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EXHIBIT 1.1
AMRESCO, INC.
COMMON STOCK
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UNDERWRITING AGREEMENT
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, 1996
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THE XXXXXXXX-XXXXXXXX COMPANY, INC.
XXXXX XXXXXXX INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
X.X. XXXXXXXX & CO.
XXXXXXXXXX SECURITIES
XXXXXX XXXXXX & COMPANY, INC.
As representatives of the several
Underwriters named in Schedule I hereto,
c/o The Xxxxxxxx-Xxxxxxxx Company, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Dear Sirs:
AMRESCO, INC., a Delaware corporation (the "Company") proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
1,830,462 shares of common stock, par value $.05 per share (the "Common
Stock"), of the Company (the "Company Firm Shares"), and the shareholders of
the Company named in Schedule II hereto (the "Selling Shareholders") propose,
subject to the terms and conditions stated herein, to sell to the Underwriters
an aggregate of 5,929,538 shares of Common Stock in the respective amounts set
forth opposite their names in Schedule II hereto (such shares together with the
Company Firm Shares, the "Firm Shares") and, at the election of the
Underwriters, subject to the terms and conditions stated herein, the Company
and the Selling Shareholders propose to sell to the Underwriters (for the sole
purpose of covering over- allotments in connection with the sale of the Firm
Shares) an aggregate of up to 1,164,000 additional shares of Common Stock (the
"Optional Shares") (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof are collectively
called the "Shares"). In your capacity as representatives of the several
Underwriters, you are referred to herein as the "Representatives."
1. (a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-3 (File No.
33-_________) with respect to the Shares, including a prospectus
subject to completion, has been filed by the Company with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), and one or more
amendments to such registration statement has been so filed.
After the execution of this Agreement, the Company will file with
the Commission either (A) if such registration statement, as it
may have been amended, has become effective under the Act and
information has been omitted therefrom in accordance with Rule
430A under the Act, a prospectus in the form most recently
included in an amendment to such registration statement with such
changes or insertions as are required by Rule 430A or permitted
by Rule 424(b) under the Act and as have been provided to and
approved by the Representatives, or (B) if such registration
statement, as amended, has not become effective under the Act, an
amendment to
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such registration statement, including a form of prospectus, a
copy of which amendment has been provided to and approved by the
Representatives prior to the execution of this Agreement. As
used in this Agreement, the term "Registration Statement" means
such registration statement, as amended at the time when it was
or is declared effective, including (i) all financial statements,
schedules and exhibits thereto, (ii) all documents incorporated
by reference therein filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and (iii) any information
omitted therefrom pursuant to Rule 430A under the Act and
included in the Prospectus (as hereinafter defined); the term
"Preliminary Prospectus" means each prospectus subject to
completion included in such registration statement or any
amendment or post-effective amendment thereto (including the
prospectus subject to completion, if any, included in the
Registration Statement at the time it was or is declared
effective), including all documents incorporated by reference
therein filed under the Exchange Act; and the term "Prospectus"
means the prospectus first filed with the Commission pursuant to
Rule 424(b) under the Act or, if no prospectus is required to be
so filed, such term means the prospectus included in the
Registration Statements, in either case including all documents
incorporated by reference therein filed under the Exchange Act.
Any reference in this Agreement to an "amendment or supplement"
to any Preliminary Prospectus or the Prospectus or an "amendment"
to any registration statement (including the Registration
Statement) shall be deemed to include any document incorporated
by reference therein and filed with the Commission under the
Exchange Act after the date of such Preliminary Prospectus,
Prospectus or Registration Statement, as the case may be. As
used herein, any reference to any statement or information as
being "made", "included", "contained", "disclosed", or "set
forth" in any Preliminary Prospectus, a Prospectus or any
amendment or supplement thereto, or the Registration Statement or
any amendment thereto (or other similar references) shall refer
both to information and statements actually appearing in such
document as well as information and statements incorporated by
reference therein.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued and no proceeding for that
purpose has been instituted or overtly threatened by the
Commission or the securities authority of any state or other
jurisdiction in which the Shares are to be offered or sold. If
the Registration Statement has become effective under the Act, no
stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding
for that purpose has been instituted or overtly threatened or, to
the Company's knowledge, contemplated by the Commission or the
securities authority of any state or other jurisdiction in which
the Shares are to be offered or sold.
(iii) When any Preliminary Prospectus and any amendment
or supplement thereto was filed with the Commission it (A)
contained all statements required to be stated therein in
accordance with, and complied in all material respects with the
requirements of, the Act and the rules and regulations of the
Commission thereunder, and (B) did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
When the Registration Statement or any amendment thereto was or
is declared effective, and at each Time of Delivery (as
hereinafter defined), it (A) contained or will contain all
statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the
Commission thereunder, and (B) did not or will not include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. When
the Prospectus or any amendment or supplement thereto is filed
with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or such amendment or supplement is not required to be
so filed, when the
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Registration Statement or the amendment thereto containing such
amendment or supplement to the Prospectus was or is declared
effective) and at each Time of Delivery, the Prospectus, as
amended or supplemented at any such time, (A) contained or will
contain all statements required to be stated therein in
accordance with, and complied or will comply in all material
respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder, and (B) did not or will
not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph
(iii) do not apply to statements or omissions made in any
Preliminary Prospectus and any amendment or supplement thereto,
the Registration Statement or any amendment thereto, or the
Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives
specifically for use therein.
(iv) The descriptions in the Registration Statement and
the Prospectus of statutes, legal and governmental proceedings or
contracts and other documents are accurate and fairly present in
all material respects the information required to be shown; and
there are no statutes or legal or governmental proceedings
required to be described in the Registration Statement or the
Prospectus that are not described as required and there are no
contracts or documents of a character that are required to be
described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described and filed as required.
(v) The documents or information incorporated by
reference in the Prospectus, when such documents or the documents
from which such information was incorporated, including any
amendments to such documents, were filed with the Commission,
conformed in all materials respects to the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents or information contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, and any further documents so
filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
(vi) Each of the Company and its material subsidiaries
(which consist of Xxxxxxxx Xxxxxxxx, Inc., AMRESCO Management,
Inc., AMRESCO Residential Credit Corporation, AMRESCO Capital
Corporation, AMRESCO New England, Inc. and Oak Cliff Financial,
Inc. (the "Material Subsidiaries")) has been duly incorporated,
is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, and has full corporate
power and authority to own or lease its properties and conduct
its business as described in the Prospectus. The Company has
full corporate power and authority to enter into this Agreement
and to perform its obligations hereunder. Each of the Company and
its subsidiaries is duly qualified to transact business as a
foreign corporation and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification,
except where the failure to so qualify would not have a material
adverse effect on the financial position, results of operations
or business of the Company and its subsidiaries taken as a whole.
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(vii) The Company's authorized, issued and outstanding
capital stock is as disclosed in the Prospectus. All of the
issued shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable
and conform to the description of the Common Stock contained in
the Prospectus. None of the issued shares of capital stock of
the Company or its predecessors or any of its subsidiaries has
been issued or is owned or held in violation of any preemptive
rights of shareholders, and no person or entity (including any
holder of outstanding shares of capital stock of the Company or
its subsidiaries) has any preemptive or other rights to subscribe
for any of the Shares.
(viii) All of the issued shares of capital stock of each
of the Company's subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are owned
beneficially by the Company free and clear of all liens, security
interests, pledges, charges, encumbrances, defects, shareholders'
agreements, voting trusts, equities or claims of any nature
whatsoever.
(ix) Except as disclosed in the Prospectus, there are no
outstanding (A) securities or obligations of the Company or any
of its subsidiaries convertible into or exchangeable for any
capital stock of the Company or any such subsidiary, (B)
warrants, rights or options to subscribe for or purchase from the
Company or any such subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, or (C)
obligations of the Company or any such subsidiary to issue any
shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or
options.
(x) Since the date of the most recent audited financial
statements included in the Prospectus, neither the Company nor
any of its subsidiaries has sustained any material loss or
interference with its business, which loss or interference was
material to the Company and its subsidiaries taken as a whole,
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 disclosed
in or contemplated by the Prospectus.
(xi) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, (A)
neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, or entered into
any transactions, not in the ordinary course of business, that
are material to the Company and its subsidiaries taken as a
whole, (B) the Company has not purchased any of its outstanding
capital stock or declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock, (C) there has not
been any change in the capital stock (except as a result of
shares issued upon exercise of stock options pursuant to existing
stock option plans of the Company and its subsidiaries),
long-term debt or, otherwise than in the ordinary course of
business consistent with past practice, short-term debt of the
Company or any of its subsidiaries, and (D) there has not been
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the
financial position, results of operations or business of the
Company and its subsidiaries taken as a whole, in each case other
than as disclosed in or contemplated by the Prospectus.
(xii) The Shares to be issued and sold by the Company
have been duly authorized and, when issued and delivered against
payment therefor as provided herein, will be validly issued and
fully paid and nonassessable and will conform to the description
of the Common Stock contained in the Prospectus; and the
certificates evidencing the Shares will comply with all
applicable requirements of Delaware law.
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(xiii) Except as disclosed in the Prospectus, 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 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
any such right has been effectively waived) or any securities
being registered pursuant to any other registration statement
filed by the Company under the Act.
(xiv) All offers and sales of the Company's capital stock
prior to the date hereof were at all relevant times duly
registered under the Act or exempt from the registration
requirements of the Act and were duly registered or the subject
of an available exemption from the registration requirements of
the applicable state securities or blue sky laws.
(xv) Neither the Company nor any of its subsidiaries is,
and no event has occurred that with the giving of notice or
passage of time or both would cause the Company or any of its
subsidiaries to be, in violation of its Articles or Certificate
of Incorporation or Bylaws or in default under any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which the Company or any of its subsidiaries is
a party or to which any of their respective properties or assets
are subject and which is material to the Company and its
subsidiaries taken as a whole.
(xvi) The issue and sale of the Shares to be issued and
sold by the Company and the performance of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with, or (with or without the giving of notice or the
passage of time or both) 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, lease or
other material agreement or instrument to which the Company or
any of its subsidiaries is a party or to which any of their
respective properties or assets is subject and which is material
to the Company and its subsidiaries taken as a whole, nor will
such action conflict with or violate any provision of the
Articles or Certificate of Incorporation or Bylaws of the Company
or any of its subsidiaries or any statute, rule or regulation or
any order, judgment or decree of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets.
(xvii) The Company and its subsidiaries have good and
marketable title in fee simple to all real property, if any, and
good title to all personal property owned by them, in each case
free and clear of all liens, security interests, pledges,
charges, encumbrances, mortgages and defects, except such as are
disclosed in the Prospectus or such as do not materially and
adversely affect the value of those properties which individually
or in the aggregate are material to the Company and its
subsidiaries taken as a whole and do not interfere with the use
made or proposed to be made of such property by the Company or
any one of its subsidiaries, as the case may be; and any real
property and buildings held under lease by the Company or any of
its subsidiaries are held under valid, subsisting and enforceable
leases, with such exceptions as are disclosed in the Prospectus
or are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company
or such subsidiary.
(xviii) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing
with, any court or governmental agency or body is required for
the sale of the Shares or the consummation of the transactions
contemplated by this Agreement, except the registration of the
Shares under the Act (which, if the Registration Statement is not
effective as of the time of execution hereof, shall be obtained
as provided in
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this Agreement) and such as may be required under state
securities or blue sky laws in connection with the offer, sale
and distribution of the Shares by the Underwriters.
(xix) There is no litigation, arbitration, claim,
proceeding (formal or informal) or investigation pending or
overtly threatened (or any basis therefor) in which the Company
or any of its subsidiaries is a party or of which any of their
respective properties or assets are the subject which, if
determined adversely to the Company or any such subsidiary, could
reasonably be expected to have, individually or in the aggregate,
a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries, taken
as a whole. Neither the Company nor any of its subsidiaries is
in violation of, or in default with respect to, any statute,
rule, regulation, order, judgment or decree, except as do not and
will not individually or in the aggregate have a material adverse
effect on the financial position, results of operations or
business of the Company and its subsidiaries, taken as a whole,
and neither the Company nor any of its subsidiaries is required
to take any action in order to avoid any such violation or
default.
(xx) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its consolidated
subsidiaries, are and were during the periods covered by their
reports included in the Registration Statement and the
Prospectus, independent public accountants as required by the Act
and the Exchange Act and the respective rules and regulations of
the Commission thereunder.
(xxi) The consolidated financial statements and schedules
(including the related notes) of the Company and its consolidated
subsidiaries and predecessor and acquired businesses included in
the Registration Statement, the Prospectus or any Preliminary
Prospectus were prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved and fairly present the financial position and results of
operations of the Company and its subsidiaries or its predecessor
or acquired businesses, as the case may be, at the dates and for
the periods presented. The other financial and statistical
information and data included in the Registration Statement, the
Prospectus or any Preliminary Prospectus set forth under the
captions "Summary Financial and Other Data" and "Summary" in the
Prospectus are, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements
and the books and records of the Company.
(xxii) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes the valid and
binding agreement of the Company enforceable against the Company
in accordance with its terms, subject, as to enforcement, to
applicable bankruptcy, insolvency, reorganization and moratorium
laws and other laws relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles.
(xxiii) Neither the Company nor any of its officers,
directors or affiliates has (A) taken, directly or indirectly,
any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares, or (B)
since the filing of the Registration Statement, sold, or paid
anyone any compensation for soliciting purchases of, the Shares.
(xxiv) The Company has obtained for the benefit of the
Company and the Underwriters from each of its directors,
executive officers and the Selling Shareholders a written
agreement that for a period of 180 days from the date of the
Prospectus such director, executive officer or Selling
Shareholder will not, without the written consent of the
Representatives, offer, pledge,
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sell, contract to sell, grant any option for the sale of, or
otherwise dispose of (or announce any offer, pledge, sale, grant
of an option to purchase or other disposition), directly or
indirectly, any shares of Common Stock or securities convertible
into, or exercisable or exchangeable for, shares of Common Stock.
(xxv) 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 such
subsidiary has, directly or indirectly: used any corporate funds
for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; made any
unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or
campaigns from corporate funds; violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(xxvi) To the Company's knowledge, the operations of the
Company and its subsidiaries with respect to any real property
currently leased or owned or by any means controlled by the
Company or any subsidiary (the "Real Property") are in compliance
with all federal, state, and local laws, ordinances, rules, and
regulations relating to occupational health and safety and the
environment (collectively, "Laws"), except where the failure to
so comply would not have a material adverse effect on the
Company's business or results of operations, and the Company and
its subsidiaries have all licenses, permits and authorizations
necessary to operate under all Laws and are in compliance with
all terms and conditions of such licenses, permits and
authorizations, except where such failure would not have a
material adverse effect on the Company's and its subsidiaries'
business or results of operations taken as a whole; neither the
Company nor any subsidiary has authorized, conducted or has
knowledge of the generation, transportation, storage, use,
treatment, disposal or release of any hazardous substance,
hazardous waste, hazardous material, hazardous constituent, toxic
substance, pollutant, contaminant, petroleum product, natural
gas, liquefied gas or synthetic gas defined or regulated under
any environmental law on, in or under any Real Property in
violation of any Laws except where such violation would not have
a material adverse effect on the Company's business or results of
operations; and there is no material pending or threatened claim,
litigation or any administrative agency proceeding, nor has the
Company or any subsidiary received any written or oral notice
from any governmental entity or third party that: (A) alleges a
violation of any Laws by the Company or any subsidiary; (B)
alleges the Company or any subsidiary is a liable party under the
Comprehensive Environmental Response, Compensation, and Liability
Act, 42 U.S.C. Section 9601 et seq. or any state superfund law;
(C) alleges possible contamination of the environment by the
Company or any subsidiary; or (D) alleges possible contamination
of the Real Property, except as to each of the above, for any
violations, liability or contamination that would not have a
material adverse effect on the Company's and its subsidiaries'
business or results of operations taken as a whole.
(xxvii) The Company and its subsidiaries own or have the
right to use all patents, patent applications, trademarks,
trademark applications, trade names, service marks, copyrights,
franchises, trade secrets, proprietary or other confidential
information and intangible properties and assets (collectively,
"Intangibles") necessary to their respective businesses as
presently conducted or as the Prospectus indicates the Company or
such subsidiary proposes to conduct; to the Company's knowledge,
neither the Company nor any subsidiary has infringed or is
infringing, and neither the Company nor any subsidiary has
received notice of infringement with respect to, asserted
Intangibles of others; and, to the Company's knowledge, there is
no infringement by others of Intangibles of the Company or any of
its subsidiaries which would have a material adverse effect on
the Company and its subsidiaries taken as a whole.
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(xxviii) The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged by
similarly-situated companies; and neither the Company nor any
such subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a
comparable cost, except as disclosed in the Prospectus.
(xxix) Each of the Company and its subsidiaries makes and
keeps accurate books, records and accounts, which, in reasonable
detail, accurately and fairly reflect the transactions and
dispositions of its assets and maintains a system of internal
accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with
management's general and specific authorization, (B) transactions
are recorded as necessary to permit preparation of the Company's
consolidated financial statements in accordance with generally
accepted accounting principles and to maintain accountability for
the assets of the Company, (C) access to the assets of the
Company and each of its subsidiaries is permitted only in
accordance with management's general and specific authorization,
and (D) the recorded accountability for assets of the Company and
each of its subsidiaries is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
(xxx) No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to
the Company, from making any other distributions on such
subsidiary's capital stock, from repaying to the Company any
loans or advances to such subsidiary or from transferring any of
such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as disclosed in the Prospectus.
(xxxi) The Company and its subsidiaries have filed all
foreign, federal, state and local tax returns that are required
to be filed by them and, other than taxes the Company or its
subsidiaries are contesting, have paid all taxes shown as due on
such returns as well as all other taxes, assessments and
governmental charges that are due and payable; and no deficiency
with respect to any such return has been assessed or proposed.
(xxxii) The Company is not, will not become as a result of
the transactions contemplated hereby, and does not intend to
conduct its business in a manner that would cause it to become,
an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company
Act of 1940.
(xxxiii) The Common Stock is registered pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and is qualified as a Nasdaq National Market
security of The Nasdaq Stock Market, Inc. The Company has taken
no action designed to terminate, or likely to have the effect of
terminating, the registration of the Common Stock under the
Exchange Act or qualification of the Common Stock on the Nasdaq
National Market, nor has the Company received any notification
that the Commission or the NASD is contemplating terminating such
registration or qualification.
(xxxiv) The conditions for use of a Registration Statement on
Form S-3 set forth in the General Instructions to Form S-3 have
been satisfied with respect to the Company and the transactions
contemplated by this Agreement and the Registration Statement.
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(b) REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS.
Each Selling Shareholder, severally and not jointly, represents and warrants
to, and agrees with, each of the several Underwriters and the Company that:
(i) Such Selling Shareholder has full right, power
(corporate and other) and authority to enter into this Agreement,
the Power of Attorney and the Custody Agreement (as hereinafter
defined) and to sell, assign, transfer and deliver to the
Underwriters the Shares to be sold by such Selling Shareholder
hereunder; and the execution and delivery of this Agreement, the
Power of Attorney and the Custody Agreement have been duly
authorized by all necessary action of such Selling Shareholder.
(ii) Such Selling Shareholder has duly executed and
delivered this Agreement, the Power of Attorney and the Custody
Agreement, and each constitutes the valid and binding agreement
of such Selling Shareholder enforceable against such Selling
Shareholder in accordance with its terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization
and moratorium laws and other laws relating to or affecting the
enforcement of creditors' rights generally and to general
equitable principles.
(iii) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing
with, any court or governmental agency or body is required for
the sale of the Shares to be sold by such Selling Shareholder or
the consummation of the transactions contemplated by this
Agreement, the Power of Attorney or the Custody Agreement, except
the registration of such Shares under the Act (which, if the
Registration Statement is not effective as of the time of
execution hereof, shall be obtained as provided in this
Agreement) and such as may be required under state securities or
blue sky laws in connection with the offer, sale and distribution
of such Shares by the Underwriters.
(iv) The sale of the Shares to be sold by such Selling
Shareholder and the performance of this Agreement, the Power of
Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with, or (with or without the giving of notice or the passage of
time or both) result in a breach of violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which such Selling Shareholder is a party or to
which any of such Selling Shareholder's respective properties or
assets is subject, nor will such action conflict with or violate
any provision of the Articles of Incorporation or Bylaws or other
governing instruments of such Selling Shareholder or any of such
Selling Shareholder's subsidiaries or any statute, rule or
regulation or any order, judgment or decree of any court or
governmental agency or body having jurisdiction over such Selling
Shareholder or any of such Selling Shareholder's properties or
assets.
(v) Such Selling Shareholder has, and immediately prior
to each Time of Delivery (as hereinafter defined), such Selling
Shareholder will have, good and valid title to the Shares to be
sold by such Selling Shareholder hereunder, free and clear of all
liens, security interests, pledges, charges, encumbrances,
defects, shareholders' agreements, voting trusts, equities or
claims of any nature whatsoever; and, upon delivery of such
Shares against payment therefor as provided herein, good and
valid title to such Shares, free and clear of all liens, security
interests, pledges, charges, encumbrances, defects, shareholders'
agreements, voting trusts, equities or claims of any nature
whatsoever, will pass to the several Underwriters.
(vi) Neither such Selling Shareholder nor any of such
Selling Shareholder's officers, directors or affiliates has (A)
taken, directly or indirectly, any action designed to cause or
result
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in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares, or (B) since the filing of the Registration Statement (l)
sold, bid for, purchased or paid anyone any compensation for
soliciting purchases of, the Shares or (2) paid or agreed to pay
to any person any compensation for soliciting another to purchase
any other securities of the Company.
(vii) With respect to statements made concerning such
Selling Shareholder, when any Preliminary Prospectus was filed
with the Commission it (A) contained all statements required to
be stated therein in accordance with, and complied in all
material respects with the requirements of, the Act and the rules
and regulations of the Commission thereunder, and (B) did not
include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. With respect to statements made concerning
such Selling Shareholder, when the Registration Statement or any
amendment thereto was or is declared effective and at each Time
of Delivery (as hereinafter defined), it (A) contained or will
contain all statements required to be stated therein in
accordance with, and complied or will comply in all material
respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder, and (B) did not or will
not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein
not misleading. With respect to statements made concerning such
Selling Shareholder, when the Prospectus or any amendment or
supplement thereto is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or such amendment or supplement is
not required to be so filed, when the Registration Statement or
the amendment thereto containing such amendment or supplement to
the Prospectus was or is declared effective), and at each Time of
Delivery, the Prospectus, as amended or supplemented at any such
time, (A) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply in
all material respects with the requirements of, the Act and the
rules and regulations of the Commission thereunder and (B) did
not or will not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The foregoing provisions of this
paragraph (vii) do not apply to statements or omissions made in
any Preliminary Prospectus, the Registration Statement or any
amendment thereto or the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein.
(viii) Such Selling Shareholder, without undertaking any
independent investigation, is not aware that any of the
representations or warranties set forth in Section 1(a) above is
untrue or inaccurate in any material respect. Such Selling
Shareholder has also reviewed the Preliminary Prospectus, the
Registration Statement and the Prospectus and with respect to
such documents, has no knowledge of any untrue statement of a
material fact or omission of any material fact necessary in order
to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Internal Revenue Code of 1986, as amended,
with respect to the transactions herein contemplated, each of the Selling
Shareholders agrees to deliver to you prior to or at each Time of Delivery (as
hereinafter defined) a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
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Each of the Selling Shareholders represents and warrants that
certificates in negotiable form representing all of the Shares to be sold by
such Selling Shareholder hereunder have been placed in custody under a Custody
Agreement, in the form heretofore furnished to and approved by you, duly
executed and delivered by such Selling Shareholder to SunTrust Bank, as
custodian (the "Custodian"), and that such Selling Shareholder has duly
executed and delivered a Power of Attorney, in the form heretofore furnished to
and approved by you, appointing the persons indicated in Schedule II hereto as
such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with
authority to execute and deliver this Agreement on behalf of such Selling
Shareholder, to determine the purchase price to be paid by the Underwriters to
the Selling Shareholders as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Shareholder hereunder, and
otherwise to act on behalf of such Selling Shareholder in connection with the
transactions contemplated by this Agreement and the Custody Agreement.
Each of the Selling Shareholders specifically agrees that the Shares
represented by the certificates held in custody for such Selling Shareholder
under the Custody Agreement are subject to the interests of the Underwriters
hereunder, and that the arrangements made by such Selling Shareholder for such
custody, and the appointment by such Selling Shareholder of the
Attorneys-in-Fact by the Power of Attorney, are irrevocable. Each of the
Selling Shareholders specifically agrees that the obligations of the Selling
Shareholders hereunder shall not be terminated by operation of law, whether by
the death or incapacity of any individual Selling Shareholder or, in the case
of an estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by the
occurrence of any other event.
2. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
herein set forth, (a) the Company and each Selling Shareholder agree, severally
and not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company
and each Selling Shareholder, at a purchase price of $_________ per share, the
number of Firm Shares (to be adjusted by the Representatives so as to eliminate
fractional shares) determined by multiplying the aggregate number of Shares to
be sold by the Company and the Selling Shareholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto, and the
denominator of which is the aggregate number of Firm Shares to be purchased by
the Underwriters from the Company and the Selling Shareholders hereunder, and
(b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the Company and each of
the Selling Shareholders agree to sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company and each Selling Shareholder, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by the
Representatives so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares to be sold by the Company and the Selling
Shareholders by a fraction, the numerator of which is the maximum number of
Optional Shares that such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule II hereto and the denominator
of which is the maximum number of the Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Company and each of the Selling Shareholders, as and to the extent
indicated in Schedule I hereto, severally and not jointly, hereby grant to the
Underwriters the right to purchase at their election in whole or in part from
time to time up to an aggregate of 1,164,000 Optional Shares, at the purchase
price per share set forth in clause (a) in the paragraph above, for the sole
purpose of covering over-allotments in the sale of Firm Shares. Any such
election to purchase Optional Shares shall be made in proportion to the maximum
number of Optional Shares to be sold by each of the Selling Shareholders as set
forth in Schedule I hereto. Any such election to purchase Optional Shares may
be exercised by written notice from the Representatives to the Company, given
from time to time within a period of 30 calendar days after the date
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of this Agreement and setting forth the aggregate number of Optional Shares to
be purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
hereinafter defined) or, unless the Representatives and the Company otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice. In the event you elect to purchase all or a portion of
the Optional Shares, the Company and each of the Selling Shareholders agree to
furnish or cause to be furnished to you the certificates, letters and opinions,
and to satisfy all applicable conditions, set forth in Section 7 hereof at each
Subsequent Time of Delivery (as hereinafter defined).
3. OFFERING BY THE UNDERWRITERS. Upon the authorization by the
Representatives of the release of the Shares, the several Underwriters propose
to offer the Shares for sale upon the terms and conditions disclosed in the
Prospectus.
4. DELIVERY OF SHARES; CLOSING. Certificates in definitive form for
the Shares to be purchased by each Underwriter hereunder, and in such
denominations and registered in such names as The Xxxxxxxx-Xxxxxxxx Company,
Inc. may request upon at least 48 hours' prior notice to the Company shall be
delivered by or on behalf of the Company and the Selling Shareholders to the
Representatives for the account of such Underwriter, against payment by such
Underwriter on its behalf of the purchase price therefor, by wire transfer to
accounts designated by the Company and each of the Selling Shareholders in
immediately available funds. The closing of the sale and purchase of the
Shares shall be held at the offices of Xxxxx, Xxxxxxxx & Xxxxxxx, 0000
Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, except that physical delivery of
such certificates shall be made at the office of The Depository Trust Company,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The time and date of such delivery
and payment shall be, with respect to the Firm Shares, at 10:00 a.m., Atlanta
time, on the third (or, if the Shares are priced, as contemplated by Rule
15c6-1(c), promulgated pursuant to the Exchange Act, after 4:30 p.m.
Washington, D.C. time, the fourth) full business day after this Agreement is
executed or at such other time and date as the Representatives, the Company and
the Attorneys-in-Fact, on behalf of the Selling Shareholders, may agree upon in
writing, and, with respect to the Optional Shares, at 10:00 a.m., Atlanta time,
on the date specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase all or part of such
Optional Shares, or at such other time and date as the Representatives and the
Company may agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the "First Time of Delivery," such time and date for
delivery of any Optional Shares, if not the First Time of Delivery, is herein
called a "Subsequent Time of Delivery," and each such time and date for
delivery is herein called a "Time of Delivery." The Company will make such
certificates available for checking and packaging at least 24 hours prior to
each Time of Delivery at the office of The Depository Trust Company, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other location in New York, New
York specified by the Representatives in writing at least 48 hours prior to
such Time of Delivery.
5. (a) COVENANTS OF THE COMPANY. The Company covenants and agrees
with each of the Underwriters:
(i) If the Registration Statement has been declared
effective prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and
in accordance with Rule 424(b)(1) (or, if applicable and if consented
to by the Representatives, Rule 424(b)(4)) not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the date on
which the Registration Statement is declared effective. The Company
will advise you promptly of any such filing pursuant to Rule 424(b).
(ii) The Company will not file with the Commission the
Prospectus or the amendment referred to in the second sentence of
Section l(a)(i) hereof, any amendment or supplement to the Prospectus
or any amendment to the Registration Statement unless the
Representatives have received
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a reasonable period of time to review any such proposed amendment or
supplement and consented to the filing thereof and will use its best
efforts to cause any such amendment to the Registration Statement to
be declared effective as promptly as possible. Upon the reasonable
request of the Representatives or counsel for the Underwriters, the
Company will promptly prepare and file with the Commission, in
accordance with the rules and regulations of the Commission, any
amendments to the Registration Statement or amendments or supplements
to the Prospectus that may be necessary or advisable in connection
with the distribution of the Shares by the several Underwriters and
will use its best efforts to cause any such amendment to the
Registration Statement to be declared effective as promptly as
possible. If required, the Company will file any amendment or
supplement to the Prospectus with the Commission in the manner and
within the time period required by Rule 424(b) under the Act. The
Company will advise the Representatives, promptly after receiving
notice thereof, of the time when the Registration Statement or any
amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and
will provide evidence to the Representatives of each such filing or
effectiveness.
(iii) The Company will advise the Representatives
promptly after receiving notice or obtaining knowledge of (A) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any part thereof or any
order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, (B) the
suspension of the qualification of the Shares for offer or sale in any
jurisdiction or of the initiation or threatening of any proceeding for
any such purpose, or (C) any request made by the Commission or any
securities authority of any other jurisdiction for amending the
Registration Statement, for amending or supplementing the Prospectus
or for additional information. The Company will use its best efforts
to prevent the issuance of any such stop order and, if any such stop
order is issued, to obtain the withdrawal thereof as promptly as
possible.
(iv) If the delivery of a Prospectus relating to the
Shares is required under the Act at any time prior to the expiration
of nine months after the date of the Prospectus and if at such time
any events 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 light of the circumstances under which
they were made, not misleading, or if for any reason it is necessary
during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in
the Prospectus to comply with the Act or the Exchange Act or the
respective rules and regulations thereunder, the Company will promptly
notify the Representatives and upon the request of the Representatives
(but at the Company's expense) prepare and file with the Commission an
amendment or supplement to the Prospectus or any such incorporated
document that corrects such statement or omission or effects such
compliance and will furnish without charge to each Underwriter and to
any dealer in securities as many copies of such amended or
supplemented Prospectus as you may from time to time reasonably
request. If the delivery of a prospectus relating to the Shares is
required under the Act at any time nine months or more after the date
of the Prospectus, upon request of the Representatives but at the
expense of such Underwriter, the Company will prepare and deliver to
such Underwriter as many copies as the Representatives may request of
an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act. Without limiting the application of this sentence, the
Company will use its best efforts to, not later than (A) 6:00 p.m.,
New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 12:00
Noon, New York City time, on such date or (B) 6:00 p.m., New York City
time, on the business day following the date of determination of the
public offering price, if such determination occurred after 12:00
Noon, New York City time, on such date, deliver to the
Representatives, without charge, as many copies of the Prospectus and
any amendment or supplement thereto as the Representatives may
reasonably request for purposes of confirming orders that are expected
to settle
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on the First Time of Delivery. Neither the Representatives' consent
to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 7.
(v) The Company promptly from time to time will take
such action as the Representatives may reasonably request to qualify
the Shares for offering and sale under the securities or blue sky laws
of such jurisdictions as the Representatives may request and will
continue such qualifications in effect for as long as may be necessary
to complete the distribution of the Shares, 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.
(vi) The Company will promptly provide the
Representatives, without charge, (A) two manually executed copies of
the Registration Statement as originally filed with the Commission and
of each amendment thereto, including all documents or information
incorporated by reference therein, (B) for each other Underwriter a
conformed copy of the Registration Statement and of each amendment
thereto, without exhibits but including all documents or information
incorporated by reference therein, and (C) so long as a prospectus
relating to the Shares is required to be delivered under Act, as many
copies of each Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto as the Representatives may reasonably
request.
(vii) As soon as practicable, but in any event not later
than the last day of the fifteenth month after the effective date of
the Registration Statement, the Company will make generally available
to its security holders an earnings statement of the Company and its
subsidiaries, if any, covering a period of at least 12 months
beginning after the effective date of the Registration Statement
(which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations thereunder.
(viii) During the period beginning from the date hereof
and continuing to and including the date 180 days after the date of
the Prospectus, the Company will not, without the prior written
consent of the Representatives, offer, pledge, issue, sell, contract
to sell, grant any option for the sale of, or otherwise dispose of (or
announce any offer, pledge, sale, grant of an option to purchase or
other disposition), directly or indirectly, any shares of Common Stock
or securities convertible into, exercisable or exchangeable for,
shares of Common Stock, except as provided in Section 2, except for
(A) the grant of stock options and restricted stock under existing
stock option and restricted stock plans of the Company, (B) the
issuance of Common Stock upon the exercise of stock options or
warrants outstanding on the date of this Agreement to the extent that
such stock options or warrants are disclosed in the Prospectus and (C)
except pursuant to the conversion of the Company's 8% Convertible
Subordinated Debentures due 2005 as disclosed in the Prospectus.
(ix) During a period of five years from the effective
date of the Registration Statement, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters,
without charge, (A) copies of all reports or other communications
(financial or other) furnished to shareholders, and (B) as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange.
(x) Prior to the termination of the underwriting
syndicate contemplated by this Agreement, the Company will not, and
will use its best efforts to cause its officers, directors or
affiliates not to (A) take, directly or indirectly, any action
designed to cause or to result in, or that might reasonably be
expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of any
of the Shares or, (B) sell, or pay anyone any compensation for
soliciting purchases of, the Shares.
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(xi) The Company will apply the net proceeds from the
offering in the manner set forth under "Use of Proceeds" in the
Prospectus.
(xii) The Company will use its best efforts to cause the
Shares to be listed on the Nasdaq National Market at each Time of
Delivery and will use its best efforts to cause the Shares to be so
listed for at least one year from the date hereof.
(xiii) The Company will file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in connection
with the offering, sale and distribution of the Shares.
(b) COVENANTS OF THE SELLING SHAREHOLDERS. Each Selling
Shareholder covenants and agrees with each of the Underwriters:
(i) During the period beginning from the date hereof
and continuing to and including the date 180 days after the date of
the Prospectus, such Selling Shareholder will not, without the prior
written consent of the Representatives, offer, pledge, sell, contract
to sell, grant any option for the sale of, or otherwise dispose of (or
announce any offer, pledge, sale, grant of an option to purchase or
other disposition), directly or indirectly, any shares of Common Stock
or securities convertible into, exercisable or exchangeable for,
shares of Common Stock, except as provided in Section 2.
(ii) Neither such Selling Shareholder (nor any of its
officers, directors or affiliates) will (A) take, directly or
indirectly, prior to the termination of the underwriting syndicate
contemplated by this Agreement, any action designed to cause or to
result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Shares, (B)
sell, bid for, purchase or pay anyone any compensation for soliciting
purchases of, the Shares, or (C) pay to or agree to pay any person any
compensation for soliciting another to purchase any other securities
of the Company.
6. EXPENSES. The Company and the Selling Shareholders will pay all
costs and expenses incident to the performance of their obligations under this
Agreement in such proportions as they agree among themselves, whether or not
the transactions contemplated hereby are consummated or this Agreement is
terminated pursuant to Section 10 hereof, including, without limitation, all
costs and expenses incident to (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and, if applicable, filing of the Registration Statement (including
all amendments thereto), any Preliminary Prospectus, the Prospectus and any
amendments and supplements thereto, this Agreement and any blue sky memoranda;
(ii) the delivery of copies of the foregoing documents to the Underwriters;
(iii) the filing fees of the Commission and the National Association of
Securities Dealers, Inc. relating to the Shares; (iv) the preparation, issuance
and delivery to the Underwriters of any certificates evidencing the Shares,
including transfer agent's and registrar's fees; (v) the qualification of the
Shares for offering and sale under state securities and blue sky laws,
including filing fees and reasonable fees and disbursements of counsel for the
Underwriters relating thereto; (vi) any listing of the Shares on the Nasdaq
National Market; and (vii) any expenses for travel, lodging and meals incurred
by the Company and any of its officers, directors and employees in connection
with any meetings with prospective investors in the Shares. It is understood,
however, that, except as provided in this Section, Section 8 and Section 10
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of
the Shares by them, and any advertising expenses relating to the offer and sale
of the Shares.
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7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder to purchase and pay for the Shares to be delivered
at each Time of Delivery shall be subject, in their discretion, to the accuracy
of the representations and warranties of the Company and the Selling
Shareholders contained herein as of the date hereof and as of such Time of
Delivery, to the accuracy of the statements of Company officers made pursuant
to the provisions hereof, to the performance by the Company and the Selling
Shareholders of their respective covenants and agreements hereunder, and to the
following additional conditions precedent:
(a) If the registration statement as amended to date has not
become effective prior to the execution of this Agreement, such registration
statement shall have been declared effective not later than 5:00 p.m., Atlanta
time, on the date of this Agreement or such later date and/or time as shall
have been consented to by the Representatives in writing. The Prospectus and
any amendment or supplement thereto shall have been filed with the Commission
Pursuant to Rule 424(b) within the applicable time period prescribed for such
filing and in accordance with Section 5(a) of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceedings for that purpose shall have been
instituted, overtly threatened or, to the knowledge of the Company and the
Representatives, contemplated by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction.
(b) Xxxxx, Xxxxxxxx & Xxxxxxx, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated
such Time of Delivery, with respect to the incorporation of the Company, the
validity of the Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus, and other related matters as you may
reasonably request, 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.
(c) The Representatives shall have received an opinion, dated
such Time of Delivery, of Xxxxxx and Xxxxx, L.L.P., counsel for the Company, in
form and substance satisfactory to the Representatives and their counsel, to
the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has the corporate power and authority to own or lease
its properties and conduct its business as described in the
Prospectus. The Company is duly qualified to transact business as a
foreign corporation and is in good standing under the laws of each
other jurisdiction in which the Company has advised us that the
Company owns or leases material property, or conducts material
business, so as to require such qualification, except where management
of the Company has advised us that the failure to so qualify would
not, in such management's opinion, have a material adverse effect on
the financial position of the Company and its subsidiaries, taken as a
whole.
(ii) Each of the Material Subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to own or lease its properties and
conduct its business as described in the Prospectus. Each of the
Material Subsidiaries of the Company is duly qualified to transact
business as a foreign corporation and is in good standing under the
laws of each other jurisdiction in which the Company has advised us
that the Subsidiary owns or leases material property, or conducts
material business, so as to require such qualification, except where
management of the Company has advised us that the failure to so
qualify would not, in such management's opinion, have a material
adverse effect on the financial position of the Company and its
subsidiaries, taken as a whole.
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(iii) The Company's authorized, issued and outstanding
capital stock is as disclosed in the Prospectus. All of the issued
shares of capital stock of the Company (including the Shares to be
sold by the Selling Shareholders) have been duly authorized and
validly issued, are fully paid and nonassessable, and conform to the
description of the Common Stock contained in the Prospectus under the
caption "Description of Capital Stock." To such counsel's actual
knowledge, none of the issued shares of capital stock of the Company,
its predecessors or the Material Subsidiaries has been issued in
violation of any preemptive rights of shareholders, and no person or
entity (including any holder of outstanding shares of capital stock of
the Company) has any preemptive or, to the actual knowledge of such
counsel, other rights to subscribe for any of the Shares.
(iv) All of the shares of capital stock of each of the
Material Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable, and, to such counsel's actual
knowledge, are owned beneficially by the Company without notice of any
adverse claims, except for security interests in a majority of the
present and future capital stock of all of the Material Subsidiaries
granted by the Company pursuant to the Revolving Loan Agreement.
[VERIFY EXCEPTION]
(v) To such counsel's actual knowledge and except as
disclosed in the Prospectus, there are no outstanding (A) securities
or obligations of the Company or any of its subsidiaries convertible
into or exchangeable for any capital stock of the Company or any such
subsidiary, (B) warrants, rights or options to subscribe for or
purchase from the Company or any such subsidiary any such capital
stock or any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any such subsidiary
to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights
or options.
(vi) The Shares to be issued and sold by the Company
have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor as provided herein, will be
validly issued and fully paid and nonassessable and will conform to
the description of the Common Stock contained in the Prospectus; the
form of certificate evidencing the Shares complies with all applicable
requirements of the Delaware General Corporation Law; and the Shares
to be issued and sold by the Company have been listed on the Nasdaq
National Market System.
(vii) To the actual knowledge of such counsel, except as
disclosed in the Prospectus, 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 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 Shares registered pursuant to the Registration
Statement (or any such right has been effectively waived) or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(viii) Each sale of the Company's capital stock during the
period from December 13, 1993 through each Time of Delivery was, at
the time of each such sale, registered or exempt from the
registration requirements of the Act and applicable state securities
or blue sky laws.
(ix) To such counsel's actual knowledge, (A) neither the
Company nor any of the Material Subsidiaries has violated its
respective Certificate of Incorporation or Bylaws and (B) neither the
Company nor any of the Material Subsidiaries has breached or otherwise
violated any existing obligation under any material agreement to which
the Company or any of the Material Subsidiaries is a party, in either
case where any such breach or violation would have a material adverse
effect on the financial position of the Company and its subsidiaries,
taken as a whole.
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(x) Execution and delivery by the Company of, and
performance of its obligations in, this Agreement do not (i) violate
the Company's Certificate of Incorporation or Bylaws, (ii) breach, or
result in a default under, any material indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
the Company or any of its Material Subsidiaries is a party or by which
any of them is bound or to which any of their property or assets is
subject and which has been filed by the Company as an exhibit to its
most recent Annual Report on Form 10-K or any interim Quarterly Report
on Form 10-Q, or (iii) breach or otherwise violate applicable
provisions of any statutory law or regulation or any order, judgment
or decree of any court or governmental agency or body having
jurisdiction over the Company or any of its Material Subsidiaries or
any of their respective properties and which is known to such counsel.
(xi) Except for permits and similar authorizations
required under the Act and the blue sky laws of certain jurisdictions
and for permits and authorizations which have been obtained and
registrations which have been effected, no consent, approval,
authorization, registration or order of any court or governmental
agency or body is required in connection with the sale of the Shares
to be issued and sold by the Company.
(xii) To such counsel's actual knowledge, neither the
Company nor any of the Material Subsidiaries is named as a party to
any pending or overtly threatened litigation, arbitration, claim or
proceeding that is material to the Company and its subsidiaries taken
as a whole or of which any of their respective properties or assets is
the subject, except as disclosed in the Prospectus.
(xiii) To such counsel's actual knowledge, neither the
Company nor any of the Material Subsidiaries has (A) breached or
otherwise violated any existing obligation of the Company under any
court order that names the Company as a party, or (B) violated
applicable provisions of statutory law or regulation, in either case
where any such breach or violation would have a material adverse
effect on the financial position of the Company and its subsidiaries,
taken as a whole.
(xiv) This Agreement has been duly authorized, executed
and delivered by the Company.
(xv) The Registration Statement and the Prospectus and
each amendment or supplement thereto (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), as of their respective effective or issue
dates, complied as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules and regulations thereunder. The statements contained
in the Prospectus under the captions "Business," "Recent Developments
- Acquisition of __________________," "Management's Discussion and
Analysis of Financial Condition and Results of Operations - Liquidity
and Capital Resources" and "Description of Capital Stock," [OTHERS?]
insofar as they purport to summarize the provisions of statutes, legal
and governmental proceedings or contracts and other documents, are
materially accurate and fairly present in all material respects the
information required to be shown. To such counsel's actual knowledge,
any statute, legal and governmental proceeding or contract or document
known to such counsel and of a character required to be described or
incorporated by reference in the Registration Statement or the
Prospectus has been so described or incorporated by reference therein;
and to such counsel's actual knowledge, any contract, agreement or
document known to such counsel and required to filed as an exhibit to
the Registration Statement has been filed as an exhibit to or has been
incorporated by reference into the Registration Statement.
(xvi) The documents incorporated by reference in the
Prospectus or from which information is so incorporated by reference
(other than the financial statements and related schedules
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therein, as to which such counsel need express no opinion), when they
were filed with the Commission complied on their face as to form in
all material respects with the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder.
(xvii) To such counsel's actual knowledge, the conditions
for use of Form S-3 have been satisfied with respect to the
Registration Statement.
(xviii) The Registration Statement is effective under the
Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule
424(b); to such counsel's actual knowledge, (i) no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and (ii) no proceedings for that purpose have
been instituted or threatened or are contemplated by the Commission.
(xix) The Company is not, and immediately after the
consummation of the Offering in accordance with this Agreement will
not be, required to be registered under the Investment Company Act of
1940, as amended, as an "investment company" and, to the actual
knowledge of such counsel is not a company "controlled" by an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended.
Such counsel shall also state that during the course of their
representation of the Company and based upon their participation in the
preparation of the Registration Statement, they have no reason to believe that
the Registration Statement, or any further amendment thereto made prior to such
Time of Delivery, on its effective date and as of such Time of Delivery,
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, or any
amendment or supplement thereto made prior to such Time of Delivery, as of its
issue date and as of such Time of Delivery, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (provided that such
counsel need express no belief regarding the financial statements and related
schedules and other financial data contained in the Registration Statement, any
amendment thereto, or the Prospectus, or any amendment or supplement thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and public officials. In addition, such opinion shall
state that it is governed by and shall be interpreted in accordance with the
Legal Opinion Accord of the ABA Section of Business Law (1991) (the "Accord"),
provided that the incorporation in such opinion of the Accord shall not (i)
include an incorporation of the exclusion contained in Section 19(a) of the
Accord (insofar as such exclusion relates to federal securities laws and with
respect to paragraph (viii) above, state securities laws), or (ii) be deemed to
exclude the other areas of law enumerated in Section 19 of the Accord from any
confirmations contained in such opinion relating to the absence of litigation
or the absence of violation of laws, insofar as such confirmations relate to or
confirm the Actual Knowledge (as defined in the Accord) of such counsel.
(d) The Representatives shall have received an opinion, dated
such Time of Delivery, of Xxxxxx & Bird, counsel for the Selling Shareholders
in form and substance satisfactory to the Representatives and their counsel, to
the effect that:
(i) Each of the Selling Shareholders has full right,
power (corporate and other) and authority to enter into this
Agreement, the Power of Attorney and the Custody Agreement and to
sell, assign, transfer and deliver to the Underwriters the Shares to
be sold by such Selling Shareholder
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hereunder and the execution and delivery of this Agreement, the Power
of Attorney and the Custody Agreement have been duly authorized by all
necessary action of such Selling Shareholder.
(ii) This Agreement, a Power of Attorney and a Custody
Agreement have been duly executed and delivered by such Selling
Shareholder, each of which is enforceable against such Selling
Shareholder in accordance with its terms subject, as to enforcement,
to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization and moratorium laws and other laws relating to or
affecting the enforcement of creditors' rights generally and to
general equitable principles (except that the right to indemnity and
contribution may be limited by federal or state securities laws)
(provided that such counsel need express no opinion regarding the
irrevocability of the Power of Attorney and Custody Agreement).
(iii) The sale of the Shares to be sold by such Selling
Shareholder at such Time of Delivery and the performance of this
Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with, or (with or without the giving of notice or the
passage of time or both) 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, lease or other material
agreement or instrument known to such counsel to which such Selling
Shareholder is a party or to which any of such Selling Shareholder's
properties or assets is subject, nor will such action conflict with or
violate any provision of the Articles of Incorporation or Bylaws or
other governing instruments of such Selling Shareholder or any
statute, rule or regulation or any order, judgment or decree of any
court or governmental agency or body having jurisdiction over such
Selling Shareholder or any of such Selling Shareholder's properties or
assets.
(iv) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body is required for the issue and
sale of the Shares being sold by such Selling Shareholder or the
consummation of the transactions contemplated by this Agreement, the
Power of Attorney or the Custody Agreement, except the registration of
such Shares under the Act and such as may be required under state
securities or blue sky laws in connection with the offer, sale and
distribution of such Shares by the Underwriters.
(v) Upon delivery to the Underwriters, good and valid
title to the Shares to be sold by such Selling Shareholder hereunder,
free and clear of all liens, encumbrances, equities, claims,
restrictions, security interests, voting trusts or other defects of
title whatsoever, will have been transferred to the Underwriters (whom
such counsel may assume to be bona fide purchasers) who have purchased
Shares hereunder. To the best of such counsel's knowledge, there are
no such liens, encumbrances, equities, claims, restrictions, security
interests, voting trusts or other defects of title.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company, the Selling Shareholders and public officials,
provided that such counsel shall state that they believe that both the
Representative and such counsel are justified in relying on such certificate.
(e) The Representatives shall have received from Deloitte &
Touche LLP letters dated, respectively, the date hereof (or, if the
Registration Statement has been declared effective prior to the execution and
delivery of this Agreement, dated such effective date and the date of this
Agreement) and each Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect set forth in Annex I hereto. In the event that
the letters referred to in this Section 7(f) set forth any changes, decreases
or increases in the items specified in paragraph (v) of Annex I, it shall be a
further condition to the obligations
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of the Underwriters that (i) such letters shall be accompanied by a written
explanation by the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (ii) such changes,
decreases or increases do not, in the sole judgment of the Representatives,
make it impracticable or inadvisable to proceed with the purchase, sale and
delivery of the Shares being delivered at such Time of Delivery as contemplated
by the Registration Statement, as amended as of the date of such letter.
(f) Since the date of the latest audited financial statements
included in the Prospectus, neither the Company nor any of its subsidiaries
shall have sustained (i) any loss or interference with their respective
businesses from fire, explosion, flood, hurricane 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 disclosed in or contemplated by the
Prospectus, or (ii) any change, or any development involving a prospective
change (including without limitation a change in management or control of the
Company), in or affecting the position (financial or otherwise), results of
operations, net worth or business prospects of the Company and its
subsidiaries, otherwise than as disclosed in or contemplated by the Prospectus,
the effect of which, in either such case, is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
purchase, sale and delivery of the Shares being delivered at such Time of
Delivery as contemplated by the Registration Statement, as amended as of the
date hereof.
(g) Subsequent to the date hereof there shall not have occurred
any of the following: (i) any suspension or limitation in trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or in the Common Stock by the Commission or the
Nasdaq National Market; (ii) a moratorium on commercial banking activities in
New York declared by either federal or state authorities; (iii) any downgrading
in the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); or
(iv) any outbreak or escalation of hostilities involving the United States,
declaration by the United States of a national emergency or war or any other
national or international calamity or emergency if the effect of any such event
specified in this clause (iv) in your judgment makes it impracticable or
inadvisable to proceed with the purchase, sale and delivery of the Shares being
delivered at such Time of Delivery as contemplated by the Registration
Statement, as amended as of the date hereof.
(h) The Company shall have furnished to the Representatives at
such Time of Delivery certificates of officers of the Company and the Selling
Shareholders shall have furnished certificates of the Selling Shareholders,
satisfactory to the Representatives, as to the accuracy of the representations
and warranties of the Company and such Selling Shareholders respectively herein
at and as of such Time of Delivery, as to the performance by the Company and
such Selling Shareholders of all of its and their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and as to such
other matters as the Representatives may reasonably request, and the Company
and the Selling Shareholders shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (g) of this
Section 7, and as to such other matters as the Representatives may reasonably
request.
(i) The Shares shall be listed on the Nasdaq National Market.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement made by the Company in Section 1(a)
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of this Agreement; (ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or (B) any application or other document, or any amendment
or supplement thereto, executed by the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Shares under the securities or blue sky laws thereof or
filed with the Commission or any securities association or securities exchange
(each an "Application"); or (iii) the omission or alleged omission to state in
the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or any
Application a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; 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 an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Application in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein; provided further, however, that the
Company shall not be liable to any Underwriter in respect of any Preliminary
Prospectus to the extent that (i) the Prospectus did not contain the untrue
statement or alleged untrue statement or omission or alleged omission giving
rise to such loss, claim, damage, liability or action, (ii) the Prospectus was
not sent or given to the purchaser of the Shares in question at or prior to the
time at which the written confirmation of the sale of such Shares was sent or
given to such person, and (iii) the failure to deliver such Prospectus was not
the result of the Company's noncompliance with its obligations under Sections
5(a) (ii) and 5(a) (vi) hereof. The Company will not, without the prior
written consent of each Underwriter, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding (or related cause of action or portion thereof) in respect of which
indemnification may be sought hereunder (whether or not such Underwriter is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of such Underwriter
from all liability arising out of such claim, action, suit or proceeding (or
related cause of action or portion thereof).
(b) Each of the Selling Shareholders, severally (and not jointly)
agrees to indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon: (i) any untrue statement or alleged untrue statement made by such
Selling Shareholder in Section 1(b) of this Agreement; or (ii) with respect to
statements made concerning such Selling Shareholder, any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto, or any Application or which arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading with respect to such Selling Shareholder, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that no such Selling
Shareholder shall 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 an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use therein; provided further, however, that no Selling
Shareholder shall be liable to any Underwriter in respect of any Preliminary
Prospectus to the extent that (i) the Prospectus did not contain the untrue
statement or
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alleged untrue statement or omission or alleged omission giving rise to such
loss, claim, damage, liability or action, (ii) the Prospectus was not sent or
given to the purchaser of the Shares in question at or prior to the time at
which the written confirmation of sale of such Shares was sent or given to such
person, and (iii) the failure to deliver such Prospectus was not the result of
the Company's noncompliance with its obligations under Sections 5(a) (ii) and
5(a) (vi) hereof). No Selling Shareholder will, without the prior written
consent of the Representatives, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding (or
related cause of action or portion thereof) in respect of which indemnification
may be sought hereunder (whether or not such Underwriter is a party to such
claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of such Underwriter from all
liability arising out of such claim, action, suit or proceeding (or related
cause of action or portion thereof).
(c) Each Underwriter, severally but not jointly, agrees to
indemnify and hold harmless the Company and each Selling Shareholder against
any losses, claims, damages or liabilities to which the Company or any Selling
Shareholder may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement or any amendment
thereto, the Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or any Application or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and each Selling Shareholder for any legal or other
expenses reasonably incurred by the Company or such Selling Shareholder in
connection with investigating or defending any such loss, claim, damage,
liability or action.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection or unless the
indemnifying party is materially prejudiced by such omission. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party); provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party and such indemnified party shall
have the right to select separate counsel to defend such action on behalf of
such indemnified party. After such notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
or (ii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party or (iii) the
indemnifying party shall
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have failed to assume the defense thereof. Nothing in this Section 8(d) shall
preclude an indemnified party from participating at its own expense in the
defense of any such action so assumed by the indemnifying party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Shareholders,
respectively on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling
Shareholders, respectively on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Shareholders, respectively on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by
the Company and the Selling Shareholders, respectively bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or the Selling Shareholders on the one hand or the Underwriters on
the other and the parties' relative intent, 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 subsection (e) were 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 account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders
under this Section 8 are several and not joint and shall be in addition to any
liability which the Company or such Selling Shareholders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and any
Selling Shareholder and to each person, if any, who controls the Company or any
Selling Shareholder within the meaning of the Act. Notwithstanding the
foregoing, the liability of each Selling Shareholder to the Underwriters
arising on account of the offering, whether such liability arises under this
Agreement or otherwise, shall not exceed the amount set forth in Section 8(g)
of this Agreement.
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(g) Notwithstanding anything to the contrary in this Section 8,
the liability of each Selling Shareholder for indemnification and contribution
under this Section 8 shall be limited to an amount equal to the net proceeds
received by such Selling Shareholder from the Underwriters in the offering.
9. DEFAULT OF UNDERWRITERS.
(a) If any Underwriter defaults in its obligation to purchase
Shares at a Time of Delivery, the Representatives may in their discretion
arrange for the Representatives or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six (36) hours
after such default by any Underwriter the Representatives do not arrange for
the purchase of such Shares, the Company and the Selling Shareholders shall be
entitled to a further period of thirty-six (36) hours within which to procure
another party or other parties satisfactory to the Representatives to purchase
such Shares on such terms. In the event that, within the respective prescribed
periods, the Representatives notify the Company and the Selling Shareholders
that the Representatives have so arranged for the purchase of such Shares, or
the Company and the Selling Shareholders notify the Representatives that they
have so arranged for the purchase of such Shares, the Representatives or the
Company and the Selling Shareholders shall have the right to postpone a Time of
Delivery for a period of not more than seven days in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments to the Registration Statement or the Prospectus
that in the opinion of the Representatives may thereby be made necessary. The
cost of preparing, printing and filing any such amendments shall be paid for by
the Underwriters. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Shares. The thirty-six (36) hour periods referred to in this subsection (a)
shall not include the hours between (i) 5:00 p.m., Atlanta time, on any Friday
through 9:00 a.m. Atlanta time, the following Monday or (ii) 5:00 p.m., Atlanta
time, on the day preceding a day on which the New York Stock Exchange is closed
for trading (a "holiday") through 9:00 a.m., Atlanta time, on the day following
that holiday.
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company and the Selling Shareholders as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of Shares to
be purchased at such Time of Delivery, then the Company and the Selling
Shareholders shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have
not been made, but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. TERMINATION.
(a) This Agreement may be terminated with respect to the Firm
Shares or any Optional Shares in the sole discretion of the Representatives by
notice to the Company given prior to the First Time of Delivery or any
Subsequent Time of Delivery, respectively, in the event that (i) any condition
to the obligations of the Underwriters set forth in Section 7 hereof has not
been satisfied, or (ii) the Company or the Selling Shareholders shall have
failed, refused or been unable to deliver the Shares or to perform all
obligations and satisfy all conditions on their respective parts to be
performed or satisfied hereunder at or prior to such Time of Delivery, in
either case other than by reason of a default by any of the Underwriters. If
this Agreement is terminated pursuant to this Section 10(a), the Company and
the Selling Shareholders, pro rata in accordance with the number of Shares
proposed to be sold hereunder will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including counsel fees and
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disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Shares. Neither the Company nor any Selling
Shareholder shall in any event be liable to any of the Underwriters for the
loss of anticipated profits from the transactions covered by this Agreement.
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Shareholders as provided in Section 9(a), the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of Shares to be purchased at such Time of Delivery, or if the
Company and the Selling Shareholders shall not exercise the right described in
Section 9(b) to require non-defaulting Underwriters to purchase Shares of a
defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to a Subsequent Time of Delivery, the obligations of the Underwriters to
purchase and of the Company to sell the Optional Shares) shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Shareholders, except for the expenses to be borne by the
Company, the Selling Shareholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. SURVIVAL. The respective indemnities, agreements,
representations, warranties and other statements of the Company, its officers,
the Selling Shareholders and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person referred to in Section 8(e) or the
Company, any Selling Shareholder or any officer or director or controlling
person of the Company or any Selling Shareholder referred to in Section 8(e),
and shall survive delivery of and payment for the Shares. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder shall be in writing and,
if sent to any of the Underwriters, shall be mailed, delivered or telegraphed
and confirmed in writing to you in care of The Xxxxxxxx-Xxxxxxxx Company, Inc.,
0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Corporate Finance
Department (with a copy to Xxxxx, Xxxxxxxx & Xxxxxxx, 0000 Xxxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx); if to any Selling
Shareholder shall be sufficient in all respects if delivered or sent by
registered mail to counsel for such Selling Shareholder at its address set
forth in Schedule II hereto; and if sent to the Company, shall be mailed,
delivered or telegraphed and confirmed in writing to the Company at AMRESCO,
Inc., 0000 Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxxxx X.
Xxxx, Xx., with a copy to the General Counsel of the Company.
13. REPRESENTATIVES. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by you jointly or by The
Xxxxxxxx-Xxxxxxxx Company, Inc. will be binding upon all the Underwriters.
14. BINDING EFFECT. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and the Selling
Shareholders and to the extent provided in Sections 8 and 10 hereof, the
officers and directors and controlling persons referred to therein and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
15. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Georgia without giving effect to
any provisions regarding conflict of laws.
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16. COUNTERPARTS. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and
upon the acceptance hereof by The Xxxxxxxx-Xxxxxxxx Company, Inc., on behalf of
each of the Underwriters, this letter will constitute a binding agreement among
the Underwriters and the Company. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in the Master Agreement among Underwriters, a copy of which shall be
submitted to the Company for examination, upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
AMRESCO, INC.
By:
-----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Chairman and Chief
Executive Officer
SELLING SHAREHOLDERS
By:
-----------------------------------
Xxxxxxx X. Xxxxxx, Attorney-in-Fact
acting on behalf of each of the
Selling Shareholders named in
Schedule II to this Agreement
The foregoing Agreement is hereby confirmed
and accepted as of the date first written above
at Atlanta, Georgia.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
XXXXX XXXXXXX INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
X.X. XXXXXXXX & CO.
XXXXXXXXXX SECURITIES
XXXXXX XXXXXX & COMPANY, INC.
BY: THE XXXXXXXX-XXXXXXXX COMPANY, INC.
By:
-------------------------------------
(Authorized Representative)
On behalf of each of the Underwriters
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SCHEDULE I
Number of
Optional
Total Shares to be
Number of Firm Purchased if
Shares to be Maximum Option
Underwriter Purchased Exercised
----------- --------------- --------------
The Xxxxxxxx-Xxxxxxxx Company, Inc. . . . .
Xxxxx Xxxxxxx Inc. . . . . . . . . . . . .
Xxxxxxx Xxxxx & Associates, Inc. . . . . .
X.X. Xxxxxxxx & Co. . . . . . . . . . . . .
Xxxxxxxxxx Securities . . . . . . . . . . .
Xxxxxx Xxxxxx & Company, Inc. . . . . . . .
--------- ---------
Total. . . . . . . . . . . . . . . 7,760,000 1,164,000
========= =========
30
SCHEDULE II
Number of
Total Optional
Number of Firm Shares to be
Shares to be Sold if Maximum
Selling Shareholders(l) Purchased Option Exercised
------------------------ ------------- -----------------
Xxxxxx X. Xxxxx XXX . . . . . . . . . . . . . . . . . . .
Xxxx Xxxxxxx Xxxxxxxx . . . . . . . . . . . . . . . . . .
Xxxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . .
Frankel, Hardwick, Tanebaum & Xxxx . . . . . . . . . . .
Xxxxxxx X. Close . . . . . . . . . . . . . . . . . . . .
Xxxx X. XxXxxxxxx . . . . . . . . . . . . . . . . . . . .
Xxxxxxx Xxxx . . . . . . . . . . . . . . . . . . . . . .
Xxxx X. Xxxxx, M.D. . . . . . . . . . . . . . . . . . . .
Xxxxxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . .
Xxxxxxx Family Partnership . . . . . . . . . . . . . . .
Xxxxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . .
Xxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . . . . .
PGF&M Venture 89 . . . . . . . . . . . . . . . . . . . .
SO Concepts . . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx Xxxxxx . . . . . . . . . . . . . . . . . . . . . .
X. Xxxxxxx Xxxxxxx, II . . . . . . . . . . . . . . . . .
Xxxxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . . . .
CitiBank as Trustee of the Delta Master Trust . . . . . .
National Life Insurance Company . . . . . . . . . . . . .
Xxxxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . .
Xxxxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . .
Xxxxxxx X. Xxxxxx, III . . . . . . . . . . . . . . . . .
Xxxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . . . . .
BellSouth Master Pension Trust . . . . . . . . . . . . .
Ontario Municipal Employees Retirement Board . . . . . .
Landmark Equity Partners III, L.P. . . . . . . . . . . .
Xxxx X. XxXxxx . . . . . . . . . . . . . . . . . . . . .
Xxxxx X. Xxxxxx, Xx. . . . . . . . . . . . . . . . . . .
Xxxxxxx X. Xxxxx . . . . . . . . . . . . . . . . . . . .
LeSelect WDG/DGG Interests, L.P. . . . . . . . . . . . .
--------- -----------
Total . . . . . . . . . . . . . . . . . . 5,929,538
========= ===========
(1) Each of the Selling Shareholders has executed and delivered a Power of
Attorney appointing Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxx, XX such
Selling Shareholder's Attorneys-in-Fact and is represented by Xxxxxx &
Bird, One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx, Esq.
ANNEX I
31
Pursuant to Section 7(e) of the Underwriting Agreement, Deloitte &
Touche, L.L.P. shall furnish letters to the Underwriters to the effect that:
(i) they are independent public accountants with respect to the
Company and its consolidated subsidiaries within the meaning the Act
and the respective applicable published rules and regulations
thereunder;
(ii) in their opinion, the consolidated financial statements and
schedules audited by them and included in the Prospectus and the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published rules and regulations thereunder;
(iii) the financial statements of the Company as of and for the
six month period ended June 30, 1996 were reviewed by them in
accordance with the standards established by the American Institute of
Certified Public Accountants and based upon their review they are not
aware of any material modifications that should be made to such
financial statements for them to be in conformity with generally
accepted accounting principles, and such financial statements comply as
to form in all material respects with the applicable accounting
requirements of the Act and the applicable rules and regulations
thereunder;
(iv) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated condensed financial
statements of the Company and its consolidated subsidiaries
included in the Registration Statement and the Prospectus do not
comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
respective related published rules and regulations thereunder or
are not in conformity with generally accepted principles applied
on the basis substantially consistent with that of the audited
consolidated financial statements included in the Registration
Statement and the Prospectus;
(B) as of a specified date not more than 5 days prior to
the date of such letter, there were any changes in the capital
stock (other than the issuance of capital stock upon exercise of
options which were outstanding on the date of the latest balance
sheet included in the Prospectus) or any increase in inventories
or the long-term debt or short-term debt of the Company and its
subsidiaries, or any decreases in net current assets or net
assets or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(C) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in Clause (B) there were any decreases in net sales
or operating income or the total or per share amounts of net
income or other items specified by
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the Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus
discloses have occurred or may occur which are described in such
letter; and
(v) In addition to the audit referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraph
(iv) above, they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from
the general accounting records of the Company and its subsidiaries,
included in the Registration Statement and the Prospectus, or which
appear in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
References to the Registration Statement and the Prospectus in this
Annex I shall include any amendment or supplement thereto at the date of such
letter.
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