provisions hereof or to fulfill in all material respects any of the conditions
of this Agreement, the Company agrees to reimburse you and the other
Underwriters for all out-of-pocket expenses (including travel expenses and
reasonable fees and expenses of counsel for the Underwriters, but excluding
wages and salaries paid by you) reasonably incurred by you in connection
herewith.
(n) The Company will apply the net proceeds from the sale
of the Shares to be sold by it hereunder in accordance in all material respects
with the statements under the caption "Use of Proceeds" in the Prospectus.
(o) For a period commencing on the date hereof and ending
on the 90th day after the date of the Prospectus (the "Lock-Up Period"), the
Company shall not, directly or
- 7 -
indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter
into any transaction or device that is designed to, or could reasonably be
expected to, result in the disposition by any person at any time in the future
of) any shares of Common Stock or securities convertible into or exchangeable
for Common Stock (other than pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights), or sell or grant
options, rights or warrants with respect to any shares of Common Stock or
securities convertible into or exchangeable for Common Stock (other than the
grant of options pursuant to option plans existing on the date hereof), (2)
enter into any swap or other derivatives transaction that transfers to another,
in whole or in part, any of the economic benefits or risks of ownership of such
shares of Common Stock, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Stock or other securities, in
cash or otherwise, (3) file or cause to be filed a registration statement,
including any amendments, with respect to the registration of any shares of
Common Stock or securities convertible, exercisable or exchangeable into Common
Stock or any other securities of the Company or (4) publicly disclose the
intention to do any of the foregoing, in each case without the prior written
consent of the Representatives on behalf of the Underwriters, and shall cause
each executive officer and director of the Company set forth on Schedule III
hereto to furnish to the Representatives, prior to the Closing Date, a letter or
letters, substantially in the form of Exhibit A hereto (the "Lock-Up
Agreements"); notwithstanding the foregoing, if (1) during the last 17 days of
the Lock-Up Period, the Company issues an earnings release or announces material
news or a material event relating to the Company occurs or (2) prior to the
expiration of the Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
Lock-Up Period, then the restrictions imposed in the preceding paragraph shall
continue to apply until the expiration of the 18-day period beginning on the
date of issuance of the earnings release or the announcement of the material
news or the occurrence of the material event, unless the Representatives, on
behalf of the Underwriters, waive such extension in writing.
(p) Prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company will furnish to you, as promptly as
possible, copies of any unaudited interim consolidated financial statements of
the Company and its subsidiaries for any period subsequent to the periods
covered by the financial statements appearing in the Prospectus.
(q) The Company will comply with all provisions of any
undertakings contained in the Registration Statement.
(r) The Company will not at any time, directly or
indirectly, take any action designed, or which might reasonably be expected to
cause or result in, or which will constitute, stabilization or manipulation of
the price of the shares of Common Stock to facilitate the sale or resale of any
of the Shares.
(s) Until the completion of the offering. the Company
will timely file with NASDAQ all documents and notices required by the NASDAQ of
companies that have or will issue securities that are traded on the NASDAQ.
- 8 -
(t) The Company shall engage and maintain, at its
expense, a transfer agent and, if necessary under the jurisdiction of its
incorporation or the rules of any national securities exchange on which the
Common Stock is listed, a registrar (which, if permitted by applicable laws and
rules may be the same entity as the transfer agent) for the Common Stock.
6. Representations and Warranties.
The Company hereby represents and warrants to each Underwriter on the
date hereof, and shall be deemed to represent and warrant to each Underwriter on
the Closing Date and the Additional Closing Date, as the case may be, that:
(a) The Company was not at the time of initial filing of
the Registration Statement and at the earliest time thereafter that the Company
or another offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) of the Act) of the Common Stock, is not on the date hereof and
will not be on the applicable Closing Date an "ineligible issuer" (as defined in
Rule 405).
(b) The Registration Statement conformed, and any
amendment to the Registration Statement filed after the date hereof will conform
in all material respects when filed, to the requirements of the Act. The most
recent Preliminary Prospectus conformed, and the Prospectus will conform, in all
material respects when filed with the Commission pursuant to Rule 424(b).
(c) The Registration Statement does not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, that no representation or warranty is made as to information contained
in or omitted from the Registration Statement in reliance upon and in conformity
with written information furnished to the Company through the Representatives by
or on behalf of any Underwriter specifically for inclusion therein.
(d) The Company satisfies all of the requirements of the
Act for use of Form S-3 for the offering of Shares contemplated hereby. The
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Prospectus in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein. The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus and no proceeding for that purpose has been
instituted or threatened by the Commission or the securities authority of any
state or other jurisdiction.
(e) The Time of Sale Information does not, and will not
at the Applicable Time
- 9 -
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that no representation or warranty is made as to information contained
in or omitted from the Time of Sale Information in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein.
(f) Each Preliminary Prospectus and the Prospectus, if
filed by electronic transmission pursuant to XXXXX (except as may be permitted
by Regulation S-T under the Act), was identical to the copy thereof delivered to
the Underwriters for use in connection with the offer and sale of the Shares.
(g) Each Issuer Free Writing Prospectus (including, without
limitation, any road show that is a free writing prospectus under Rule 433),
when considered together with the Time of Sale Information at the Applicable
Time, did not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(h) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was filed,
when such amendment was file), conformed in all material respects with the
requirements of the Exchange Act, and any further Incorporated Documents so
filed will, when they are filed, conform in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder; no
such Incorporated Document when it was filed (or, if an amendment with respect
to any such document was filed, when such amendment was filed), contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; and no such further Incorporated Document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
(i) Each Issuer Free Writing Prospectus conformed or will
conform in all material respects to the requirements of the Act on the date of
first use, and the Company has complied with all prospectus delivery and any
filing requirements applicable to such Issuer Free Writing Prospectus pursuant
to the Act. The Company has not made any offer relating to the Common Stock that
would constitute an Issuer Free Writing Prospectus and which is not set forth on
Schedule II hereto without the prior written consent of the Representatives. The
Company has retained in accordance with the Act all Issuer Free Writing
Prospectuses that were not required to be filed pursuant to the Act. The Company
has taken all actions necessary so that any "road show" (as defined in Rule 433)
in connection with the offering of the Stock will not be required to be filed
pursuant to the Act.
(j) The capitalization of the Company is and will be as set
forth in the Time of Sale Information (to the extent set forth
- 10 -
therein) and the Prospectus as of the date set forth therein. All the
outstanding shares of Common Stock of the Company have been, and as of the
Closing Date and the Additional Closing Date, as the case may be, will be, duly
authorized and validly issued, are fully paid and nonassessable and are free of
any preemptive or similar rights; except as set forth in the Time of Sale
Information and the Prospectus or for any issuances of stock options under stock
option plans of the Company referred to in the Prospectus, the Company is not a
party to or bound by any outstanding options, warrants or similar rights to
subscribe for, or contractual obligations to issue, sell, transfer or acquire,
any of its capital stock or any securities convertible into or exchangeable for
any of such capital stock; the Shares to be issued and sold to the Underwriters
by the Company hereunder have been duly authorized and, when issued and
delivered to the Underwriters against full payment therefor in accordance with
the terms hereof will be validly issued, fully paid and nonassessable and free
of any preemptive or similar rights; the capital stock of the Company conforms
to the description thereof in the Registration Statement, the Time of Sale
Information and the Prospectus (or any amendment or supplement thereto); and the
delivery of certificates for the Shares being sold by the Company against
payment therefor pursuant to the terms of this Agreement will pass valid title
to the Shares being sold by the Company, free and clear of any claim,
encumbrance or defect in title, to the several Underwriters purchasing such
shares in good faith and without notice of any lien, claim or encumbrance. The
certificates for the Shares being sold by the Company are in valid and
sufficient form.
(k) Each of the Company and its subsidiaries is a
corporation duly organized and validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as presently conducted and as described in the Registration
Statement, the Time of Sale Information and the Prospectus (and any amendment or
supplement thereto) and is duly registered and qualified to conduct its business
and is in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify has not had or
will not have a material adverse effect on the condition (financial or other),
business, properties, net worth, results of operations or prospects of the
Company and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(l) The issued shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and are owned by the Company free and clear of any
security interests, liens, encumbrances, equities or claims. The Company does
not have any subsidiaries and does not own a material interest in or control,
directly or indirectly, any other corporation, partnership, joint venture,
association, trust or other business organization, except as set forth in
Exhibit 21 the Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 2004, which is incorporated by reference into the Registration
Statement. As used in this Agreement, subsidiaries shall mean direct and
indirect subsidiaries of the Company.
(m) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened, against the Company or
its subsidiaries or to which the
- 11 -
Company or its subsidiaries or any of their properties are subject, that are
required to be described in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) but are not described as required. Except as
described in the Registration Statement, the Time of Sale Information and
Prospectus, there is no action, suit, inquiry, proceeding or investigation by or
before any court or governmental or other regulatory or administrative agency or
commission pending or, to the knowledge of the Company, threatened, against or
involving the Company or its subsidiaries, which might individually or in the
aggregate prevent or adversely affect the transactions contemplated by this
Agreement or result in a Material Adverse Effect, nor to the Company's
knowledge, is there any basis for any such action, suit, inquiry, proceeding or
investigation. There are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement, the
Time of Sale Information or the Prospectus (or any amendment or supplement
thereto) or to be filed as an exhibit to the Registration Statement that are not
described, filed or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus as required by the Act. All such
contracts to which the Company or any of its subsidiaries is a party have been
duly authorized, executed and delivered by the Company or the applicable
subsidiary, constitute valid and binding agreements of the Company or the
applicable subsidiary and are enforceable against the Company or the applicable
subsidiary in accordance with the terms thereof, except as enforceability
thereof may be limited by (i) the application of bankruptcy, reorganization,
insolvency and other laws affecting creditors' rights generally and (ii)
equitable principles being applied at the discretion of a court before which any
proceeding may be brought. Neither the Company nor the applicable subsidiary has
received notice or been made aware that any other party is in breach of or
default to the Company under any of such contracts.
(n) Neither the Company nor any of its subsidiaries is
(i) in violation of (A) its articles of incorporation or bylaws, or other
organizational documents, (B) any law, ordinance, administrative or governmental
rule or regulation applicable to the Company or any of its subsidiaries, the
violation of which would have a Material Adverse Effect or (C) any decree of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries; or (ii) in default in any material respect in the
performance of any obligation, agreement or condition contained in (A) any bond,
debenture, note or any other evidence of indebtedness or (B) any agreement,
indenture, lease or other instrument (each of (A) and (B), an "Existing
Instrument") to which the Company or any of its subsidiaries is a party or by
which any of their properties may be bound, which default would have a Material
Adverse Effect; and there does not exist any state of facts that constitutes an
event of default on the part of the Company or any of its subsidiaries as
defined in such documents or that, with notice or lapse of time or both, would
constitute such an event of default.
(o) The Company's execution and delivery of this
Agreement and the performance by the Company of its obligations under this
Agreement have been duly and validly authorized by the Company, and this
Agreement has been duly executed and delivered by the Company and constitutes a
valid and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except to the extent enforceability may be
limited by (i) the application of bankruptcy, reorganization, insolvency and
other laws affecting
- 12 -
creditors' rights generally and (ii) equitable principles being applied at the
discretion of a court before which any proceeding may be brought, except as
rights to indemnity and contribution hereunder may be limited by federal or
state securities laws.
(p) None of the issuance and sale of the Shares by the
Company, the execution, delivery or performance of this Agreement by the Company
nor the consummation by the Company of the transactions contemplated hereby (i)
requires any consent, approval, authorization or other order of or registration
or filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required for the
registration of the Shares under the Act, the listing of the Shares for trading
on the NASDAQ, the registration of the Common Stock under the Exchange Act and
compliance with the securities or Blue Sky laws of various jurisdictions, all of
which will be, or have been, effected in accordance with this Agreement and
except for the NASD's clearance of the underwriting terms of the offering
contemplated hereby as required under the NASD's Rules of Fair Practice), (ii)
conflicts with or will conflict with or constitutes or will constitute a breach
of, or a default under, the Company's articles of incorporation or the Company's
bylaws or any agreement, indenture, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which any of its properties
may be bound, (iii) violates any statute, law, regulation, ruling, filing,
judgment, injunction, order or decree applicable to the Company or any of its
subsidiaries or any of their properties, or (iv) results in a breach of, or
default or Debt Repayment Triggering event (as defined below) under, or results
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, or
requires the consent of any other party to, any Existing Instrument, except for
such conflicts, breaches, defaults, liens, charges or encumbrances that will
not, individually or in the aggregate, result in a Material Adverse Effect. As
used herein, a "Debt Repayment Triggering Event" means any event or condition
that gives, or with the giving of notice or lapse of time would give, the holder
of any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(q) Except as described in the Time of Sale Information
and the Prospectus, and except for options to purchase capital stock issued
pursuant to the Company's 1997 Stock Incentive Plan and 2000 Stock Incentive
Plan, neither the Company nor any of its subsidiaries has outstanding and at the
Closing Date and the Additional Closing Date, as the case may be, will have
outstanding any options to purchase, or any warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, any shares of Common Stock or any such warrants or convertible
securities or obligations. No holder of securities of the Company has rights to
the registration of any securities of the Company as a result of or in
connection with the filing of the Registration Statement or the consummation of
the transactions contemplated hereby that have not been satisfied or heretofore
waived in writing.
(r) Each of KPMG LLP and Ernst & Young LLP is an
independent registered public accounting firm with respect to the Company and
its subsidiaries within the applicable
- 13 -
rules and regulations adopted by the Commission and the Public Accounting
Oversight Board (United States) and as required by the Securities Act and the
Exchange Act.
(s) The financial statements, together with related
schedules and notes, included in the Registration Statement, the Time of Sale
Information and the Prospectus (and any amendment or supplement thereto),
present fairly the financial condition, results of operations, cash flows and
changes in financial position of the Company on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Registration Statement, the Time of Sale Information and the Prospectus
(and any amendment or supplement thereto) is accurately presented and prepared
on a basis consistent with such financial statements and the books and records
of the Company. The pro forma consolidated financial statements together with
related notes thereto included in the Registration Statement, the Time of Sale
Information and the Prospectus (and any amendment or supplement thereto) have
been prepared in accordance with the Commission's rules and regulations with
respect to pro forma financial statements and have been properly presented on
the bases described therein. The pro forma adjustments made therein have been
properly applied to the historical amounts in the compilation of such
statements. Additionally, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. No other financial
statements or schedules are required to be included in the Registration
Statement.
(t) Except as otherwise disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus, neither the Company
nor any subsidiary has engaged in or effected any transaction or arrangement
that would constitute an "off-balance sheet arrangement" (as defined in Item 303
of Regulation S-K of the Commission ("Regulation S-K")). All non-GAAP financial
measures (as defined in Regulation G of the Commission ("Regulation G")) have
been presented in compliance with Regulation G and Item 10 of Regulation S-K.
(u) Except as disclosed in the Registration Statement,
the Time of Sale Information and the Prospectus (or any amendment or supplement
thereto), subsequent to the respective dates as of which such information is
given in the Registration Statement, the Time of Sale Information and the
Prospectus (or any amendment or supplement thereto), (i) neither the Company nor
any of its subsidiaries has incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any material transaction that is
not in the ordinary course of business, (ii) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its business
or properties from fire, flood, windstorm, accident or other calamity, whether
or not covered by insurance, (iii) neither the Company nor any of its
subsidiaries has paid or declared any dividends or other distributions with
respect to its capital stock and the Company is not in default under the terms
of any class of capital stock of the Company or any outstanding debt
obligations, (iv) there has not been any change in the authorized or outstanding
capital stock of the Company (other than pursuant to the exercise of
- 14 -
stock options granted under stock option plans of the Company disclosed in the
Prospectus) or any material change in the indebtedness of the Company (other
than in the ordinary course of business) and (v) there has not been any Material
Adverse Effect, or any development involving or that may reasonably be expected
to result in a Material Adverse Effect.
(v) All offers and sales of the Company's capital stock
and other debt or other securities prior to the date hereof were made in
compliance with or were the subject of an available exemption from the Act and
all other applicable state and federal laws or regulations.
(w) The Common Stock (including the Shares) is registered
pursuant to Section 12(g) of the Exchange Act and is listed on the NASDAQ, and
the Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the NASDAQ, nor has the Company received any
notification that the Commission or the NASD is contemplating terminating such
registration or listing.
(x) Other than excepted activity pursuant to Regulation M
under the Exchange Act, the Company has not taken and will not take, directly or
indirectly, any action that constituted, or any action designed to, or that
might reasonably be expected to cause or result in or constitute, under the Act
or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or for any other purpose.
(y) The Company and each of its subsidiaries have filed
all tax returns required to be filed (other than certain state or local tax
returns, as to which the failure to file, individually or in the aggregate,
would not have a Material Adverse Effect), which returns are complete and
correct, and neither the Company nor any subsidiary is in default in the payment
of any taxes that were payable pursuant to said returns or any assessments with
respect thereto. Except as disclosed in the Time of Sale Information and the
Prospectus, all deficiencies asserted as a result of any federal, state, local
or foreign tax audits have been paid or finally settled and no issue has been
raised in any such audit that, by application of the same or similar principles,
reasonably could be expected to result in a proposed deficiency for any other
period not so audited. There are no outstanding agreements or waivers extending
the statutory period of limitation applicable to any federal, state, local or
foreign tax return for any period. On the Closing Date and the Additional
Closing Date, as the case may be, all stock transfer and other taxes that are
required to be paid in connection with the sale of the shares to be sold by the
Company to the Underwriters will have been fully paid by the Company and all
laws imposing such taxes will have been complied with.
(z) Except as set forth in the Time of Sale Information
and the Prospectus, there are no transactions with "affiliates" (as defined in
Rule 405 promulgated under the Act) or any officer, director or security holder
of the Company (whether or not an affiliate) that are required by the Act to be
disclosed in the Registration Statement. Additionally, no relationship, direct
or indirect, exists between the Company or any of its subsidiaries on the one
hand, and the directors, officers, stockholders, customers or suppliers of the
Company or any subsidiary on the
- 15 -
other hand that is required by the Act to be disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus that is not so
disclosed.
(aa) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
investment company within the meaning of the Investment Company Act of 1940, as
amended.
(bb) Except as otherwise disclosed in the Prospectus, each
of the Company and its subsidiaries has good and valid title to all property
(real and personal) described in the Prospectus as being owned by it, free and
clear of all liens, claims, security interests or other encumbrances except (i)
such as are described in the Prospectus or (ii) such as are not materially
burdensome and do not have or will not result in a Material Adverse Effect to
the use of the property or the conduct of the business of the Company. All
property (real and personal) held under lease by the Company and its
subsidiaries is held by it under valid, subsisting and enforceable leases with
only such exceptions as in the aggregate are not materially burdensome and do
not have or result in a Material Adverse Effect.
(cc) Except as otherwise disclosed in the Time of Sale
Information and the Prospectus, there is and has been no failure on the part of
the Company or any of its directors or officers, in their capacities as such, to
comply in all material respects with any provision of the Sarbanes Oxley Act of
2002. The Company and each of its subsidiaries maintain disclosure controls and
procedures (as defined in Rule 13a-15(e) of the Exchange Act) that are designed
to ensure that information required to be disclosed by the Company in the
reports that it has filed or will file under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the
Commission's rules and forms. Except as otherwise disclosed in the Time of Sale
Information and the Prospectus, the Company and each of its subsidiaries
maintain internal control over financial reporting (as defined in Rule 13a-15(f)
of the Commission) sufficient to provide reasonable assurance regarding the (A)
reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting
principles, (B) maintenance of records that in reasonable detail accurately and
fairly reflect transactions and dispositions of the assets of the Company and
its subsidiaries, (C) recording of transactions as necessary to permit
preparation of financial statements in accordance with generally accepted
accounting principles and that receipts and expenditures of the Company and its
subsidiaries are being made only in accordance with authorizations of management
and directors of the Company or the applicable subsidiary, and (D) prevention or
timely detection of unauthorized acquisition, use or disposition of the
Company's or its subsidiaries' assets that could have a material effect on the
financial statements.
(dd) Except as otherwise disclosed in the Time of Sale
Information and the Prospectus, neither the Company nor any of its subsidiaries,
since each has been a subsidiary of the Company, nor, to the knowledge of the
Company, any employee or agent of the Company or any of its subsidiaries, has,
directly or indirectly, (i) made any unlawful contribution to any candidate for
political office, or failed to disclose fully any contribution in violation of
law or (ii) made any payment to any federal, state, local or foreign
governmental official, or other person
- 16 -
charged with similar public or quasi-public duties, other than payments required
or permitted by the laws of the United States or any jurisdiction thereof or
applicable foreign jurisdictions.
(ee) Except as otherwise disclosed in the Time of Sale
Information and the Prospectus, the Company and its subsidiaries are (i) in
compliance with any and all applicable federal, state, local and foreign laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or other approvals would not, individually or in the
aggregate, have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has been named as a "potentially responsible party" under the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended. Neither the Company nor any of its subsidiaries owns, leases or
occupies any property that appears on any list of hazardous sites compiled by
any state or local governmental agency.
(ff) Except as otherwise disclosed in the Time of Sale
Information and the Prospectus, each of the Company and its subsidiaries owns
and has full right, title and interest in and to, or has valid licenses to use
or distribute, each material trade name, trademark, service xxxx, patent,
copyright, approval, trade secret and other similar rights (collectively
"Intellectual Property") under which the Company and its subsidiaries conduct
all or any material part of its business, and the Company has not granted any
right or license with respect to, any such Intellectual Property except where
the failure to own or obtain a license or right to use or distribute, or the
grant of such right or license with respect to, any such Intellectual Property
has not and will not have a Material Adverse Effect; there is no claim of
infringement, invalidity, misappropriation or other adverse claim pending before
a court or other governmental authority against the Company or its subsidiaries
with respect to any material Intellectual Property and neither the Company nor
any of its subsidiaries has received notice or otherwise become aware that any
material Intellectual Property that it uses or has used in the conduct of its
business infringes upon or conflicts with the rights of any third party.
(gg) The Company has procured Lock-Up Agreements, in the
form of Exhibit A attached hereto, from each of the Company's executive officers
and directors.
(hh) Except as disclosed to the Representatives in writing
prior to the date hereof, to the knowledge of the Company, no officer, director
or nominee for director of the Company has a direct or indirect affiliation or
association with any member of the NASD.
(ii) Except as otherwise disclosed in the Time of Sale
Information and the Prospectus, the Company and each of its subsidiaries are
insured against such losses and risks and in such amounts as are customary in
the businesses in which it is engaged; and neither the
- 17 -
Company nor any of its subsidiaries has reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a comparable cost.
(jj) Except as otherwise disclosed in the Time of Sale
Information and the Prospectus, the Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
the Company, its subsidiaries or their "ERISA Affiliates" (as defined below) are
in compliance in all material respects with ERISA and all other applicable state
and federal laws. "ERISA Affiliate" means, with respect to the Company or a
subsidiary, any member of any group or organization described in Sections
414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the
"Code") of which the Company or such subsidiary is a member. No "reportable
event" (as defined in ERISA) has occurred or is reasonably expected to occur
with respect to any "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan" established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such "employee benefit plan" were terminated, would have
any "amount of unfunded benefit liabilities" (as defined in ERISA). Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act, that
would cause the loss of such qualification.
(kk) The statements, (including the assumptions described
therein) included in the Registration Statement, the Time of Sale Information
and the Prospectus, including certain statements under the heading "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
are within the coverage of Rule 175(b) under the Act because such data
constitute forward looking statements as defined in Rule 175(c) were made by the
Company with a reasonable basis and reflect the Company's good faith estimate of
the matters described therein.
7. Expenses. Whether or not the transactions contemplated hereby
are consummated or this Agreement becomes effective or is terminated, the
Company agrees to pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses of the Company in connection with the preparation, printing and filing
of the Registration Statement and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof and of any Preliminary
Prospectus to the Underwriters and dealers; (ii) the cost of printing and
delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, the Prospectus, each
Preliminary Prospectus, the Time of Sale Information, the Blue Sky memoranda,
the Master
- 18 -
Agreement Among Underwriters, this Agreement, the Selected Dealers Agreement and
all amendments or supplements to any of them as may be reasonably requested for
use in connection with the offering and sale of the Shares; (iii) consistent
with the provisions of Section 5(i), all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws or
Blue Sky laws, including reasonable attorneys' fees and out-of-pocket expenses
of the counsel for the Underwriters in connection therewith; (iv) the filing
fees incident to securing any required review by the NASD of the fairness of the
terms of the sale of the Shares and the reasonable fees and disbursements of the
Underwriters' counsel relating thereto; (v) the fees and expenses associated
with including the Shares on the NASDAQ; (vi) the cost of preparing stock
certificates; (vii) the costs and charges of any transfer agent or registrar;
(viii) the cost of the tax stamps, if any, in connection with the issuance and
delivery of the Shares to the respective Underwriters; (ix) all other fees,
costs and expenses referred to in Item 14 of the Registration Statement; and (x)
the transportation, lodging, graphics and other expenses incidental to the
Company's preparation for and participation in the "roadshow" for the offering
contemplated hereby. Except as provided in this Section 7 and in Section 8
hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel. In addition, in the event that the proposed
offering is terminated for the reasons set forth in Section 5(m) hereof, the
Company agrees to reimburse the Underwriters as provided in Section 5(m).
8. Indemnification and Contribution. Subject to the limitations
in this paragraph below, the Company agrees to indemnify and hold harmless you
and each other Underwriter, the directors, officers, employees and agents of
each Underwriter, and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses, including
reasonable costs of investigation and attorneys' fees and expenses
(collectively, "Damages") arising out of or based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, in the Registration Statement, the Time of Sale Information, any
Issuer Free Writing Prospectus or the Prospectus or in any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading, except to the extent that any such Damages
arise out of or are based upon an untrue statement or omission or alleged untrue
statement or omission that has been made therein or omitted therefrom in
reliance upon and in conformity with the information furnished in writing to the
Company by or on behalf of any Underwriter through you, expressly for use in
connection therewith or (ii) any failure of the Company to perform its
obligations hereunder or under law.
- 19 -
This indemnification shall be in addition to any liability that the
Company may otherwise have.
In addition to its other obligations under this Section 8, the Company
agrees that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any inaccuracy in the representations and warranties
of the Company herein or failure to perform its obligations hereunder, all as
set forth in this Section 8, the party against whom indemnification is being
sought will reimburse each Underwriter on a monthly basis for all reasonable
legal or other out-of-pocket expenses incurred in connection with investigating
or defending any such claim, action, investigation, inquiry or other proceeding
(to the extent documented by reasonably itemized invoices therefor),
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the obligation of the Company to reimburse each Underwriter
for such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. To the extent that any
such interim reimbursement payment is so held to have been improper, each
Underwriter shall promptly return it to the person(s) from whom it was received.
Any such interim reimbursement payments that are not made to the Underwriters
within 30 days of a request for reimbursement shall bear interest compounded
daily at a rate determined on the basis of the base lending rate announced from
time to time by The Wall Street Journal from the date of such request.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Company, such Underwriter or such controlling person shall promptly
notify in writing the party(s) against whom indemnification is being sought (the
"indemnifying party"), and such indemnifying party shall assume the defense
thereof, including the employment of counsel reasonably acceptable to such
Underwriter or such controlling person and the payment of all reasonable fees of
and expenses incurred by such counsel. Such Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person, unless
(i) the indemnifying party has agreed in writing to pay such fees and expenses,
(ii) the indemnifying party has failed to assume the defense and employ counsel
reasonably acceptable to the Underwriter or such controlling person within a
reasonable period of time after receiving notice of the commencement thereof or
(iii) the named parties to any such action (including any impleaded parties)
include both such Underwriter or such controlling person and the indemnifying
party, and such Underwriter or such controlling person shall have been advised
by its counsel that one or more legal defenses may be available to the
Underwriter that could reasonably be expected to conflict with or be
inconsistent with those available to the Company, or that representation of such
indemnified party and any indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or not
such
- 20 -
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the indemnifying party shall not
have the right to assume the defense of such action on behalf of such
Underwriter or such controlling person (but the Company shall not be liable for
the fees and expenses of more than one counsel for the Underwriters and such
controlling persons)). The indemnifying party shall not be liable for any
settlement of any such action effected without its written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any Underwriter and any such controlling person from and against
any loss, claim, damage, liability or expense by reason of such settlement or
judgment, but in the case of a judgment only to the extent stated in the first
paragraph of this Section 8.
Each Underwriter agrees, severally and jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing several indemnity from the Company to each Underwriter, but only with
respect to information furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the Prospectus, the
Time of Sale Information, any Issuer Free Writing Prospectus or any Preliminary
Prospectus, or any amendment or supplement thereto. If any action or claim shall
be brought or asserted against the Company, any of its directors, any of its
officers or any such controlling person based on the Registration Statement, the
Prospectus, the Time of Sale Information or any Preliminary Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph, such Underwriter shall have
the rights and duties given to the Company by the immediately preceding
paragraph (except that if the Company shall have assumed the defense thereof
such Underwriter shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Underwriter's expense), and the Company, its
directors, any such officers and any such controlling persons, shall have the
rights and duties given to the Underwriters by the immediately preceding
paragraph.
In any event, no indemnifying party shall, without the prior written
consent of the indemnified party, settle or compromise or consent to the entry
of any judgment in any proceeding or threatened claim, action, suit or
proceeding in respect of which any indemnified party is or could have been a
party and indemnification may be sought hereunder (whether or not the
indemnified party is a party to such claim, action, suit or proceeding) unless
such settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
If the indemnification provided for in this Section 8 is unavailable or
insufficient for any reason whatsoever to an indemnified party in respect of any
Damages referred to herein, then an indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Damages (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
- 21 -
hand, and the Underwriters on the other hand, from the offering and sale of the
Shares 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 and
several fault of the Company on the one hand, and the Underwriters on the other
hand, in connection with the statements or omissions that resulted in such
Damages as well as any other relevant equitable considerations. The relative and
several benefits received by the Company on the one hand, and the Underwriters
on the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus; provided that, in the event that the Underwriters shall have
purchased any Additional Shares hereunder, any determination of the relative
benefits received by the Company or the Underwriters from the offering of the
Shares shall include the net proceeds (before deducting expenses) received by
the Company and the underwriting discounts and commissions received by the
Underwriters, from the sale of such Additional Shares, in each case computed on
the basis of the respective amounts set forth in the notes to the table on the
cover page of the Prospectus. The relative fault of the Company on the one hand,
and the Underwriters on the other hand, shall be determined by reference to,
among other things, whether 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 on the one hand, or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 was determined by a pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Damages
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount of the underwriting commissions received by such underwriter in
connection with the Shares underwritten by it and distributed to the public. 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 to
contribute pursuant to this Section 8 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto (or such numbers of Firm Shares increased as set forth in Section 10
hereof) and not joint.
Notwithstanding the second paragraph of this Section 8, any Damages for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as Damages are incurred after receipt of
- 22 -
reasonably itemized invoices therefor. The indemnity, contribution and
reimbursement agreements contained in this Section 8 and the representations and
warranties of the Company set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, the
Company, its directors or officers or any person controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor to any Underwriter or any person
controlling any Underwriter, or to the Company, its directors or officers or any
person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
8.
It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in the second paragraph of this
Section 8, including the amounts of any requested reimbursement payments and the
method of determining such amounts, shall be settled by arbitration conducted
pursuant to the Code of Arbitration Procedure of the NASD. Any such arbitration
must be commenced by service of a written demand for arbitration or written
notice of intention to arbitrate, therein electing the arbitration tribunal. In
the event the party demanding arbitration does not make such designation of an
arbitration tribunal in such demand or notice, then the party responding to said
demand or notice is authorized to do so. Such arbitration would be limited to
the operation of the interim reimbursement provisions contained in the second
and fourth paragraphs of this Section 8, and would not resolve the ultimate
propriety or enforceability of the obligation to reimburse expenses that is
created by the provisions of the second paragraph of this Section 8.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) The Registration Statement shall have become
effective not later than 12:00 noon, New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by the
Representative, and all filings required by Rules 424(b), 430A and 462 under the
Act shall have been timely made.
(b) You shall be reasonably satisfied that since the
respective dates as of which information is given in the Registration Statement,
the Time of Sale Information and Prospectus, (i) there shall not have been any
change in the capital stock of the Company (other than pursuant to the exercise
of stock options granted under stock option plans of the Company disclosed in
the Prospectus) or any material change in the indebtedness (other than in the
ordinary course of business) of the Company, (ii) except as set forth or
contemplated by the Registration Statement, the Time of Sale Information or the
Prospectus, no material oral or written agreement or other transaction shall
have been entered into by the Company that is not in the ordinary course of
business or that could reasonably be expected to result in a material reduction
in the future earnings of the Company, (iii) no loss or damage (whether or not
insured) to the property of the Company shall have been sustained that had or
could reasonably be expected to have a Material Adverse Effect, (iv) no legal or
governmental action, suit or
- 23 -
proceeding affecting the Company or any of its properties that is material to
the Company or that affects or could reasonably be expected to affect the
transactions contemplated by this Agreement shall have been instituted or
threatened and (v) there shall not have been any material change in the
condition (financial or otherwise), business, management, results of operations
or prospects of the Company or its subsidiaries that makes it impractical or
inadvisable in your judgment to proceed with the public offering or purchase of
the Shares as contemplated hereby.
(c) You shall have received on the Closing Date (and the
Additional Closing Date, if any) an opinion of Xxxxxxxxxx Xxxxxxxx LLP, counsel
to the Company, substantially in the form contained in Exhibit B-1 and Xxxxxxx
X. Xxxx, the General Counsel of the Company, substantially in the form contained
in Exhibit B-2.
(d) You shall have received on the Closing Date or
Additional Closing Date, as the case may be, an opinion of Xxxxxx & Bird LLP, as
counsel for the Underwriters, dated the Closing Date or Additional Closing Date,
as the case may be, with respect to the issuance and sale of the Shares, the
Registration Statement and other related matters as you may reasonably request,
and the Company and its counsel shall have furnished to your counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(e) You shall have received letters addressed to you and
dated the date hereof and the Closing Date or the Additional Closing Date, as
the case may be, from the firms of KPMG LLP and Ernst & Young LLP, each an
independent registered public accounting firm.
(f) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued by the Commission and no
proceedings for that purpose shall be pending or, to the knowledge of the
Company, shall be threatened or contemplated by the Commission at or prior to
the Closing Date or Additional Closing Date, as the case may be; (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending or, to the knowledge of the Company, threatened or contemplated by the
authorities of any jurisdiction; (iii) any request for additional information on
the part of the staff of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission or such
authorities; (iv) after the date hereof, no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to you and you did not object thereto in good faith;
and (v) all of the representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects (except for
such representations and warranties qualified by materiality, which
representations and warranties shall be true and correct in all respects) on and
as of the date hereof and on and as of the Closing Date or Additional Closing
Date, as the case may be, as if made on and as of the Closing Date or Additional
Closing Date, as the case may be, and you shall have received a certificate,
dated the Closing Date and signed by the chief executive officer and the chief
financial officer of the Company (or such other officers as are acceptable to
you) to the effect set forth in this Section 9(f) and in Sections 9(b) and 9(g)
hereof.
- 24 -
(g) The Company shall not have failed in any material
respect at or prior to the Closing Date or the Additional Closing Date, as the
case may be, to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date or Additional Closing Date, as the case may be.
(h) The Company shall have furnished or caused to have
been furnished to you such further certificates and documents as you shall have
reasonably requested.
(i) At or prior to the Closing Date, you shall have
received the written Lock-Up Agreements from each of the Company's executive
officers and directors substantially in the form of Exhibit A hereto.
(j) At or prior to the effective date of the Registration
Statement, you shall have received a letter from the Corporate Financing
Department of the NASD confirming that such Department has determined to raise
no objections with respect to the fairness or reasonableness of the underwriting
terms and arrangements of the offering contemplated hereby.
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 you and your counsel.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Additional
Closing Date of the conditions set forth in this Section 9, except that, if the
Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in this Section 9 shall be dated as of the
Additional Closing Date and the opinions called for by paragraphs (c) and (d)
shall be revised to reflect the sale of Additional Shares.
If any of the conditions hereinabove provided for in this Section 9
shall not have been satisfied when and as required by this Agreement, this
Agreement may be terminated by you by notifying the Company of such termination
in writing or by telegram at or prior to such Closing Date, but you shall be
entitled to waive any of such conditions.
10. Effective Date of Agreement. This Agreement shall become
effective upon the later of (a) the execution and delivery hereof by the parties
hereto and (b) release of notification of the effectiveness of the Registration
Statement by the Commission; provided, however, that the provisions of Sections
7 and 8 shall at all times be effective.
11. Defaulting Underwriters. If any one or more of the
Underwriters shall fail or refuse to purchase Firm Shares that it or they have
agreed to purchase hereunder, and the aggregate number of Firm Shares that such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of the Firm
- 25 -
Shares, each non-defaulting Underwriter shall be obligated, severally, in the
proportion in which the number of Firm Shares set forth opposite its name in
Schedule I hereto bears to the aggregate number of Firm Shares set forth
opposite the names of all non-defaulting Underwriters or in such other
proportion as you may specify in the Agreement Among Underwriters, to purchase
the Firm Shares that such defaulting Underwriter or Underwriters agreed, but
failed or refused to purchase. If any Underwriter or Underwriters shall fail or
refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares and arrangements satisfactory to you and the Company for
the purchase of such Firm Shares are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case that does not result
in termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven (7) days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement.
12. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company by notice to the Company, if prior to the Closing
Date or the Additional Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, in your sole judgment,
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the NASDAQ, (ii) trading in securities generally on the NYSE or
NASDAQ shall have been suspended or materially limited, or minimum or maximum
prices shall have been generally established on such exchange, or additional
material governmental restrictions, not in force on the date of this Agreement,
shall have been imposed upon trading in securities generally by any such
exchange or by order of the Commission or any court or other governmental
authority, (iii) a general moratorium on commercial banking activities shall
have been declared by either federal or New York State authorities (iv) any
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act (v) any such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities or (vi) there shall have occurred any outbreak
or escalation of hostilities or other international or domestic calamity, crisis
or change in political, financial or economic conditions or other material event
the effect of which on the financial markets of the United States is such as to
make it, in your judgment, impracticable or inadvisable to market the Shares or
to enforce contracts for the sale of the Shares. Notice of such cancellation
shall be promptly given to the Company and its counsel by telegraph, telecopy or
telephone and shall be subsequently confirmed by letter.
13. Information Furnished by the Underwriters. The Company
acknowledges that the fifth, eighth, ninth, tenth, eleventh and twelfth
paragraphs under the caption "Underwriting" in any Preliminary Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you or on your behalf as such information is referred to in Sections
6(c),
- 26 -
6(d), 6(e) and 8 hereof and elsewhere in this Agreement.
14. Underwriter Free- Writing Prospectuses. Each Underwriter
severally agrees that such Underwriter shall not include any "issuer
information" (as defined in Rule 433) in any free writing prospectus used or
referred to by such Underwriter without the prior consent of the Company (any
such issuer information with respect to whose use the Company has given its
consent, "Permitted Issuer Information"); provided that (i) no such consent
shall be required with respect to any such issuer information contained in any
document filed by the Company, and not superseded or corrected by a document
subsequently filed by the Company, with the Commission prior to the use of such
free writing prospectus and (ii) "issuer information," as used in this Section
14, shall not be deemed to include information prepared by or on behalf of such
Underwriter on the basis of or derived from issuer information. Each Underwriter
also severally represents and agrees that such Underwriter has not used or
referred to any free writing prospectus in connection with the offering that
includes any information other than Permitted Issuer Information if such free
writing prospectus conflicts with information contained in (i) the Registration
Statement, including any Preliminary Prospectus or the Prospectus and not
superseded or modified or (ii) any document filed or furnished under the
Exchange Act that is incorporated by reference into the Registration Statement
and not superseded or modified.
15. No Fiduciary Relationship. Each of the Company and the
Underwriters acknowledges and agrees that (i) the purchase and sale of the
Shares pursuant to this Agreement, including the determination of the public
offering price of the Shares and any related discounts and commissions, is an
arm's-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (ii) in connection with the
offering contemplated hereby and the process leading to such transaction each
Underwriter is and has been acting solely as a principal and is not the agent or
fiduciary of the Company or its subsidiaries, or its shareholders, creditors,
employees or any other party, (iii) no Underwriter has assumed or will assume an
advisory or fiduciary responsibility in favor of the Company or its subsidiaries
with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company and its subsidiaries on other matters) and no Underwriter has any
obligation to the Company or its subsidiaries with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (iv) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Company and its subsidiaries, and (v) the Underwriters have not provided
any legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and each of the Company and its subsidiaries has consulted
its own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
- 27 -
15. Miscellaneous. Except as otherwise provided in Sections 5 and
12 hereof, notice given pursuant to any of the provisions of this Agreement
shall be in writing and shall be delivered
(i) to the Company
EMS Technologies, Inc.
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
with a copy to
Xxxxxxxxxx Xxxxxxxx LLP
Suite 2800
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
(ii) to the Underwriters
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
with a copy to
Xxxxxx & Bird LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company and its directors and officers.
16. Applicable Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of Florida without
reference to choice of law principles thereunder.
This Agreement may be signed in various counterparts, which together
shall constitute one and the same instrument.
This Agreement shall be effective when, but only when, at least one
counterpart hereof
- 28 -
shall have been executed on behalf of each party hereto.
The Company and the Underwriters each hereby irrevocably waive any
right they may have to a trial by jury in respect to any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
[SIGNATURES ON NEXT PAGE]
- 29 -
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
EMS Technologies, Inc.
------------------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
CONFIRMED as of the date first above
mentioned, on behalf of the Representatives
and the other several Underwriters named in
Schedule I hereto.
XXXXXXX XXXXX & ASSOCIATES, INC. XXXXXXX & COMPANY, LLC
By: By:
--------------------------------- ---------------------------------
Authorized Representative Authorized Representative
X.X. XXXXXXX & SONS, INC.
By:
---------------------------------
Authorized Representative
