$6,000,000
MOBILE MINI, INC.
___% SENIOR SUBORDINATED NOTES DUE 2002 AND
WARRANTS TO PURCHASE 150,000 SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
________, 1997
XXXXXXX, HISLOP, XXXXXX & GIVEN, INC.
As Representative of the several Underwriters
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
MOBILE MINI, INC., a Delaware corporation (the "Company"), addresses
you as the Representative of each of the persons, firms and corporations listed
in Schedule A hereto (herein collectively called the "Underwriters") and hereby
confirms its agreement with the several Underwriters as follows:
1. Description of Securities. The Company proposes to issue and sell
$6,000,000 in aggregate principal amount of [______%] Senior Subordinated Notes
Due 2002 (the "Notes") and warrants (the "Warrants") to purchase 150,00 shares
of the Company's common stock, $.01 par value per share (the "Common Stock"), to
the several Underwriters (collectively, the "Firm Securities"). The Company also
proposes to grant to the Underwriters an option to purchase up to $900,000 in
aggregate principal amount of additional Notes, together with additional
Warrants to purchase an aggregate of 22,500 shares of Common Stock (the "Option
Securities"), as provided in Section 3 hereof. In addition, the Company proposes
to sell to you, individually and not in your capacity as Representative, five
(5) year warrants (the "Representative's Warrants") to purchase up to 172,500
shares of Common Stock, which sale will be consummated in accordance with the
terms and conditions of the Warrant Agreement (the "Warrant Agreement")
governing the terms and rights of the Warrants, in the form of which is filed as
an exhibit to the Registration Statement described below. As used in this
Agreement, the term "Securities" shall include the Firm Securities and the
Option Securities, and the term "Warrants" shall include the Warrants included
in the Firm Securities and in the Option Securities. The term "Security" shall
include one Note in the original principal amount of $5,000 together with 125
Warrants, each to purchase one share of Common Stock at an initial per share
exercise price of $_____.___. The shares of common stock, $.01 par value per
share, of the Company outstanding from time to time are hereinafter referred to
as "Common Stock." Unless the context otherwise requires,
references herein to the "Company" include Mobile Mini, Inc. together with its
subsidiaries described in the Prospectus (hereinafter defined.).
2. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to and agrees
with each Underwriter that:
(a) A registration statement on Form S-2 (File No.
333-____) in respect of the Securities and the shares of Common Stock issuable
upon exercise of the Warrants (the "Warrant Stock"), including a prospectus
subject to completion, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
applicable rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") under the Act and has been filed with
the Commission; such amendments to such registration statement and such amended
prospectuses subject to completion as may have been required prior to the date
hereof have been similarly prepared and filed with the Commission; and the
Company will file such additional amendments to such registration statement and
such amended prospectuses subject to completion as may hereafter be required.
Copies of such registration statement and amendments and of each related
prospectus subject to completion (the "Preliminary Prospectuses") have been
delivered to you.
If the registration statement relating to the
Securities has been declared effective under the Act by the Commission, the
Company will prepare and promptly file with the Commission the information
previously omitted from the registration statement, as applicable, pursuant to
Rule 430A(a) of the Rules and Regulations pursuant to subparagraph (1) or (4) of
Rule 424(b) of the Rules and Regulations or as part of a post-effective
amendment to the registration statement (including a final form of prospectus).
If the registration statement relating to the Securities has not been declared
effective under the Act by the Commission, the Company will prepare and promptly
file amendments to the registration statement, including a final form of
prospectus, as applicable. The term "Registration Statement" as used in this
Agreement shall mean such registration statement, including financial
statements, schedules and exhibits, in the form in which it became or becomes,
as the case may be, effective (including, if the Company omitted information
from the registration statement pursuant to Rule 430A(a) of the Rules and
Regulations, the information deemed to be a part of the registration statement
at the time it became effective pursuant to Rule 430A(b) of the Rules and
Regulations) and, in the event of any amendment thereto after the effective date
of such registration statement, shall also mean (from and after the
effectiveness of such amendment) such registration statement as so amended. The
term "Prospectus" as used in this Agreement shall mean the prospectus relating
to the Securities as included in such Registration Statement at the time it
becomes effective (including, if the Company omitted information from the
Registration Statement pursuant to Rule 430A(a) of the Rules and Regulations,
the information deemed to be a part of the Registration Statement at the time it
became effective pursuant to Rule 430A(b) of the Rules and Regulations), except
that if any revised prospectus shall be provided to the Underwriters by the
Company for use in connection with the offering of the Securities that differs
from the prospectus on file with the Commission at the time the Registration
Statement became or
2
becomes, as the case may be, effective (whether or not such revised prospectus
is required to be filed with the Commission pursuant to Rule 424(b)(3) of the
Rules and Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Underwriters for
such use.
(b) The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or instituted
proceedings for that purpose, and each such Preliminary Prospectus, at the time
of filing thereof, has conformed in all material respects to the requirements of
the Act, the Rules and Regulations and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and, as of its date, has not included any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and at the time the Registration
Statement became or becomes, as the case may be, effective and at all times
subsequent thereto up to and on the Closing Date (hereinafter defined) and on
any later date on which Option Securities are to be purchased, (i) the
Registration Statement and the Prospectus, and any amendments or supplements
thereto, contained and will contain all material information required to be
included therein by the Act and the Trust Indenture Act and the Rules and
Regulations and will in all material respects conform to the requirements of the
Act and the Rules and Regulations, (ii) the Registration Statement, and any
amendments or supplements thereto, did not and will not include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(iii) the Prospectus, and any amendments or supplements thereto, did not and
will not include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that none of the representations and warranties contained in this subparagraph
(b) shall apply to information contained in or omitted from the Registration
Statement or Prospectus, or any amendment or supplement thereto, in reliance
upon, and in conformity with, written information relating to any Underwriter
furnished to the Company by such Underwriter specifically for use in the
preparation thereof.
(c) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full power and authority (corporate and
other) to own, lease and operate its properties and conduct its business as
described in the Prospectus; the Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified or be in good
standing would not have a material adverse effect on the condition (financial or
otherwise), earnings, operations, business or prospects of the Company taken as
a whole; no proceeding has been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification; the Company is in possession of and operating in
compliance with all authorizations, licenses, certificates, consents, orders and
permits from state, federal and other regulatory authorities that are material
to the conduct of its business, all of which are valid and in full force and
effect; the Company is not in material violation of its charter or bylaws or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any material bond, debenture, note or other
evidence of indebtedness, or in any material lease,
3
contract, indenture, mortgage, deed of trust, loan agreement, joint venture or
other agreement or instrument to which the Company is a party or by which it or
its properties or assets may be bound; and the Company is not in material
violation of any law, order, rule, regulation, writ, injunction, judgment or
decree of any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over the Company or over its properties or assets.
The Prospectus accurately describes any corporation, association or other entity
owned or controlled, directly or indirectly, by the Company.
(d) All outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable, and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances or claims. All outstanding shares of capital
stock of the Company have been issued in compliance with all federal and state
securities laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities, and the
authorized and outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" and conforms in all material
respects to the statements relating thereto contained in the Registration
Statement and the Prospectus (and such statements correctly state the substance
of the instruments defining the capitalization of the Company).
(e) The Company has full legal right, power and
authority to enter into this Agreement and to perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement on the part of the
Company, enforceable in accordance with its terms, except as rights to
indemnification under this Agreement may be limited by applicable law and except
as the enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles. The issue and
sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture governing the terms of the Notes
(the "Indenture"), the Warrant Agreement governing the terms of the Warrants
(the "Warrant Agreement"), and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, warrant agreement, mortgage, deed of trust,
sale/leaseback agreement, loan agreement or other similar financing agreement or
other material agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture and the Warrant Agreement, except
such as have been, or will have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations or
qualifications as may
4
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(f) The Securities have been duly authorized, and,
when issued and delivered pursuant to this Agreement, such Securities will have
been duly executed, authenticated and, in the case of Warrants, countersigned by
the Warrant Agent as provided in the Warrant Agreement, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture and the Warrant Agreement, as the case
may be, each of which will be substantially in the form filed as an exhibit to
the Registration Statement; the Warrant Agreement has been duly authorized and
the Indenture has been duly authorized and duly qualified under the Trust
Indenture Act and the Indenture and the Warrant Agreement, as the case may be,
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and each of the
Indenture and the Warrant Agreement conforms, and the Securities will conform,
to the descriptions thereof contained in the Prospectus as amended or
supplemented with resect to such Securities to the extent described therein;
(g) There is not any pending or, to the best of the
Company's knowledge, threatened action, suit, claim or proceeding against the
Company, or any of its officers or any of its properties, assets or rights
before any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over the Company or over its officers or properties
or otherwise that (i) is reasonably likely to result in any material adverse
change in the condition (financial or otherwise), earnings, operations, business
or business prospects of the Company or might materially and adversely affect
its properties, assets or rights, (ii) might prevent consummation of the
transactions contemplated hereby or (iii) is required to be disclosed in the
Registration Statement or Prospectus and is not so disclosed; and there are no
agreements, contracts, leases or documents of the Company of a character
required to be described or referred to in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration Statement by the Act
or the Rules and Regulations or by the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the rules and regulations of the Commission
thereunder that have not been accurately described in all material respects in
the Registration Statement or Prospectus or filed as exhibits to the
Registration Statement.
(h) Xxxxxx Xxxxxxxx LLP, which has examined the
financial statements of the Company, together with the related schedules and
notes, as of December 31, 1995 and 1996 and for each of the years in the three
(3) year period ended December 31, 1996 filed with the Commission as a part of
the Registration Statement, which are included in the Prospectus, are
independent accountants within the meaning of the Act and the Rules and
Regulations; the audited financial statements of the Company, together with the
related schedules and notes, and the unaudited financial information, forming
part of the Registration Statement and Prospectus, fairly present the financial
position and the results of operations of the Company at the respective dates
and for the respective periods to which they apply; and all audited financial
statements of the Company, together with the related schedules and notes, and
the unaudited financial information, filed with the Commission as part of the
Registration Statement, have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the
5
periods involved except as may be otherwise stated therein. The selected and
summary financial and statistical data included in the Registration Statement
present fairly the information shown therein and have been compiled on a basis
consistent with the audited financial statements presented therein. No other
financial statements or schedules are required to be included in the
Registration Statement.
(i) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus, there has not
been (i) any material adverse change in the condition (financial or otherwise),
earnings, operations or business of the Company, (ii) any transaction that is
material to the Company, (iii) any material obligation, direct or contingent,
incurred by the Company, except obligations incurred in the ordinary course of
business, (iv) any material change in the capital stock or outstanding
indebtedness of the Company, (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company, or (vi) any loss or
damage (whether or not insured) to the property of the Company which has a
material adverse effect on the condition (financial or otherwise), earnings,
operations or business of the Company.
(j) Except as set forth in the Registration
Statement and Prospectus, (i) the Company has good and marketable title to all
properties and assets described in the Registration Statement and Prospectus as
owned by it, free and clear of any pledge, lien, security interest, encumbrance,
claim or equitable interest, other than such as would not have a material
adverse effect on the condition (financial or otherwise), earnings, operations
or business of the Company, (ii) the agreements to which the Company is a party
described in the Registration Statement are valid agreements, enforceable by the
Company, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general equitable
principles and, to the best of the Company's knowledge, except for loan
agreements with customers, the other contracting party or parties thereto are
not in material breach or material default under any of such agreements, and
(iii) the Company has valid and enforceable leases for all properties described
in the Registration Statement and Prospectus as leased by it, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles. Except as set
forth in the Registration Statement and Prospectus, the Company owns or leases
all such properties as are necessary to its operations as now conducted and as
described in the Registration Statement and the Prospectus.
(k) The Company has timely filed all federal, state,
local and foreign tax returns required to be filed by it and has paid all taxes
shown thereon as due, and there is no tax deficiency that has been or, to the
best of the Company's knowledge, is reasonably likely to be asserted against the
Company, which might have a material adverse effect on the condition (financial
or otherwise), earnings, operations or business of the Company, and all tax
liabilities are adequately provided for on the books of the Company.
(l) The Company maintains insurance with insurers of
recognized financial responsibility of the types and in the amounts generally
deemed adequate for its business including, but not limited to, insurance
covering real and personal property owned or
6
leased by the Company against theft, damage, destruction, acts of vandalism and
all other risks customarily insured against, all of which insurance is in full
force and effect; the Company has not been refused any insurance coverage sought
or applied for; and the Company does have 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 cost that would not materially and adversely
affect the condition (financial or otherwise), earnings, operations or business
of the Company.
(m) To the best of the Company's knowledge, no labor
disturbance by the employees of the Company exists or is imminent. No collective
bargaining agreement exists with any of the Company's employees and, to the best
of the Company's knowledge, no such agreement is imminent.
(n) The Company owns or possesses adequate rights to
use all trade secrets, know-how, trademarks, service marks and trade names that
are necessary to conduct its businesses as described in the Registration
Statement and Prospectus; the Company has not received any notice of, and has no
knowledge of, any infringement of or conflict with asserted rights of the
Company by others with respect to any trade secrets, know-how, trademarks,
service marks or trade names; and the Company has not received any notice of,
and has no knowledge of, any infringement of or conflict with asserted rights of
others with respect to any trade secrets, know-how, trademarks, service marks or
trade names which, singly or in the aggregate, in the event of an unfavorable
decision, ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), earnings, operations, business or business
prospects of the Company.
(o) The Common Stock is registered pursuant to
Section 12(g) of the Exchange Act and is approved for quotation on the Nasdaq
National Market, and the Company has taken no action designed to, or likely to
have the effect of, terminating the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from the Nasdaq National Market, nor
has the Company received any notification that the Commission or the National
Association of Securities Dealers, Inc. ("NASD") is contemplating terminating
such registration or listing. The Notes and the Warrants have been approved for
listing on the Nasdaq SmallCap Market, subject to official notice of issuance.
(p) The Company has been advised concerning the
Investment Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations thereunder, and has in the past conducted, and intends in the future
to conduct, its affairs in such a manner as to ensure that it will not become an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the 1940 Act and such rules and regulations.
(q) The Company has not distributed and will not
distribute prior to the later of (i) the Closing Date, or any date on which
Option Securities are to be purchased, as the case may be, and (ii) completion
of the distribution of the Securities, any offering material in connection with
the offering and sale of the Securities other than any Preliminary Prospectuses,
the Prospectus, the Registration Statement and other materials, if any,
permitted by the Act.
7
(r) The Company has not at any time during the last
five (5) years (i) made any unlawful contribution to any candidate for foreign
office or failed to disclose fully any contribution in violation of law, or (ii)
made any payment to any federal or state governmental officer or official, or
other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof.
(s) The Company has not taken and will not take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization in violation of law or manipulation
of the price of the Common Stock or other securities of the Company to
facilitate the sale or resale of the Securities.
(t) Except as set forth in the Registration
Statement and Prospectus, (i) the Company is in material compliance with all
rules, laws and regulations relating to the use, treatment, storage and disposal
of toxic substances and protection of health or the environment ("Environmental
Laws") that are applicable to its business, (ii) the Company has received no
notice from any governmental authority or third party of an asserted claim under
Environmental Laws, which claim is required to be disclosed in the Registration
Statement and the Prospectus, (iii) to its best knowledge, the Company is not
likely to be required to make future material capital expenditures to comply
with Environmental Laws and (iv) no property which is owned, leased or occupied
by the Company has been designated as a Superfund site pursuant to the
Comprehensive Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. ss. 9601, et seq.), or otherwise designated as a contaminated site under
applicable state or local law.
(u) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, including
without limitation cash receipts, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(v) There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company to or for the benefit of any of the
officers, directors or director-nominees of the Company or any of the members of
the families of any of them, except as disclosed in the Registration Statement
and the Prospectus.
(w) The Warrant Stock has been duly authorized and
reserved for issuance upon the exercise of the Warrants and when issued upon
payment of the exercise price therefor will be validly issued, fully paid and
nonassessable shares of Common Stock of the Company.
3. Purchase, Sale and Delivery of Securities.
8
(a) On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $4,750 per Security, the respective number of Firm Securities as
hereinafter set forth. The obligation of each Underwriter to the Company shall
be to purchase from the Company that number of Firm Securities which is set
forth opposite the name of such Underwriter in Schedule A hereto (subject to
adjustment as provided in Section 10).
Delivery of definitive certificates representing the
Notes and the Warrants comprising the Firm Securities to be purchased by the
Underwriters pursuant to this Section 3 shall be made against payment of the
purchase price therefor by the several Underwriters by certified or official
bank check or checks drawn in next-day funds, payable to the order of the
Company (and the Company agrees not to deposit any such check in the bank on
which it is drawn until the day following the date of its delivery to the
Company) at the offices of the Representative or such other place as may be
agreed upon among the Representative and the Company, at 7:00 A.M., Phoenix
time, on the third (3rd) full business day following the first day that
Securities are traded (or at such time and date to which payment and delivery
shall have been postponed pursuant to Section 10 hereof), such time and date of
payment and delivery being herein called the "First Closing Date." The
certificates representing the Notes and the Warrants comprising the Firm
Securities to be so delivered will be made available to you for review at such
office or such other location as you may reasonably request at least one (1)
full business day prior to the First Closing Date and will be in such names and
denominations as you may request, such request to be made at least two (2) full
business days prior to the First Closing Date.
It is understood that you, individually, and not as
the Representative of the several Underwriters, may (but shall not be obligated
to) make payment of the purchase price on behalf of any Underwriter or
Underwriters whose check or checks shall not have been received by you prior to
the Closing Date for the Firm Securities to be purchased by such Underwriter or
Underwriters. Any such payment by you shall not relieve any such Underwriter or
Underwriters of any of its or their obligations hereunder.
After the Registration Statement becomes effective,
the several Underwriters intend to make a public offering (as such term is
described in Section 11 hereof) of the Firm Securities at a public offering
price of $5,000.00 per Note. After the initial public offering, the several
Underwriters may, in their discretion, vary the public offering
(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants to the several Underwriters, for the purpose of
covering over-allotments in connection with the distribution and sale of the
Firm Securities only, a nontransferable option to purchase up to $900,000 in
principal amount of additional Notes, together with additional Warrants covering
an aggregate of 22,500 shares of Common Stock at the purchase price per Security
for the Firm Securities set forth in Section 3(a) hereof. Such option may be
exercised by the Representative on behalf of the several Underwriters on one (1)
or more occasions in whole or in part during
9
the period of forty-five (45) days after the date on which the Firm Securities
are initially offered to the public, by giving written notice to the Company.
The number of Option Securities to be purchased by each Underwriter upon the
exercise of such option shall be the same proportion of the total number of
Option Securities to be purchased by the several Underwriters pursuant to the
exercise of such option as the number of Firm Securities purchased by such
Underwriter (set forth in Schedule A hereto) bears to the total number of Firm
Securities purchased by the several Underwriters (set forth in Schedule A
hereto), adjusted by the Representative in such reasonable manner as the
Representative shall determine to avoid fractional shares.
Delivery of definitive certificates for the Notes
and the Warrants comprising the Option Securities to be purchased by the several
Underwriters pursuant to the exercise of the option granted by this Section 3(b)
shall be made against payment of the purchase price therefor by the several
Underwriters by certified or official bank check or checks drawn in next-day
funds, payable to the order of the Company (and the Company agrees not to
deposit any such check in the bank on which it is drawn until the day following
the date of its delivery to the Company). Such delivery and payment shall take
place at the offices of the Representative, or at such other place as may be
agreed upon among the Representative and the Company (i) on the Closing Date, if
written notice of the exercise of such option is received by the Company at
least three (3) full business days prior to the Closing Date, or (ii) on a date
which shall not be later than the fifth (5th) full business day following the
date the Company receives written notice of the exercise of such option, if such
notice is received by the Company less than three (3) full business days prior
to the Closing Date.
The certificates for the Option Securities to be so
delivered will be made available to you for review at such office or such other
location as you may reasonably request at least two (2) full business days prior
to the date of payment and delivery and will be in such names and denominations
as you may request, such request to be made at least three (3) full business
days prior to such date of payment and delivery.
It is understood that you, individually, and not as
the Representative of the several Underwriters, may (but shall not be obligated
to) make payment of the purchase price on behalf of any Underwriter or
Underwriters whose check or checks shall not have been received by you prior to
the date of payment and delivery for the Option Securities to be purchased by
such Underwriter or Underwriters. Any such payment by you shall not relieve any
such Underwriter or Underwriters of any of its or their obligations hereunder.
(c) Upon exercise of any option provided for in Section 3(b)
hereof, the obligations of the several Underwriters to purchase such Option
Securities will be subject (as of the date hereof and as of the date of payment
and delivery for such Option Securities) to the accuracy of and compliance with
the representations, warranties and agreements of the Company herein, to the
accuracy of the statements of the Company and officers of the Company made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder, and to the condition that all proceedings taken at or
prior to the payment date in connection with the sale and transfer of such
Option Securities shall be reasonably satisfactory in form and substance to you
and to Underwriters' counsel, and you shall have been furnished with all such
documents, certificates and opinions as you may reasonably request in order to
10
evidence the accuracy and completeness of any of the representations, warranties
or statements, the performance of any of the covenants or agreements of the
Company or the compliance with any of the conditions herein contained in each
case in all material respects.
(d) The information set forth in the last paragraph on the
front cover page (insofar as such information relates to the Underwriters), in
the ____ paragraph on page __, concerning stabilization and over-allotment by
the Underwriters, and in third and eighth paragraphs under the caption
"Underwriting" in any Preliminary Prospectus and in the final form of Prospectus
filed pursuant to Rule 424(b) constitutes the only information furnished by the
Underwriters to the Company for inclusion in any Preliminary Prospectus, the
Prospectus or the Registration Statement, and you, on behalf of the respective
Underwriters, represent and warrant to the Company that the statements made
therein do not include any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
4. Further Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) The Company will use reasonable efforts to cause
the Registration Statement and any amendments thereof, if not effective at the
time and date that this Agreement is executed and delivered by the parties
hereto, to become effective as promptly as possible; it will notify you,
promptly after it shall receive notice thereof, of the times when the
Registration Statement or any subsequent amendments to the Registration
Statement have become effective or any supplement to the Prospectus has been
filed; if the Company omitted information from the Registration Statement at the
time it was originally declared effective in reliance upon Rule 430A(a) of the
Rules and Regulations, the Company will provide evidence satisfactory to you
that the Prospectus contains such information and has been filed, within the
time period prescribed, with the Commission pursuant to subparagraph (1) or (4)
of Rule 424(b) of the Rules and Regulations or as part of post-effective
amendments to such Registration Statement as originally declared effective which
are declared effective by the Commission; if for any reason the filing of the
final form of Prospectus is required under Rule 424(b)(3) of the Rules and
Regulations, it will provide evidence satisfactory to you that the Prospectus
contains such information and has been filed with the Commission within the time
period prescribed; it will notify you promptly of any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; promptly upon your request, it will
prepare and file with the Commission any amendments or supplements to the
Registration Statement or Prospectus which, in the opinion of counsel for the
several Underwriters ("Underwriters' Counsel"), may be necessary or advisable in
connection with the distribution of the Securities by the Underwriters; it will
promptly prepare and file with the Commission, and promptly notify you of the
filing of, any amendments or supplements to the Registration Statement or
Prospectus which may be necessary to correct any statements or omissions, if, at
any time when a prospectus relating to the Securities is required to be
delivered under the Act, any event shall have occurred as a result of which the
Prospectus or any other prospectus relating to the Securities as then in effect
would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
11
of the circumstances under which they were made, not misleading; in case any
Underwriter is required to deliver a prospectus nine (9) months or more after
the applicable effective date of the Registration Statement in connection with
the sale of the Securities, it will prepare promptly upon request, but at the
expense of such Underwriter, such amendment or amendments to the Registration
Statement and such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act; and it will
file no amendment or supplement to the Registration Statement or Prospectus
which shall not previously have been submitted to you a reasonable time prior to
the proposed filing thereof or to which you shall reasonably object in writing,
subject, however, to compliance with the Act and the Rules and Regulations and
the rules and regulations of the Commission thereunder and the provisions of
this Agreement.
(b) The Company will advise you, promptly after it
shall receive notice or obtain knowledge, of the issuance of any stop order by
the Commission suspending the effectiveness of the Registration Statement or of
the initiation or threat of any proceeding for that purpose; and it will
promptly use its best efforts to prevent the issuance of any stop order or to
obtain its withdrawal at the earliest possible moment if such stop order should
be issued.
(c) The Company will use reasonable efforts to
qualify the Securities, including in the case of the Warrants, the Warrant
Stock, for offering and sale under the securities laws of such jurisdictions as
you may designate and to continue such qualifications in effect for so long as
may be required for purposes of the distribution of such Securities, except that
the Company shall not be required in connection therewith or as a condition
thereof to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction in which it is not otherwise required to
be so qualified or to so execute a general consent to service of process. In
each jurisdiction in which the Securities shall have been qualified as above
provided, the Company will make and file such statements and reports in each
year as are or may be reasonably required by the laws of such jurisdiction.
(d) The Company will furnish to you, as soon as
available, copies of the Registration Statement (including all exhibits), each
Preliminary Prospectus, the Prospectus and any amendments or supplements to such
documents, including any prospectus prepared to permit compliance with Section
10(a)(3) of the Act (including all exhibits) all in such quantities as you may
from time to time reasonably request.
(e) The Company will make generally available to its
security holders as soon as practicable, but in any event not later than the
forty-fifth (45th) day following the end of the fiscal quarter first occurring
after the first anniversary of the effective dates of the Registration Statement
(as defined in Rule 158(c)), an earnings statement (which will be in reasonable
detail but need not be audited) complying with the provisions of Section 11(a)
of the Act and the Rules and Regulations and covering a twelve (12) month period
beginning after the effective date of the Registration Statement.
(f) During the five (5) year period beginning after
the date hereof and for so long as the Company is subject to Section 13 or 15 of
the Exchange Act, the Company will furnish to its stockholders as soon as
practicable after the end of each respective period,
12
annual reports (including financial statements audited by independent certified
public accountants) and unaudited quarterly reports of operations for each of
the first three quarters of the fiscal year, and will furnish to you and the
other several Underwriters hereunder, upon request (i) concurrently with
furnishing such reports to its stockholders, statements of operations of the
Company for each of the first three (3) quarters in the form furnished to the
Company's stockholders, (ii) concurrently with furnishing to its stockholders, a
balance sheet of the Company as of the end of such fiscal year, together with
statements of operations, of stockholders' equity, and of cash flows of the
Company for such fiscal year, accompanied by a copy of the certificate or report
thereon of independent certified public accountants, (iii) as soon as they are
available, copies of all reports (financial or other) mailed to stockholders,
(iv) as soon as they are available, copies of all reports and financial
statements furnished to or filed with the Commission, any securities exchange or
the NASD, (v) every material press release and every material news item or
article in respect of the Company or its affairs which was generally released to
stockholders or prepared by the Company, and (vi) any additional information of
a public nature concerning the Company or its business which you may reasonably
request. During such five (5) year period, if the Company shall have active
subsidiaries, the foregoing financial statements shall be on a consolidated
basis to the extent that the accounts of the Company and its subsidiaries are
consolidated, and shall be accompanied by similar financial statements for any
significant subsidiary that is not so consolidated.
(g) To furnish to the holders of the Securities all
other documents specified in the Indenture or the Warrant Agreement, as the case
may be, all in the manner so specified.
(h) The Company will apply the net proceeds from the
sale of the Securities being sold by it in the manner set forth under the
caption "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to list
the Securities on the Nasdaq SmallCap Market and to list the Warrant Stock on
the Nasdaq National Market System.
(j) The Company will maintain a registrar and
warrant agent for the Warrants and a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, registrar (which may be the same
entity as the transfer agent) for its Common Stock.
(k) The Company will file Form SR in conformity with
the requirements of the Act and the Rules and Regulations.
(l) If the transactions contemplated hereby are not
consummated by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed hereunder or to
fulfill any condition of the Underwriters' obligations hereunder, or if the
Company shall terminate this Agreement pursuant to Section 11(a) hereof, or if
the Underwriters shall terminate this Agreement pursuant to Section 11(b)(i),
the Company will pay the several Underwriters for all out-of-pocket expenses
(including fees and disbursements of Underwriters' Counsel) incurred by the
Underwriters in investigating or
13
preparing to market or marketing the Securities and to the extent any advances
to the Underwriters exceed such expenses, the Underwriter shall return such
excess to the Company.
(m) If at any time during the ninety (90) day period
after the Registration Statement becomes effective, any rumor, publication or
event relating to or affecting the Company shall occur as a result of which in
your reasonable opinion the market price of the Common Stock or the Securities
has been or is likely to be materially affected (regardless of whether such
rumor, publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, if requested by you, forthwith prepare, and, if
permitted by law, disseminate a press release or other public statement,
reasonably satisfactory to you, responding to or commenting on such rumor,
publication or event.
(n) During the period of 180 days from the date that
the Registration Statement is declared effective by the Commission, the Company
will not, without the prior written consent of the Representative, offer to
sell, contract to sell, or otherwise sell, dispose of, loan, pledge or grant any
rights with respect to, directly or indirectly, any shares of Common Stock, any
options or warrants to purchase shares of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock other than (i) the
sale of the Firm Securities and the Option Securities hereunder, (ii) the
Company's issuance of options or Common Stock under the Company's presently
authorized stock option plans or restricted stock plans (collectively, the
"Option Plans") and the issuance of Common Stock upon the exercise of options or
warrants outstanding on the date hereof and described in the Prospectus and
(iii) securities issued in connection with acquisitions.
(o) The Company shall reserve and keep available at
all times, free of preemptive rights, shares of Common Stock for the purpose of
enabling the Company to satisfy obligations to issue shares of its Common Stock
upon exercise of the Warrants.
5. Expenses.
---------
(a) The Company covenants and agrees with each
Underwriter that:
(i) The Company will pay or cause to be paid
the following: (A) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Securities and the
Warrant Stock under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (B)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, the Indenture, the Warrant Agreement, any Blue Sky Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (C) all expenses in connection with the qualification of the
Securities and the Warrant Stock for offering and sale under state securities
laws, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
survey(s); (D) any fees charged by securities rating services for rating the
Securities; (E) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale
14
of the Securities; (F) the cost of preparing the Securities; (G) the fees and
expenses of the Trustee and Warrant Agent and any agent of any Trustee or
Warrant Agent and the fees and disbursements of counsel for the Trustee and
Warrant Agent in connection with the Indenture and Warrant Agreement and the
Securities, and the cost and charges of any transfer agent or registrar or
dividend disbursing agent; and (H) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in Section ___ hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected with any
offers they may make.
(ii) In addition to its other obligations
under Section 5(a)(i) hereof, the Company will reimburse the Representative for
all reasonable expenses incurred in connection with the Offering, including,
without limitation, fees and disbursements of their counsel. This reimbursement
shall be paid to you on the Closing Date and may be deducted from the net
proceeds from the sale of the Securities that is otherwise payable to the
Company.
(iii) In addition to its other obligations
under Section 7(a) hereof, the Company agrees that, as an interim measure during
the pendency of any claim, action, investigation, inquiry or other proceeding
described in Section 7(a) hereof, it will reimburse the Underwriters on a
monthly basis for all reasonable legal or other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the Company's obligation to reimburse the
Underwriters for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have been
improper, the Underwriters shall promptly return such payment to the Company
together with interest, compounded daily, determined on the basis of the prime
rate (or other commercial lending rate for borrowers of the highest credit
standing) listed from time to time in The Wall Street Journal which represents
the base rate on corporate loans posted by a substantial majority of the
nation's five (5) largest banks (the "Prime Rate"). Any such interim
reimbursement payments which are not made to the Underwriters within thirty (30)
days of a request for reimbursement shall bear interest at the Prime Rate from
the date of such request.
(b) In addition to their other obligations under
Section 7(b) hereof, the Underwriters severally and not jointly agree that, as
an interim measure during the pendency of any claim, action, investigation,
inquiry or other proceeding described in Section 7(b) hereof, they will
reimburse the Company on a monthly basis for all reasonable legal or other
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
Underwriters' obligation to reimburse the Company for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Company shall
promptly return such payment to the Underwriters together with interest,
compounded daily, determined on the basis of the Prime Rate. Any such interim
reimbursement payments which are not made to the Company within
15
thirty (30) days of a request for reimbursement shall bear interest at the Prime
Rate from the date of such request.
(c) It is agreed that any controversy arising out of
the operation of the interim reimbursement arrangements set forth in Sections
5(a)(iii) and 5(b) hereof, including the amounts of any requested reimbursement
payments, the method of determining such amounts and the basis on which such
amounts shall be apportioned among the reimbursing parties, shall be settled by
arbitration conducted pursuant to the Code of Arbitration Procedure of the NASD
in Maricopa County, Arizona (or as close geographically to Maricopa County,
Arizona as is reasonably practical). Any such arbitration must be commenced by
service of a written demand for arbitration or a written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration tribunal
in such demand or notice, then the party responding to said demand or notice is
authorized to do so. Any such arbitration will be limited to the operation of
the interim reimbursement provisions contained in Sections 5(a)(iii) and 5(b)
hereof and will not resolve the ultimate propriety or enforceability of the
obligation to indemnify for expenses which is created by the provisions of
Sections 7(a) and 7(b) hereof or the obligation to contribute to expenses which
is created by the provisions of Section 7(d) hereof.
6. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Securities as provided herein
shall be subject to the accuracy, as of the date hereof and the Closing Date and
any later date on which Option Securities are to be purchased, as the case may
be, of the representations and warranties of the Company to the performance by
the Company of its obligations hereunder and to the following additional
conditions:
(a) The Registration Statement shall have become
effective not later than 2:00 P.M., Arizona time, on the date following the date
of this Agreement, or such later date as shall be consented to in writing by
you; and no stop order suspending the effectiveness thereof shall have been
issued and no proceedings for that purpose shall have been initiated or, to the
knowledge of the Company or any Underwriter, threatened by the Commission, and
any request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the satisfaction of Underwriters' Counsel. The Prospectus as amended or
supplemented in relation to the applicable Securities shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the Rules and Regulations.
(b) All corporate proceedings and other legal
matters in connection with this Agreement, the form of Registration Statement
and the Prospectus, and the registration, authorization, issuance, sale and
delivery of the Securities, shall have been reasonably satisfactory to
Underwriters' Counsel, and such counsel shall have been furnished with such
documents and information as they may reasonably have requested to enable them
to pass upon the matters referred to in this Section 6.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been any change in
the condition (financial or
16
otherwise), earnings, operations, business or business prospects of the Company
from that set forth in the Registration Statement or Prospectus, which, in your
sole judgment, is material and adverse and that makes it, in your sole judgment,
impracticable or inadvisable to proceed with the public offering of the
Securities as contemplated by the Prospectus.
(d) You shall have received on the Closing Date and
on any later date on which Option Securities are purchased, as the case may be,
the following opinion of Xxxxx Xxxx LLP, counsel for the Company, dated the
Closing Date or such later date on which Option Securities are purchased,
addressed to the Underwriters (and stating that it may be relied upon by Xxxxxx,
Xxxxxxx & Xxxxxxx L.L.P, Underwriters' Counsel, in rendering its opinion
pursuant to Section 6(e) of this Agreement) and with reproduced copies or signed
counterparts thereof for each of the Underwriters, to the effect that:
(i) The Company is a corporation in good
standing under the laws of the jurisdiction of its
incorporation;
(ii) The Company has the corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus;
(iii) The Company is duly qualified to do
business as a foreign corporation and is in good standing in
each jurisdiction, if any, in which the ownership or leasing
of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified or
be in good standing would not have a material adverse effect
on the condition (financial or otherwise), earnings,
operations or business of the Company taken as a whole. To
such counsel's knowledge, the Prospectus accurately describes
any corporation, association or other entity owned or
controlled, directly or indirectly, by the Company;
(iv) The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Prospectus, as amended or supplemented, under the caption
"Capitalization" as of the dates stated therein. All of the
issued and outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully
paid and nonassessable, and, to such counsel's knowledge, have
not been issued in violation of or subject to any preemptive
right, co-sale right, registration right, right of first
refusal or other similar right; the shares of Common Stock
initially issuable upon exercise of the Warrants have been
duly and validly authorized and reserved for issuance and,
when issued and delivered in accordance with the provisions of
the Securities, will be duly and validly issued and fully paid
and non-assessable;
(v) The Notes and the Warrants have been
duly authorized, executed, authenticated and, in the case of
Warrants, countersigned by the Warrant Agent as provided in
the Warrant Agreement, issued and delivered and constitute
valid and legally binding obligations of the Company entitled
to the
17
benefits provided by the Indenture and the Warrant Agreement,
and the Securities and the Indenture and Warrant Agreement
conform to the descriptions thereof in the Prospectus, as
amended or supplemented. To such counsel's knowledge, the
Securities have not been issued in violation of or subject to
any preemptive right, co-sale right, registration right, right
of first refusal or other similar right of stockholders;
(vi) The Company has the corporate power and
authority to enter into this Agreement and to issue, sell and
deliver to the Underwriters the Securities to be issued and
sold by it hereunder;
(vii) This Agreement has been duly
authorized by all necessary corporate action on the part of
the Company and has been duly executed and delivered by the
Company and, assuming due authorization, execution and
delivery by you, is a valid and binding agreement of the
Company, enforceable in accordance with its terms, except
insofar as indemnification provisions may be limited by
applicable law and to which counsel need not express any
opinion and except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting creditors' rights generally or
by general equitable principles;
(viii) The Registration Statement has become
effective under the Act and, to such counsel's knowledge, no
stop orders suspending the effectiveness of the Registration
Statement have been issued and no proceedings for that purpose
have been instituted or are pending or threatened under the
Act;
(ix) The Registration Statement and the
Prospectus, and each amendments or supplements thereto (other
than the financial statements (including supporting schedules)
and financial and statistical data included in the
Registration Statement as to which such counsel need express
no opinion), as of their respective effective dates, and with
respect to the Prospectus as of ___________, 1997, complied as
to form in all material respects with the requirements of the
Act and the applicable Rules and Regulations;
(x) The information in the Prospectus under
the captions "Description of Notes," "Description of
Warrants," and "Description of Common Stock and Other
Securities," to the extent that it constitutes matters of law
or legal conclusions, has been reviewed by such counsel and is
a fair summary of such matters and conclusions;
(xi) The forms of certificates evidencing
the Warrants and filed as exhibits to the Registration
Statement comply with Delaware law;
(xii) The descriptions in the Registration
Statement and the Prospectus of the charter and bylaws of the
Company and of statutes are accurate and fairly present the
information required to be presented by the Act and the
18
applicable Rules and Regulations (provided that Counsel need
not express any opinion as to its completeness);
(xiii) To such counsel's knowledge, there
are no agreements, contracts, leases or documents to which the
Company is a party of a character required to be described or
referred to in the Registration Statement or Prospectus or to
be filed as an exhibit to the Registration Statement that are
not described or referred to therein or filed as required;
(xiv) The performance of this Agreement and
the consummation of the transactions herein contemplated will
not (a) result in any violation of the Company's charter or
bylaws or (b) to such counsel's knowledge, result in a
material breach or violation of any of the terms and
provisions of, or constitute a material default under, any
material bond, debenture, note or other evidence of
indebtedness, or under any material lease, contract,
indenture, mortgage, deed of trust, loan agreement, joint
venture or other agreement or instrument known to such counsel
to which the Company is a party or by which its properties are
bound, or any applicable statute, rule or regulation known to
such counsel or, to such counsel's knowledge, any order, writ
or decree of any court, government or governmental agency or
body having jurisdiction over the Company or over any of its
properties or operations;
(xv) To counsel's knowledge, no consent,
approval, authorization or order of or qualification with any
court, government or governmental agency or body having
jurisdiction over the Company or over any of its properties or
operations is necessary in connection with the consummation by
the Company of the transactions herein contemplated, except
such as have been obtained under the Act or such as may be
required under state or other securities or Blue Sky laws in
connection with the purchase and the distribution of the
Securities by the Underwriters;
(xvi) To such counsel's knowledge, there are
no legal or governmental proceedings pending or threatened
against the Company of a character required to be disclosed in
the Registration Statement or the Prospectus by the Act or the
Rules and Regulations or by the Exchange Act or the applicable
rules and regulations of the Commission thereunder, other than
those described therein;
(xvii) The Warrant Stock to be issued by the
Company pursuant to the terms of the Warrant Agreement has
been duly authorized and, upon issuance and delivery against
payment therefor as described in the Prospectus, will be duly
and validly issued and fully paid and nonassessable, and to
such counsel's knowledge, will not have been issued in
violation of or subject to any preemptive right, co-sale
right, registration right, right of first refusal or other
similar right of stockholders; and
19
(xviii) To such counsel's knowledge, except
as described in the Prospectus, no holders of Common Stock or
other securities of the Company have registration rights with
respect to securities of the Company.
In addition, such counsel shall state that such
counsel has participated in conferences with officials and other representatives
of the Company, the Representative, Underwriters' Counsel and the independent
certified public accountants of the Company, at which the contents of the
Registration Statement and Prospectus and related matters were discussed, and
although (except as specifically set forth in paragraphs (x) and (xii) above)
they have not verified the accuracy or completeness of the statements contained
in the Registration Statement or the Prospectus, nothing has come to the
attention of such counsel that leads them to believe that, at the time the
Registration Statement became effective and at all times subsequent thereto up
to and on the Closing Date and on any later date on which Option Securities are
to be purchased, the Registration Statement and any amendments or supplements,
when such documents became effective or were filed with the Commission (other
than the financial statements including supporting schedules and other financial
and statistical data included in the Registration Statement as to which such
counsel need express no comment) contained any 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 not misleading, or at the Closing Date
or any later date on which the Option Securities are to be purchased, as the
case may be, the Registration Statement, the Prospectus and any amendment or
supplement thereto contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Counsel rendering the foregoing opinion may rely as
to questions of law not involving the laws of the United States or the State of
Delaware upon opinions of local counsel, and as to questions of fact upon
representations or certificates of officers of the Company, and of government
officials, in which case its opinion is to state that they are so relying and
that they have no knowledge of any material misstatement or inaccuracy in any
such opinion, representation or certificate. Copies of any opinion,
representation or certificate so relied upon shall be delivered to you, as
Representative of the Underwriters, and to Underwriters' Counsel.
(e) You shall have received on the Closing Date and
on any later date on which Option Securities are to be purchased, as the case
may be, an opinion of Xxxxxx, Xxxxxxx & Xxxxxxx L.L.P. in form and substance
satisfactory to you, with respect to the sufficiency of all such corporate
proceedings and other legal matters relating to this Agreement and the
transactions contemplated hereby as you may reasonably require, and the Company
shall have furnished to such counsel such documents as they may have requested
for the purpose of enabling them to pass upon such matters.
(f) You shall have received on the Closing Date and
on any later date on which Option Securities are to be purchased, as the case
may be, a letter from Xxxxxx Xxxxxxxx LLP, addressed to the Company and the
Underwriters, dated the Closing Date or such later date on which Option
Securities are to be purchased, as the case may be, confirming that they are
independent certified public accountants with respect to the Company within the
20
meaning of the Act and the applicable published Rules and Regulations and based
upon the procedures described in such letter delivered to you concurrently with
the execution of this Agreement (herein called the "Original Letter"), but
carried out to a date not more than five (5) business days prior to the Closing
Date or such later date on which Option Securities are to be purchased, as the
case may be, (i) confirming, to the extent true, that the statements and
conclusions set forth in the Original Letter are accurate as of the Closing Date
or such later date on which Option Securities are to be purchased, as the case
may be, and (ii) setting forth any revisions and additions to the statements and
conclusions set forth in the Original Letter which are necessary to reflect any
changes in the facts described in the Original Letter since the date of such
letter, or to reflect the availability of more recent financial statements, data
or information. The letter shall not disclose any change in the condition
(financial or otherwise), earnings, operations or business of the Company from
that set forth in the Registration Statement or Prospectus, which, in your sole
judgment, is material and adverse and that makes it, in your sole judgment,
impracticable or inadvisable to proceed with the public offering of the
Securities as contemplated by the Prospectus. The Original Letter from Xxxxxx
Xxxxxxxx LLP shall be addressed to or for the use of the Underwriters in form
and substance satisfactory to the Underwriters and shall (i) represent, to the
extent true, that they are independent certified public accountants with respect
to the Company within the meaning of the Act and the applicable published Rules
and Regulations, (ii) set forth its opinion with respect to its examination of
the balance sheet of the Company as of December 31, 1995 and 1996 and related
statements of operations, stockholders' equity, and cash flows for the years
ended December 31, 1994, 1995 and 1996, and (iii) address other matters agreed
upon by Xxxxxx Xxxxxxxx LLP and you. In addition, you shall have received from
Xxxxxx Xxxxxxxx LLP a letter addressed to the Company and made available to you
for the use of the Underwriters stating that its review of the Company's system
of internal accounting controls, to the extent they deemed necessary in
establishing the scope of its examination of the Company's financial statements
as of December 31, 1996, did not disclose any weaknesses in internal controls
that they considered to be material weaknesses.
(g) You shall have received on the Closing Date and
on any later date on which Option Securities are to be purchased, as the case
may be, a certificate of the Company, dated the Closing Date or such later date
on which Option Securities are to be purchased, as the case may be, signed by
the President and by the Chief Financial Officer of the Company, to the effect
that, and you shall be satisfied that:
(i) The representations and warranties of
the Company in this Agreement are true and correct, as if made
on and as of the Closing Date or any later date on which
Option Securities are to be purchased, as the case may be, and
the Company has complied, in all material aspects, with all
the agreements and satisfied all the conditions on its part to
be performed or satisfied, in all material respects, at or
prior to the Closing Date or any later date on which Option
Securities are to be purchased, as the case may be;
(ii) No stop orders suspending the
effectiveness of the Registration Statement have been issued
and no proceedings for that purpose have been instituted or,
to their knowledge, are pending or threatened under the Act;
21
(iii) When the Registration Statement became
effective and at all times subsequent thereto up to the
delivery of such certificate, the Registration Statement and
the Prospectus, and any amendments or supplements thereto,
contained all material information required to be included
therein by the Act and the Rules and Regulations or the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, as the case may be, and in all material
respects conformed to the requirements of the Act and the
Rules and Regulations or the Exchange Act and the applicable
rules and regulations of the Commission thereunder, as the
case may be, the Registration Statement, and any amendment or
supplement thereto, did not and does not include any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, the Prospectus, and any
amendment or supplement thereto, did not and does not include
any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and, since the effective date of the Registration
Statement, there has occurred no event required to be set
forth in an amended or supplemented Prospectus that has not
been so set forth; and
(iv) Subsequent to the respective dates as
of which information is given in the Registration Statement
and Prospectus, there has not been (a) any material adverse
change in the condition (financial or otherwise), earnings,
operations or business of the Company, (b) any transaction
that is material to the Company, except transactions entered
into in the ordinary course of business, (c) any obligation,
direct or contingent, that is material to the Company,
incurred by the Company, except obligations incurred in the
ordinary course of business, (d) any change in the capital
stock or outstanding indebtedness of the Company that is
material to the Company, (e) any dividend or distribution of
any kind declared, paid or made on the capital stock of the
Company (other than dividends paid in respect of the Company's
preferred stock outstanding on the date of the Prospectus in
amounts not in excess of those described in the Prospectus),
or (f) any loss or damage (whether or not insured) to the
property of the Company which has a material adverse effect on
the condition (financial or otherwise), earnings, operations
or business of the Company.
(h) The Company shall have furnished to you such
further certificates and documents as you shall reasonably request, including
certificates of officers of the Company as to the accuracy of the
representations and warranties of the Company, as to the performance by the
Company of its obligations hereunder and as to the other conditions concurrent
and precedent to the obligations of the Underwriters hereunder.
All such opinions, certificates, letters and
documents will be in compliance with the provisions hereof only if they are
reasonably satisfactory to Underwriters' Counsel. The Company will furnish you
with such number of conformed copies of such opinions, certificates, letters and
documents as you shall reasonably request.
22
7. 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 (including, without
limitation, in its capacity as an Underwriter or as a "qualified independent
underwriter" within the meaning of Schedule E of the Bylaws of the NASD), under
the Act, the Exchange Act or otherwise, specifically including, but not limited
to, losses, claims, damages or liabilities, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any breach of any representation, warranty, agreement or covenant of
the Company herein contained, (ii) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendments or supplements thereto, or 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, or (iii) any untrue statement or alleged untrue statement of any
material fact contained in any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or 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, and agrees to reimburse each Underwriter for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
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, such Preliminary Prospectus or the Prospectus, or
any such amendment or supplement thereto, in reliance upon, and in conformity
with, written information relating to any Underwriter furnished to the Company
by such Underwriter, directly or through you, specifically for use in the
preparation thereof and, provided further, that the indemnity agreement provided
in this Section 7(a) with respect to any Preliminary Prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any losses,
claims, damages, liabilities or actions based upon any untrue statement or
alleged untrue statement of material fact or omission or alleged omission to
state therein a material fact purchased Securities, if a copy of the Prospectus
in which such untrue statement or alleged untrue statement or omission or
alleged omission was corrected had not been sent or given to such person within
the time required by the Act and the Rules and Regulations, unless such failure
is the result of noncompliance by the Company with Section 4(d) hereof.
The indemnity agreement in this Section 7(a) shall
extend upon the same terms and conditions to, and shall inure to the benefit of,
each person, if any, who controls any Underwriter within the meaning of the Act
or the Exchange Act. This indemnity agreement shall be in addition to any
liabilities which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly,
agrees to indemnify and hold harmless the Company against any losses, claims,
damages or liabilities, joint or several, to which the Company may become
subject under the Act or otherwise, specifically including, but not limited to,
losses, claims, damages or liabilities, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
23
(i) any breach of any representation, warranty, agreement or covenant of such
Underwriter herein contained, (ii) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendments or supplements thereto, or 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, or (iii) any untrue statement or alleged untrue statement of any
material fact contained in any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or the omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, in the case of
subparagraphs (ii) and (iii) of this Section 7(b) 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, directly or through
you, specifically for use in the preparation thereof, and agrees to reimburse
the Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such loss, claim, damage,
liability or action.
The indemnity agreement in this Section 7(b) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, each
officer of the Company who signed the Registration Statement and each director
of the Company and each person, if any, who controls the Company within the
meaning of the Act or the Exchange Act. This indemnity agreement shall be in
addition to any liabilities which each Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 7. In case any such
action is brought against any indemnified party, and it notified the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it shall elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified 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 legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party which pose a conflict of interest for such counsel, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of the indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
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 (it being understood,
however, that
24
the indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with appropriate local counsel) approved by the
indemnifying party representing all the indemnified parties under Section 7(a)
or 7(b) hereof who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party. In no event shall any indemnifying party be liable in
respect of any amounts paid in settlement of any action unless the indemnifying
party shall have approved the terms of such settlement; provided that such
consent shall not be unreasonably withheld. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnification could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such indemnification.
(d) In order to provide for just and equitable
contribution in any action in which a claim for indemnification is made pursuant
to this Section 7 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 7 provides for indemnification in such case, all the parties hereto
shall contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in such proportion so
that the Underwriters severally and not jointly are responsible pro rata for the
portion represented by the percentage that the underwriting discount bears to
the initial public offering price, and the Company is responsible for the
remaining portion, provided, however, that (i) no Underwriter shall be required
to contribute any amount in excess of the underwriting discount applicable to
the Securities purchased by such Underwriter and (ii) no person guilty of a
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. The contribution agreement in this Section 7(d)
shall extend upon the same terms and conditions to, and shall inure to the
benefit of, each person, if any, who controls the Underwriters or the Company
within the meaning of the Act or the Exchange Act and each officer of the
Company who signed the Registration Statement and each director of the Company.
(e) If the indemnification provided for in this
Section 7 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) 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 on the one hand and the Underwriters
of the Securities on the other from the offering of the Securities to which such
a loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnifying party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or
25
payable by such indemnifying party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters of the Securities on the other in
connection with the statements or omissions which 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 on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such 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 on the
one hand or such 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 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
provision 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
applicable Securities 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 obligations of the Underwriters of Securities in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(f) The obligations of the Company under this Section
7 shall be in addition to any liability which the Company 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 7 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 other and director of the Company and to each
person, if any, who controls the Company with the meaning of the Act.
(g) The parties to this Agreement hereby acknowledge
that they are sophisticated business persons who were represented by counsel
during the negotiations regarding the provisions hereof including, without
limitation, the provisions of this Section 7, and are fully informed regarding
said provisions. They further acknowledge that the provisions of this Section 7
fairly allocate the risks in light of the ability of the parties to investigate
the Company and its business in order to assure that adequate disclosure is made
in the Registration Statement and Prospectus as required by the Act and the
Exchange Act. The parties are advised
26
that federal or state public policy, as interpreted by the courts in certain
jurisdictions, may be contrary to certain of the provisions of this Section 7,
and the parties hereto hereby expressly waive and relinquish any right or
ability to assert such public policy as a defense to a claim under this Section
7 and further agree not to attempt to assert any such defense.
8. Representations, Warranties, Covenants and Agreements to Survive
Delivery. All representations, warranties, covenants and agreements of the
Company and the Underwriters herein or in certificates delivered pursuant
hereto, and the indemnity and contribution agreements contained in Section 7
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
within the meaning of the Act or the Exchange Act, or by or on behalf of the
Company or any of its officers, directors or controlling persons within the
meaning of the Act or the Exchange Act, and shall survive the delivery of the
Securities to the several Underwriters hereunder or termination of this
Agreement.
9. Substitution of Underwriters. If any Underwriter or Underwriters
shall fail to take up and pay for the number of Firm Securities agreed by such
Underwriter or Underwriters to be purchased hereunder upon tender of such Firm
Securities in accordance with the terms hereof, and if the aggregate number of
Firm Securities which such defaulting Underwriter or Underwriters so agreed but
failed to purchase does not exceed 10% of the Firm Securities, the remaining
Underwriters shall be obligated, severally in proportion to their respective
commitments hereunder, to take up and pay for the Firm Securities of such
defaulting Underwriter or Underwriters.
If any Underwriter or Underwriters so defaults and the
aggregate number of Firm Securities which such defaulting Underwriter or
Underwriters agreed but failed to take up and pay for exceeds 10% of the Firm
Securities, the remaining Underwriters shall have the right, but shall not be
obligated, to take up and pay for (in such proportions as may be agreed upon
among them) the Firm Securities which the defaulting Underwriter or Underwriters
so agreed but failed to purchase. If such remaining Underwriters do not, at the
Closing Date, take up and pay for the Firm Securities which the defaulting
Underwriter or Underwriters so agreed but failed to purchase, the Closing Date
shall be postponed for twenty-four (24) hours to allow the several Underwriters
the privilege of substituting within twenty-four (24) hours (including
non-business hours) another underwriter or underwriters (which may include any
nondefaulting Underwriter) satisfactory to the Company. If no such underwriter
or underwriters shall have been substituted as aforesaid by such postponed
Closing Date, the Closing Date may, at the option of the Company, be postponed
for a further twenty-four (24) hours, if necessary, to allow the Company the
privilege of finding another underwriter or underwriters, satisfactory to you,
to purchase the Firm Securities which the defaulting Underwriter or Underwriters
so agreed but failed to purchase. If it shall be arranged for the remaining
Underwriters or substituted underwriter or underwriters to take up the Firm
Securities of the defaulting Underwriter or Underwriters as provided in this
Section 9, (i) the Company shall have the right to postpone the time of delivery
for a period of not more than seven (7) full business 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 promptly to file any amendments to the Registration Statement or
supplements to the Prospectus which may
27
thereby be made necessary, and (ii) the respective number of Firm Securities to
be purchased by the remaining Underwriters and substituted underwriter or
underwriters shall be taken as the basis of their underwriting obligation. If
the remaining Underwriters shall not take up and pay for all such Firm
Securities so agreed to be purchased by the defaulting Underwriter or
Underwriters or substitute another underwriter or underwriters as aforesaid and
the Company shall not find or shall not elect to seek another underwriter or
underwriters for such Firm Securities as aforesaid, then this Agreement shall
terminate.
In the event of any termination of this Agreement pursuant to
the preceding paragraph of this Section 9, the Company shall not be liable to
any Underwriter (except as provided in Sections 5 and 7 hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than for
some reason permitted under this Agreement, to purchase the number of Firm
Securities agreed by such Underwriter to be purchased hereunder, which
Underwriter shall remain liable to the Company and the other Underwriters for
damages, if any, resulting from such default) be liable to the Company (except
to the extent provided in Sections 5 and 8 hereof).
The term "Underwriter" in this Agreement shall include any
person substituted for an Underwriter under this Section 9.
10. Effective Date of this Agreement and Termination.
-------------------------------------------------
(a) This Agreement shall become effective at the
earlier of (i) 6:30 A.M., Arizona time, on the second full business day
following the effective date of the Registration Statement, or (ii) the time of
the first public offering of any of the Securities by the Underwriters after the
Registration Statement becomes effective. The time of the first public offering
shall mean the time of the release by you, for publication, of the first
newspaper advertisement relating to the Securities, or the time at which the
Securities are first generally offered by the Underwriters to the public by
letter, telephone, telegram or telecopy, whichever shall first occur. By giving
notice as set forth in Section 11 before the time this Agreement becomes
effective, you, as Representative of the several Underwriters, or the Company,
may prevent this Agreement from becoming effective without liability of any
party to any other party, except as provided in Sections 4(j), 5 and 7 hereof.
(b) You, as Representative of the several
Underwriters, shall have the right to terminate this Agreement by giving notice
as hereinafter specified at any time at or prior to the Closing Date or on or
prior to any later date on which Option Securities are to be purchased, as the
case may be, (i) if the Company shall have failed, refused or been unable to
perform any agreement on its part to be performed, or because any other
condition of the Underwriters' obligations hereunder required to be fulfilled is
not fulfilled, including, without limitation, any change in the condition
(financial or otherwise), earnings, operations, business or business prospects
of the Company from that set forth in the Registration Statement or Prospectus,
which, in your sole judgment, is material and adverse, or (ii) if additional
material governmental restrictions, not in force and effect on the date hereof,
shall have been imposed upon trading in securities generally or minimum or
maximum prices shall have been generally established on the New York Stock
Exchange or on the American Stock Exchange or in the over
28
the counter market by the NASD, or trading in securities generally shall have
been suspended on either such exchange or in the over the counter market by the
NASD, or if a banking moratorium shall have been declared by federal, New York
or Arizona authorities, or (iii) if the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such character as
to interfere materially with the conduct of the business and operations of the
Company regardless of whether or not such loss shall have been insured, or (iv)
if there shall have been a material adverse change in the general political or
economic conditions or financial markets as in your reasonable judgment makes it
inadvisable or impracticable to proceed with the offering, sale and delivery of
the Securities, or (v) if there shall have been an outbreak or escalation of
hostilities or of any other insurrection or armed conflict or the declaration by
the United States of a national emergency which, in the reasonable opinion of
the Representative, makes it impracticable or inadvisable to proceed with the
public offering of the Securities as contemplated by the Prospectus. Any
termination pursuant to any of subparagraphs (ii) through (v) above shall be
without liability of any party to any other party except as provided in Sections
4(j), 5 and 7 hereof. In the event of termination pursuant to subparagraph (i)
above, the Company shall also remain obligated to pay costs and expenses
pursuant to Sections 4(i), 5 and 7 hereof.
If you elect to prevent this Agreement from becoming effective
or to terminate this Agreement as provided in this Section 10, you shall
promptly notify the Company by telephone, telecopy or telegram, in each case
confirmed by letter. If the Company shall elect to prevent this Agreement from
becoming effective, the Company shall promptly notify you by telephone, telecopy
or telegram, in each case, confirmed by letter.
11. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to you shall be
mailed, delivered, telegraphed (and confirmed by letter) or telecopied (and
confirmed by letter) to you c/o Peacock, Xxxxxx, Xxxxxx & Given, Inc., 0000
Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, telecopier number (602)
952-0220, Attention: Xxxxxxx X. Xxxxxxxx; if sent to the Company, such notice
shall be mailed, delivered, telegraphed (and confirmed by letter) or telecopied
(and confirmed by letter) to 0000 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000,
telecopier number (000) 000-0000, Attention: Xxxxxxxx Xxxxxxxxxxxx.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters and the Company and their respective
executors, administrators, successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person
or corporation, other than the parties hereto and their respective executors,
administrators, successors and assigns, and their controlling persons within the
meaning of the Act or the Exchange Act, officers and directors referred to in
Section 7 hereof, any legal or equitable right, remedy or claim in respect of
this Agreement or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective executors,
administrators, successors and assigns and said controlling persons and said
officers and directors, and for the benefit of no other person or corporation.
No purchaser of any of the Securities from any Underwriter shall be construed a
successor or assign by reason merely of
29
such purchase. The Agreement constitutes the entire agreement and understanding
of the parties with respect to the subject matter hereof.
In all dealings with the Company under this Agreement, you
shall act on behalf of each of the several Underwriters, and the Company shall
be entitled to act and rely upon any statement, request, notice or agreement
made or given by you on behalf of each of the several Underwriters.
13. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Arizona, without regard to choice
or conflict of law principles.
14. Counterparts. This Agreement may be signed in several counterparts,
each of which will constitute an original.
30
If the foregoing correctly sets forth the understanding among
the Company and the several Underwriters, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a
binding agreement among the Company and the several Underwriters.
Very truly yours,
MOBILE MINI, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
---------------------------
Accepted as of the date first above written:
XXXXXXX, HISLOP, XXXXXX & GIVEN, INC.
On their behalf and on behalf of each of the several Underwriters named in
Schedule A hereto.
By: XXXXXXX, XXXXXX, XXXXXX & GIVEN, INC.
By:
--------------------------------
Name:
-----------------------
Title:
----------------------
31
SCHEDULE A
Principal Amount
of Securities
To Be
Underwriters Purchased
Xxxxxxx, Xxxxxx, Xxxxxx & Xxxxx, Inc. ........................
Total................................................ $6,000,000.00
=============
