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Exhibit 1
2,100,000 SHARES
XXXXXX INTERNATIONAL INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_______ __, 1998
Xxxxxx Brothers Inc.
X.X. Xxxxxxxx & Co.
NationsBanc Xxxxxxxxxx LLC
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx International Inc., an Ohio corporation (the "Company"), and
certain shareholders of the Company named in Schedule 2 hereto (the "Selling
Shareholders"), propose to sell an aggregate of 2,100,000 shares (the "Firm
Stock") of the Company's common stock, no par value per share (the "Common
Stock"). Of the 2,100,000 shares of the Firm Stock, 2,000,000 are being sold by
the Company and 100,000 by the Selling Shareholders. In addition, the Company
proposes to grant to the Underwriters named in Schedule 1 hereto (the
"Underwriters") an option to purchase up to an additional 315,000 shares of the
Common Stock on the terms and for the purposes set forth in Section 5 (the
"Option Stock"). The Firm Stock and the Option Stock, if purchased, are
hereinafter collectively called the "Stock." This is to confirm the agreement
concerning the purchase of the Stock from the Company and the Selling
Shareholders by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1 (No. 333-_______),
including Amendments No. [__] thereto, with respect to the Stock has
(i) been prepared by the Company in conformity with the requirements
of the Securities Act of 1933 (the "Securities Act") and the rules
and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed
with the Commission under the Securities Act, and (iii) become
effective under the Securities Act; a final prospectus is now
proposed to be filed with the Commission. Copies of such
registration statement, Amendments No. [__] thereto and the form of
such final prospectus have been delivered by the Company to you as
the representatives (the "Representatives") of the Underwriters. As
used in this Agreement, "Effective Time" means the date and the time
as of which such registration statement was declared effective by
the Commission; "Effective Date" means the date of the Effective
Time; "Preliminary Prospectus" means each prospectus included in
such registration statement or amendments thereof before it became
effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration statement, as amended at the
Effective Time, including all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations in accordance with Section 6(a) hereof and
deemed to be a part of the Registration Statement as of the
Effective Time pursuant to paragraph (b) of Rule 430A of the Rules
and Regulations; and "Prospectus" means such final prospectus, as
first filed with the Commission pursuant to paragraph (1) or (4) of
Rule 424(b) of the Rules and Regulations with any changes thereto
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made by the Company with the consent of the Representatives. The
Commission has not issued any order preventing or suspending the use
of any Preliminary Prospectus. "Rule 462(b) Registration Statement"
means a registration statement filed pursuant to Rule 462(b) of the
Rules and Regulations relating to the offering covered by the
Registration Statement.
(b) The Registration Statement conforms, and any Rule
462(b) Registration Statement and the Prospectus and any
post-effective amendments or supplements to the Registration
Statement or the Prospectus when they become effective or are filed
with the Commission, as the case may be, conform in all respects to
the requirements of the Securities Act and the Rules and Regulations
and do not and will not, as of the applicable effective date (as to
the Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) 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 (as to the Prospectus, in
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 Registration
Statement or 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.
(c) The Company and each of its subsidiaries (as defined in
Section 17) have been duly incorporated and are validly existing as
corporations in good standing (or the local law equivalent) under
the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing (or the local
law equivalent) as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification, except
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries
(taken as a whole), and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged. The only subsidiaries of the
Company are the subsidiaries listed on Exhibit 21 to the
Registration Statement.
(d) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description thereof contained in the Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued and are fully paid
and non-assessable and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(e) The shares of the Stock to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued, fully paid and
non-assessable; and the Stock will conform to the description
thereof contained in the Prospectus.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The execution, delivery and performance of this
Agreement by the Company and the consummation of the transactions
contemplated hereby which are described in the Registration
Statement and the Prospectus (hereinafter, the "Reorganization")
will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter,
code of regulations or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation
of any court or governmental agency or body having
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jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets; and except for the registration of the
Stock under the Securities Act and the Rules and Regulations and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Exchange Act
of 1934 (the "Exchange Act") and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Stock by the Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby and the
Reorganization, other than such actions as are contemplated in the
Prospectus or such actions as have already been taken.
(h) [Except as described in the Registration Statement, (i)
the Company has not sold or issued any shares of Common Stock during
the six-month period preceding the date of the Prospectus, including
any sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act and (ii) there is no commitment, plan or arrangement
to issue, and no outstanding option, warrant or other right calling
for the issuance of, any share of capital stock of the Company or of
any subsidiary or any security or other instrument that by its terms
is convertible into exercisable for, or exchangeable for capital
stock of the Company.]
(i) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus nor has the Company incurred or
undertaken any liability or obligation, direct or contingent, that
are material to the Company except for liabilities or obligations
(i) incurred or undertaken in the ordinary course of business or
(ii) described in the Registration Statement, and, since such date,
there has not been any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries (taken as a whole),
otherwise than as set forth or contemplated in the Prospectus.
(j) The financial statements (including the related notes
and supporting schedules) filed as part of the Registration
Statement or included in the Prospectus present fairly in all
material respects the financial condition and results of
operations of the entities purported to be shown thereby, at
the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
The pro forma financial statements and other pro forma
financial information (including the notes thereto) included in the
Registration Statement and the Prospectus (i) present fairly in all
material respects the information shown therein, (ii) have been
prepared in accordance with the applicable requirements of
Rule 11-02 of the Rules and Regulations, (iii) have been
prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements
and (iv) have been properly compiled on the basis described
therein and the assumptions used in the preparation of the
pro forma financial statements and other pro forma
information (including the notes thereto) and included in the
Registration Statement and the Prospectus are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(k) Coopers & Xxxxxxx L.L.P., who have certified certain
financial statements of the Company, whose report appears in the
Prospectus and who have delivered
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the initial letter referred to in Section 9(g) hereof, are
independent public accountants as required by the Securities Act and
the Rules and Regulations.
(l) The Company and each of its subsidiaries do not own any
real property. The Company and each of its subsidiaries have good
and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and all real property and buildings
held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the
Company and its subsidiaries.
(m) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries.
(n) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights and licenses necessary for
the conduct of their respective businesses. The Company has no
reason to believe that the conduct of its business will conflict
with, and has not received any notice of any claim of conflict with,
any such rights of others, nor, to the best of the Company's
knowledge is there an infringement by others of such rights of the
Company which would result in a material adverse effect on the
stockholders' equity, assets, liabilities, business, results of
operations, condition (financial or otherwise), cash flows, affairs
or prospects of the Company and its subsidiaries, taken as a whole
(a "Material Adverse Effect").
(o) There are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of
which any property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a Material Adverse
Effect; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(p) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
as exhibits to the Registration Statement.
(q) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other
hand, which is required to be described in the Prospectus which is
not so described.
(r) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which might
be expected to have a Material Adverse Effect.
(s) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable
event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company would
have any liability; the Company has not incurred and does not expect
to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action
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or by failure to act, which would cause the loss of such
qualification.
(t) The Company has filed all federal, state, local and
foreign income and franchise tax returns required to be filed
through the date hereof and has paid all taxes due thereon, and no
tax deficiency has been determined adversely to the Company or any
of its subsidiaries which has had (nor does the Company have any
knowledge of any tax deficiency which, if determined adversely to
the Company or any of its subsidiaries, might have) a Material
Adverse Effect.
(u) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or
granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital stock.
(v) The Company (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access
to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(w) Neither the Company nor any of its subsidiaries (i) is
in violation of its charter, code of regulations or by-laws, (ii) is
in default in any material respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant
or condition contained in any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it
is a party or by which it is bound or to which any of its properties
or assets is subject or (iii) is in violation in any respect of any
law, ordinance, governmental rule, regulation or court decree to
which it or its property or assets may be subject or has failed to
obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business where such violation
or failure would have a Material Adverse Effect. Each such
indenture, mortgage, deed of trust, loan agreement, lease license or
other agreement is in full force and effect.
(x) Neither the Company nor any of its subsidiaries, nor
any director, officer, agent, employee or other person associated
with or acting on behalf of the Company or any of its subsidiaries,
has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(y) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest) at,
upon or from any of the property now or previously owned or leased
by the Company or its subsidiaries in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action which would not have, or
could not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a Material
Adverse Effect; there has been no material spill, discharge, leak,
emission,
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injection, escape, dumping or release of any kind onto such property
or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its
subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would
not have or would not be reasonably likely to have, singularly or in
the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a Material Adverse
Effect; and the terms "hazardous wastes", "toxic wastes", "hazardous
substances" and "medical wastes" shall have the meanings specified
in any applicable local state, federal and foreign laws or
regulations with respect to environmental protection.
(z) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
(aa) The Company and each of its subsidiaries possess such
permits, licenses, approvals, consents, orders and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies, court, department, commission or any board, bureau, review
board or similar organization (collectively, "Authority") necessary
to conduct the business now operated by them, except where the
failure to possess the same would not, singly or in the aggregate,
have a Material Adverse Effect; the Company and each of its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses, which singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
(ab) The Company and each of its subsidiaries are in
compliance with all applicable laws, statutes, ordinances, rules
regulations, injunctions or decrees, certificates of need, or any
other published requirements or mandatory policies of any Authority
(collectively, "Laws") of any applicable jurisdiction, the
enforcement of which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any of its subsidiaries has received any written
notice from any Authority to the effect that the Company or any
subsidiary is not in compliance with any Laws, nor that the Company
or any subsidiary is the subject or target of any investigation with
respect to any violation or possible violation of any Laws, the
violation of or non-compliance with which would reasonably be
expected to have a Material Adverse Effect.
(ac) The Company has been advised that the Common Stock
(including the Stock) has been approved for quotation on the Nasdaq
National Market, upon official notice of issuance thereof, with
trading scheduled to begin at the Effective Time, or at such later
time as the Underwriters may request.
2. Representations, Warranties and Agreements of the Selling
Shareholders. Each Selling Shareholder severally represents, warrants and agrees
that:
(a) Such Selling Shareholder has, and immediately prior
to the First Delivery Date (as defined in Section 5 hereof) will
have, good and valid title to the shares of Stock to be sold by such
Selling Shareholder hereunder on such date, free and clear of all
liens, encumbrances, equities or claims; and upon delivery of such
shares and payment therefor pursuant hereto, good and valid title to
such shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the several Underwriters.
(b) Such Selling Shareholder has full right, power and
authority to enter into this Agreement; the execution, delivery and
performance of this Agreement by such Selling Shareholder and the
consummation by such Selling Shareholder of the transactions
contemplated hereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument
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to which such Selling Shareholder is a party or by which such
Selling Shareholder is bound or to which any of the property or
assets of such Selling Shareholder is subject, nor will such actions
result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over such Selling Shareholder or the property or assets
of such Selling Shareholder; and, except for the registration of the
Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement by such Selling Shareholder and the consummation by
such Selling Shareholder of the transactions contemplated hereby.
(c) The Registration Statement and the Prospectus and
any further amendments or supplements to the Registration Statement
or the Prospectus when they become effective or are filed with the
Commission, as the case may be, do not and will not, as of the
applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) 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 or 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.
(d) Such Selling Shareholder has no reason to believe
that the representations and warranties of the Company contained in
Section 1 hereof are not materially true and correct, is familiar
with the Registration Statement and the Prospectus (as amended or
supplemented) and has no knowledge of any material fact, condition
or information not disclosed in the Registration Statement, as of
the effective date, or the Prospectus (or any amendment or
supplement thereto), as of the applicable filing date, which has
adversely affected or may adversely affect the business of the
Company and is not prompted to sell shares of Common Stock by any
information concerning the Company which is not set forth in the
Registration Statement and the Prospectus.
(e) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to cause
or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
shares of the Stock.
3. Purchase of the Stock by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 2,000,000 shares of
the Firm Stock and each Selling Shareholder hereby agrees to sell the number of
shares of the Firm Stock set forth opposite his or her name in Schedule 2
hereto, severally and not jointly, to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares
of the Firm Stock set opposite that Underwriter's name in Schedule 1 hereto.
Each Underwriter shall be obligated to purchase from the Company, and from each
Selling Shareholder, that number of shares of the Firm Stock which represents
the same proportion of the number of shares of the Firm Stock to be sold by the
Company, and by each Selling Shareholder, as the number of shares of the Firm
Stock set forth opposite the name of such Underwriter in Schedule 1 represents
of the total number of shares of the Firm Stock to be purchased by all of the
Underwriters pursuant to this Agreement. The respective purchase obligations of
the Underwriters with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 315,000 shares of Option Stock. Such option is granted solely for
the purpose of covering
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overallotments in the sale of Firm Stock and is exercisable as provided in
Section 5 hereof. Shares of Option Stock shall be purchased severally for the
account of the Underwriters in proportion to the number of shares of Firm Stock
set opposite the name of such Underwriters in Schedule 1 hereto. The respective
purchase obligations of each Underwriter with respect to the Option Stock shall
be adjusted by the Representatives so that no Underwriter shall be obligated to
purchase Option Stock other than in 100 share amounts. The price of both the
Firm Stock and any Option Stock shall be $_____ per share.
The Company and the Selling Shareholders shall not be obligated to
deliver any of the Stock to be delivered on the First Delivery Date or the
Second Delivery Date (as hereinafter defined), as the case may be, except upon
payment for all the Stock to be purchased on such Delivery Date as provided
herein.
4. Offering of Stock by the Underwriters.
Upon authorization by the Representatives of the release of the Firm
Stock, the several Underwriters propose to offer the Firm Stock for sale upon
the terms and conditions set forth in the Prospectus.
5. Delivery of and Payment for the Stock. Delivery of and
payment for the Firm Stock shall be made at the offices of Xxxxxx Brothers Inc.,
Three World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York
City time, on the third full business day following the Effective Date or at
such other date or place as shall be determined by agreement between the
Representatives, the Company and the Selling Shareholders. This date and time
are sometimes referred to as the "First Delivery Date." On the First Delivery
Date, the Company and the Selling Shareholders shall deliver or cause to be
delivered certificates representing the Firm Stock to the Representatives for
the account of each Underwriter against payment to or upon the order of the
Company and the Selling Shareholders of the purchase price by certified or
official bank check or checks payable in New York Clearing House (next-day)
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. Upon delivery, the Firm Stock shall be registered in
such names and in such denominations as the Representatives shall request in
writing not less than two full business days prior to the First Delivery Date.
For the purpose of expediting the checking and packaging of the certificates for
the Firm Stock, the Company and the Selling Shareholders shall make the
certificates representing the Firm Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section 3 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Representatives, when the shares of Option
Stock are to be delivered; provided, however, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as the "Second Delivery Date" and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver or
cause to be delivered the certificates representing the Option Stock to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price by certified or official bank
check or checks payable in New York Clearing House (next-day) funds. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Stock shall be registered in such names and
in such denominations as the Representatives shall request in the aforesaid
written notice. For the purpose of expediting the
9
checking and packaging of the certificates for the Option Stock, the Company
shall make the certificates representing the Option Stock available for
inspection by the Representatives in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Second Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act; to make
no further amendment or any supplement to the Registration Statement
or to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives
with copies thereof; to advise the Representatives, promptly after
it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to each of the Representatives and
to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and each
amendment thereto filed with the Commission, including all consents
and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number
of the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement) and any Rule
462(b) Registration Statement and (ii) each Preliminary Prospectus,
the Prospectus and any amended or supplemented Prospectus; and, if
the delivery of a prospectus is required at any time after the
Effective Time in connection with the offering or sale of the Stock
or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to
amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Representatives and, upon their
request, to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably
request of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to
the Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by
the Commission;
(e) Prior to filing with the Commission any amendment to
the Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the consent of the Representatives to the
filing, which consent shall not be unreasonably withheld or delayed;
(f) As soon as practicable after the Effective Date, to
make generally
10
available to the Company's security holders and to deliver to the
Representatives an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date,
to furnish to the Representatives copies of all materials furnished
by the Company to its shareholders and all public reports and all
reports and financial statements furnished by the Company to the
principal national securities exchange upon which the Common Stock
may be listed pursuant to requirements of or agreements with such
exchange (or the Nasdaq National Market if the Common Stock is so
listed thereon) or to the Commission pursuant to the Exchange Act or
any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as
to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Stock; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, offer for sale, sell,
grant any option to purchase or otherwise dispose of (or enter into
any transaction or device which is designed to, or could be expected
to, result in the disposition by any person at any time in the
future of) any shares of Common Stock (other than the Stock and
shares issued 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), sell or grant options, rights or warrants with respect
to any shares of Common Stock (other than the grant of options
pursuant to option plans existing on the date hereof), or waive the
restrictions on sale contained in any agreement or award letter to
which the options or shares of Common Stock of any officer or
director of the Company are subject without the prior written
consent of Xxxxxx Brothers Inc. on behalf of the Representatives;
and to cause each person that was a shareholder of the Company prior
to the issuance of the Stock to be sold hereunder to furnish to the
Representatives, prior to the First Delivery Date, a letter or
letters, in form and substance satisfactory to counsel to the
Underwriters, pursuant to which each such person shall agree not to,
directly or indirectly, offer for sale, sell, grant any option to
purchase or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any shares
of Common Stock for a period of 180 days from the date of the
Prospectus, without the prior written consent of Xxxxxx Brothers
Inc. on behalf of the Representatives;
(j) Prior to the Effective Date, to apply for the inclusion
of the Stock on the Nasdaq National Market and to use its best
efforts to complete that inclusion, subject only to official notice
of issuance or the effectiveness of the Registration Statement and
evidence of satisfactory distribution, prior to the First Delivery
Date;
(k) Prior to filing with the Commission any reports required
by Rule 463 of the Rules and Regulations, to furnish a copy thereof
to the counsel for the Underwriters and receive and consider its
comments thereon, and to deliver promptly to the Representatives a
signed copy of each such report filed by it with the Commission;
(l) To apply the net proceeds from the sale of the Stock
being sold by the Company as set forth in the Prospectus;
(m) To comply with all registration, filings and reporting
requirements of the Exchange Act, which may from time to time be
applicable to the Company and to comply with all provisions of all
undertakings contained in the Registration Statement; and
(n) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the Investment
Company Act of 1940 and the rules and regulations of the
11
Commission thereunder.
7. Further Agreements of the Selling Shareholders. Each Selling
Shareholder agrees:
(a) For a period of 90 days from the date of the
Prospectus, not to, directly or indirectly, offer for sale, sell or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common
Stock (other than the Stock), without the prior written consent of
Xxxxxx Brothers Inc.
(b) That the Stock to be sold by such Selling Shareholder
hereunder is subject to the interest of the Underwriters and that
the obligations of such Selling Shareholder hereunder shall not be
terminated by any act of such Selling Shareholder, by operation of
law, by the death or incapacity of such Selling Shareholder or, in
the case of a trust, by the death or incapacity of any executor or
trustee or the termination of such trust, or the occurrence of any
other event.
(c) To deliver to the Representatives prior to the First
Delivery Date a properly completed and executed United States
Treasury Department Form W-9.
8. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this Agreement; (d) the costs of printing and distributing this Agreement and
any other related documents in connection with the offering, purchase, sale and
delivery of the stock; (e) the filing fees and expenses (including related fees
and expenses of counsel to the Underwriters) incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms of
sale of the Stock; (f) any applicable listing or other related fees; (g) the
fees and expenses of qualifying the Stock under the securities laws of the
several jurisdictions as provided in Section 6(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters, which fees shall not exceed $15,000); (h) the fees
and expenses of any transfer agent or registrar for the Stock; and (i) all other
costs and expenses incident to the performance of the obligations of the Company
and the Selling Shareholders under this Agreement; provided that, except as
provided in this Section 8 and in Section 13, the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Stock which they may sell and the expenses of advertising
any offering of the Stock made by the Underwriters and the Selling Shareholders
shall pay the fees and expenses of their counsel and any transfer taxes payable
in connection with their respective sales of Stock to the Underwriters and
reimburse the Company for their pro rata share of the fees and expenses paid by
the Company in connection with the offering of the Stock.
9. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Shareholders contained herein, to the performance by the Company
and the Selling Shareholders of their obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a) hereof, and the
Representatives shall have received notice thereof, not later than
the first full business day next following the date of this
Agreement or such later date as shall be consented to in writing by
the Representatives; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission; and any request of the Commission
for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied
with.
12
(b) No Underwriter shall have discovered and disclosed
to the Company on or prior to such Delivery Date that the
Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which, in
the reasonable opinion of Kramer, Levin, Naftalis & Xxxxxxx, counsel
for the Underwriters, is material or omits to state a fact which in
the reasonable opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein
not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement,
the Stock, the Registration Statement and the Prospectus, and all
other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) Xxxxxxx, Muething & Xxxxxxx, P.L.L. shall have
furnished to the Representatives their written opinion, as counsel
to the Company, addressed to the Underwriters and dated such
Delivery Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company and each of its subsidiaries
have been duly incorporated and are validly existing as
corporations in good standing (or the local law
equivalent) under the laws of their respective
jurisdictions of incorporation, are duly qualified to do
business and are in good standing (or the local law
equivalent) as foreign corporations in each jurisdiction
in which their respective ownership or lease of property
or the conduct of their respective businesses requires
such qualification, except where the failure to be so
qualified or in good standing would not have a Material
Adverse Effect, and have all power and authority
necessary to own or hold their respective properties and
conduct the businesses in which they are engaged;
(ii) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and
nonassessable and conform to the description thereof
contained in the Prospectus; and all of the issued
shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued
and are fully paid, nonassessable and (except for
directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iii) Other than as set forth in the Prospectus,
there are (A) no preemptive or other rights to subscribe
for or to purchase the capital stock of the Company
arising under the Ohio General Corporation Law, or, to
the knowledge of such counsel, otherwise, (B) to the
knowledge of such counsel no outstanding options,
warrants or other rights calling for the issuance of any
share of capital stock of the Company or other
instrument that by its terms is convertible into,
exercisable for or exercisable for capital stock of the
Company, and no rights, by contract or otherwise, to
require registration under the Securities Act of shares
of Stock, and (C) no restriction upon the voting or
transfer of, any shares of the Stock pursuant to the
Company's charter or by-laws or any agreement or other
instrument known to such counsel;
(iv) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of
which any property or assets of the Company or any of
its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries,
might have a material adverse effect on the consolidated
financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries (taken as a whole); and, to the best of
such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities
or
13
threatened by others;
(v) This Agreement has been duly authorized,
executed and delivered by the Company;
(vi) The shares of Stock being delivered on such
Delivery Date have been duly and validly authorized,
and, when issued and delivered to and paid for by the
Underwriters pursuant to the terms of this Agreement,
will be validly issued, fully paid and non-assessable;
and the shares of Stock being delivered on such Delivery
Date conform to the description thereof contained in the
Prospectus under the caption "Description of Capital
Stock". Upon delivery of the payment for the Stock to be
sold by the Company to the Underwriters pursuant to this
Agreement, each Underwriter (assuming that it acquires
such Shares without notice of any adverse claim, as such
term is used in Section 8-302 of the Uniform Commercial
Code in effect in the State of New York) will acquire
good and marketable title to the Stock so sold and
delivered to it, free and clear of all liens, pledges,
charges, claims, security interests, restrictions on
transfer, agreements or other defects of title
whatsoever (other than those resulting from any action
taken by such Underwriter);
(vii) The Registration Statement, including any
Rule 462(b) Registration Statement, was declared
effective under the Securities Act as of the date and
time specified in such opinion, the Prospectus was filed
with the Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified in such
opinion on the date specified therein and no stop order
suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of such
counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(viii) The Registration Statement, including any
Rule 462(b) Registration Statement, and the Prospectus
and any further amendments or supplements thereto made
by the Company prior to such Delivery Date (other than
the financial statements and related schedules therein,
as to which such counsel need express no opinion) comply
as to form in all material respects with the
requirements of the Securities Act and the Rules and
Regulations;
(ix) All descriptions in the Prospectus of
contracts and other documents to which the Company or
any of its subsidiaries is a party are accurate as
summaries in all material respects. To the best of such
counsel's knowledge, there are no contracts or other
documents which are required to be described in the
Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and
Regulations which have not been described or filed as
exhibits to the Registration Statement;
(x) To the best of such counsel's knowledge,
there are no contracts, agreements or understandings
between the Company and any person granting such person
the right to require the Company to file a registration
statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such
person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statement or in any securities being
registered pursuant to any other registration statement
filed by the Company under the Securities Act;
(xi) The Common Stock (including the Stock) is
duly authorized for listing on the Nasdaq National
Market, subject only to official notice of issuance;
(xii) Except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations and qualifications as may
be required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing
or registration with, any such
14
court or governmental agency or body is required for the
consummation of the Reorganization; and the
Reorganization has been consummated;
(xiii) The issue and sale of the shares of Stock
being delivered on such Delivery Date by the Company and
the compliance by the Company with all of the provisions
of this Agreement and the consummation of the
transactions contemplated hereby and the Reorganization
will not conflict with or result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the
charter, code of regulations, or by-laws of the Company
or any of its subsidiaries, nor will such actions result
in any violation of any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their
properties or assets; and except for the registration of
the Stock under the Securities Act and the Rules and
Regulations and such consents, approvals,
authorizations, registrations or qualifications as may
be required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or filing
or registration with, any such court or governmental
agency or body is required for the execution, delivery
and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby and
the Reorganization;
(xiv) To the best of such counsel's knowledge,
neither the Company nor any subsidiary of the Company is
in violation of its charter, code of regulations or
by-laws and no default by the Company or any subsidiary
exists in the due performance or observance of any
material obligation, agreement, covenant or condition
contained in any material contract or other agreement or
instrument that is described or referred to in the
Registration Statement or the Prospectus or filed as an
exhibit to the Registration Statement;
(xv) To the best of such counsel's knowledge, the
Company and its subsidiaries are in compliance in all
material respects with all applicable and material laws,
statutes, injunctions or decrees, certificates of need,
ordinances, rules or regulations of any Authority of any
applicable jurisdiction except as reflected in the
Prospectus or where the failure to comply would not have
a Material Adverse Effect; and
(xvi) The Company is not, and upon the issuance
and sale of the Stock as contemplated in the Agreement
and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment
company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and
regulations of the Commission thereunder.
In rendering such opinion, such counsel may (i) state
that their opinion is limited to matters governed by the Federal
laws of the United States of America, the laws of the State of Ohio
and the General Corporation Law of the State of Delaware; and (ii)
in respect of matters of fact, rely upon certificates of officers of
the Company or its subsidiaries, provided that such counsel shall
state that they believe that both the Underwriters and they are
justified in relying upon such certificates. Such counsel shall also
have furnished to the Representatives a written statement, addressed
to the Underwriters and dated such Delivery Date, in form and
substance satisfactory to the Representatives, to the effect that
(x) such counsel has acted as counsel to the Company on certain
other matters and has acted as counsel to the Company in connection
with the preparation of the Registration Statement, and (y) based on
the foregoing, no facts have come to the attention of such counsel
which lead them to believe that the Registration Statement, as of
the Effective Date and as of such Delivery Date, contains any 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, or that the Prospectus, as of its
date and as of such Delivery Date, contains any untrue statement of
a material fact or omits to state a material fact required to be
stated therein or
15
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
foregoing opinion and statement may be qualified by a statement to
the effect that such counsel does not assume any responsibility for
the accuracy, completeness or fairness of the financial statements
or financial data contained in the Registration Statement or the
Prospectus except for the statements made in the Prospectus under
the captions "Shares Eligible for Future Sale" and "Description of
Capital Stock," insofar as such statements relate to the Stock and
concern legal matters.
(e) Xxxxxxx, Xxxxxxxx & Xxxxxxx, P.L.L. shall have furnished to the
Representatives their written opinion, as counsel to the Selling
Shareholders, addressed to the Underwriters and dated the First Delivery
Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) Each Selling Shareholder has full right, power and
authority to enter into this Agreement; the execution, delivery and
performance of this Agreement by each Selling Shareholder and the
consummation by each Selling Shareholder of the transactions
contemplated hereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any statute, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which any Selling Shareholder is a party or by which any
Selling Shareholder is bound or to which any of the property or
assets of any Selling Shareholder is subject, nor will such actions
result in any violation of any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over any Selling Shareholder or the
property or assets of any Selling Shareholder; and, except for the
registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution of
the Stock by the Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement by any Selling Shareholder and the
consummation by any Selling Shareholder of the transactions
contemplated hereby;
(ii) This Agreement has been duly executed and delivered
by each Selling Shareholder;
(iv) Immediately prior to the First Delivery Date, each
Selling Shareholder had good and valid title to the shares of Stock
to be sold by such Selling Shareholder under this Agreement, free
and clear of all liens, encumbrances, equities or claims, and full
right, power and authority to sell, assign, transfer and deliver
such shares to be sold by such Selling Shareholder hereunder; and
(v) Good and valid title to the shares of Stock to be
sold by each Selling Shareholder under this Agreement, free and
clear of all liens, encumbrances, equities or claims, has been
transferred to each of the several Underwriters.
In rendering such opinion, such counsel may (i) state that their opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of Ohio and the General Corporation Law of
the State of Delaware and (ii) in rendering the opinion in Section
9(e)(iv) above, rely upon a certificate of each Selling Shareholder in
respect of matters of fact as to ownership of and liens, encumbrances,
equities or claims on the shares of Stock sold by such Selling
Shareholder, provided that such counsel shall furnish copies thereof to
the Representatives and state that they believe that both the Underwriters
and they are
16
justified in relying upon such certificate. Such counsel shall also have
furnished to the Representatives a written statement, addressed to the
Underwriters and dated the First Delivery Date, in form and substance
satisfactory to the Representatives, to the effect that (x) such counsel
has acted as counsel to each Selling Shareholder on a regular basis and
has acted as counsel to each Selling Shareholder in connection with the
preparation of the Registration Statement, and (y) based on the foregoing,
no facts have come to the attention of such counsel which lead them to
believe that the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact relating to any Selling
Shareholder or omitted to state such a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, or that the Prospectus contains any untrue statement of a
material fact relating to any Selling Shareholder or omits to state such a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel does not assume
any responsibility for the accuracy, completeness or fairness of the
financial statements contained in the Registration Statement or the
Prospectus.
(f) The Representatives shall have received from Kramer, Levin,
Naftalis & Xxxxxxx, counsel for the Underwriters, such opinion or
opinions, dated such Delivery Date, with respect to the issuance and sale
of the Stock, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representatives
shall have received from Coopers & Xxxxxxx L.L.P. a letter, in form and
substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, and (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date hereof), the conclusions
and findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(h) At each such Delivery Date, the Representatives shall have
received from Coopers & Xxxxxxx L.L.P. a letter (the "bring-down letter")
of such accountants, addressed to the Underwriters and dated such Delivery
Date (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the
date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the letter furnished pursuant to
clause (g) of this Section 9 and (iii) confirming in all material respects
the conclusions and findings set forth in the letter furnished pursuant to
clause (g) of this Section 9.
(i) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chief Executive Officer and
its chief financial officer stating that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of such Delivery
Date; the Company has complied with all its agreements contained
herein; and the conditions set forth in Sections 9(a) and 9(k) have
been fulfilled; and
17
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading (as to the Prospectus, in
light of the circumstances under which they were made), and (B)
since the Effective Date no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement or the Prospectus.
(j) Each Selling Shareholder shall have furnished to the
Representatives on the First Delivery Date a certificate, dated the First
Delivery Date, signed by, or on behalf of, such Selling Shareholder stating that
the representations, warranties and agreements of such Selling Shareholder
contained herein are true and correct as of the First Delivery Date and that
such Selling Shareholder has complied with all agreements contained herein to be
performed by such Selling Shareholder at or prior to the First Delivery Date.
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion flood, or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus or (ii) since such date there shall not have been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i)
or (ii), is, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(l) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of a majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the Stock
being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) The Nasdaq National Market shall have approved the Stock for
inclusion subject only to official notice of issuance or effectiveness of
the Registration Statement and evidence of satisfactory distribution.
(m) The National Association of Securities Dealers, Inc., upon
review of the terms of the underwriting arrangements for the public
offering of the Stock, shall have raised no objection thereto.
(n) Prior to any Delivery Date, the Company shall have furnished to
the Representatives such other information, certificates and documents as
they may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form
18
and substance reasonably satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter,
its officers and employees and each person, if any, who controls any Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which that Underwriter, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (B) in
any blue sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company) specifically
for the purpose of qualifying any or all of the Stock under the securities laws
of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Stock or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company shall not be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct), and shall reimburse each Underwriter and each
such officer, employee or controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application, in reliance upon and in conformity
with written information concerning such Underwriter furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) The Selling Shareholders, severally in proportion to the number
of shares of Stock to be sold by each of them hereunder, shall indemnify and
hold harmless each Underwriter, its officers and employees, and each person, if
any, who controls any Underwriter within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Stock), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, Registration Statement or the Prospectus, or in any
amendment or supplement thereto, any material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Underwriter, its officers and employees and each such controlling person
for any legal or other expenses reasonably incurred by that Underwriter, its
officers and employees or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Selling
Shareholders shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or in any such amendment or supplement in reliance upon and in conformity with
19
written information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Selling Shareholders may otherwise have to any Underwriter
or any officer, employee or controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors,
and each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company through the Representatives by or on
behalf of that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure; and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnifying party, otherwise than under this Section
10. If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under this Section 10 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company or the Selling Shareholders under this Section
10 if, in the reasonable judgment of the Representatives, it is advisable for
the Representatives and those Underwriters, officers, employees and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the Company or the
Selling Shareholders. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such
20
settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a), 10(b) or 10(c) in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Shareholders on the one hand and the
Underwriters on the other from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Stock purchased under this Agreement
(before deducting expenses) received by the Company and the Selling
Shareholders, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of the Stock
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Shareholders or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 10(e) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10 shall be deemed to include, for
purposes of this Section 10(e), 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 10(e), unless
guilty of a fraudulent misrepresentation (within the meaning of Section 11(F) of
the Securities Act), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Stock underwritten
by it and distributed to the public was offered to the public exceeds the amount
of any damages which such Underwriter has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 10(e) are
several in proportion to their respective underwriting obligations and not
joint.
(f) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to the public offering of the Stock by the
Underwriters set forth on the cover page of, the legend concerning
over-allotments on the inside front cover page of, and the concession and
reallowance figures appearing under the caption "Underwriting" in, the
Prospectus are correct and constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
10. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Stock which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining non-defaulting Underwriter in
Schedule 1 hereto bears to the total number of shares of the Firm Stock set
opposite the names of all the remaining non-defaulting Underwriters in Schedule
1 hereto; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Stock on such Delivery Date if the
total number of shares of the Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total number of shares of the Stock to be purchased on such Delivery Date, and
any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of shares of the Stock which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 3.
21
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Stock to be purchased
on such Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the shares which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
Delivery Date, this Agreement (or, with respect to the Second Delivery Date, the
obligation of the Underwriters to purchase, and of the Company to sell, the
Option Stock) shall terminate without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Shareholders, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 8 and 13. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 11, purchases Firm Stock which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company and the Selling Shareholders for
damages caused by its default. If other underwriters are obligated or agree to
purchase the Stock of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
12. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company and the Selling Shareholders prior to delivery of and payment for the
Firm Stock if, prior to that time, any of the events described in Sections 9(i)
or 9(j) shall have occurred or if the Underwriters shall decline to purchase the
Stock for any reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If the Company or any
Selling Shareholder shall fail to tender the Stock for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company or the Selling Shareholders to perform any agreement on its part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company is not fulfilled, the Company
will reimburse the Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Underwriters in
connection with this Agreement and the proposed purchase of the Stock, and upon
demand the Company shall pay the full amount thereof to the Representatives. If
this Agreement is terminated pursuant to Section 11 by reason of the default of
one or more Underwriters, neither the Company nor any Selling Shareholder shall
be obligated to reimburse any defaulting Underwriter on account of those
expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent
by mail, telex or facsimile transmission to Xxxxxx Brothers Inc.,
Three World Financial Center, New York, New York 10285, Attention:
Syndicate Department (Fax: 212-526- 6588), with a copy, in the case
of any notice pursuant to Section 10(c), to the Director of
Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., 0
Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Xxxxxxx Xxxxxx
(Fax: 000-000-0000), with a copy to Xxxxxxx, Meuthing & Xxxxxxx,
P.L.L. 1800 Provident Tower, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Xx.;
(c) if to any Selling Shareholder, shall be delivered or
sent by mail, telex or facsimile transmission to such Selling
Shareholder at the address set forth on Schedule 2 hereto;
provided, however, that any notice to an Underwriter pursuant to Section 10(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any
22
request, consent, notice or agreement given or made on behalf of the
Underwriters by Xxxxxx Brothers Inc. on behalf of the Representatives.
15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
the Selling Shareholders, and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company and the Selling Shareholders contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Securities Act and (B)
the indemnity agreement of the Underwriters contained in Section 10(b) of this
Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 15, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Shareholders and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
17. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Balance of Page Intentionally Blank]
23
If the foregoing correctly sets forth the agreement of the Company,
the Selling Shareholders and the Underwriters, please indicate your acceptance
in the space provided for that purpose below.
Very truly yours,
XXXXXX INTERNATIONAL INC.
By:_______________________________________
Name:
Title:
The Selling Shareholders:
____________________________
By:_______________________________________
Name:
____________________________
By:_______________________________________
Name:
Accepted:
XXXXXX BROTHERS INC.
X.X. XXXXXXXX & CO.
NationsBanc Xxxxxxxxxx LLC
For themselves and as Representatives
of the Several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By ______________________________
Authorized Representative
24
SCHEDULE 1
----------
Number of
Underwriter Shares
----------- ---------
Xxxxxx Brothers Inc.
X.X. Xxxxxxxx & Co.
NationsBanc Xxxxxxxxxx LLC
Total 2,100,000
---------
25
SCHEDULE 2
----------
Name and Address Number of Shares
of Selling Shareholder of Firm Stock
--------------------------------------------
Total 100,000