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EXHIBIT 1.1
DYNAMEX INC.
___________ SHARES
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
__________________
UNDERWRITING AGREEMENT
____________, 1998
XXXXXXXX & CO. INC.
XXXXXXX XXXXX & COMPANY, L.L.C
XXXX XXXXXXXXX & XXXXXXXX CO.
As Representatives of the several
Underwriters named in Schedule I hereto
c/x Xxxxxxxx & Co. Inc.
Equitable Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Dynamex Inc., a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell, and certain
stockholders of the Company named in Schedule II hereto (the "Selling
Stockholders") propose to sell, to the Underwriters named in Schedule I hereto
(the "Underwriters"), an aggregate of ___________ shares of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company, of which _________
shares are to be issued and sold by the Company and an aggregate of ________
shares are to be sold by the Selling Stockholders in the respective amounts set
forth in Schedule II hereto. The aggregate ________ shares of Common Stock to be
sold by the Company and the Selling Stockholders are herein collectively
referred to as the "Firm Securities." In addition, the Company and the Selling
Stockholders propose to grant to the Underwriters an option to purchase up to an
aggregate of an additional ________ shares of Common Stock (the "Option
Securities") on the terms and for the purposes set forth in Section 2 hereof,
all of which are to be issued and sold by the Company. The Firm Securities and
the Option Securities are herein collectively referred to as the "Securities."
Except as may be expressly set forth below, any reference to you in this
Agreement
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shall be solely in your capacity as the Representatives.
1. (a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-1 (File No.
333- ), and as part thereof a preliminary prospectus, in respect of the
Securities, has been filed with the Securities and Exchange Commission
(the "Commission") in the form heretofore delivered to you and, with
the exception of exhibits to the registration statement, to you for
each of the other Underwriters; if such registration statement has not
become effective, an amendment (the "Final Amendment") to such
registration statement, including a form of final prospectus, necessary
to permit such registration statement to become effective, will
promptly be filed by the Company with the Commission; if such
registration statement has become effective and any post-effective
amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, which
amendment or amendments shall be in acceptable form to you, the most
recent such amendment has been declared effective by the Commission; if
such registration statement has become effective, a final prospectus
(the "Rule 430A Prospectus") relating to the Securities containing
information permitted to be omitted at the time of effectiveness by
Rule 430A of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), will promptly be filed
by the Company pursuant to Rule 424(b) of the rules and regulations of
the Commission under the Act (any preliminary prospectus filed as part
of such registration statement being herein called a "Preliminary
Prospectus," such registration statement as amended at the time that it
becomes or became effective, or, if applicable, as amended at the time
the most recent post-effective amendment to such registration statement
filed with the Commission prior to the execution and delivery of this
Agreement became effective (the "Effective Date"), including a
registration statement (if any) filed pursuant to Rule 462(b) under the
Act increasing the size of the offering registered under the Act and
including all exhibits thereto and all information deemed to be a part
thereof at such time pursuant to Rule 430A of the rules and regulations
of the Commission under the Act, being herein called the "Registration
Statement" and the final prospectus relating to the Securities in the
form first filed pursuant to Rule 424(b)(1) or (4) of the rules and
regulations of the Commission under the Act or, if no such filing is
required, the form of final prospectus included in the Registration
Statement, being herein called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity
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with information furnished in writing to the Company by an Underwriter
through you expressly for use therein;
(iii) On the Effective Date and the date the Prospectus is
filed with the Commission, and when any further amendment or
supplements thereto become effective or are filed with the Commission,
as the case may be, the Registration Statement, the Prospectus and such
amendment or supplements did and will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder, and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein;
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and to conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases property, or conducts any
business, so as to require such qualification, except where the failure
to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the business affairs or prospects
of the Company and its subsidiaries, taken as a whole (such adverse
effect to be hereinafter referred to as a "Material Adverse Effect");
and each of the Company's subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and to conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
property, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect;
(v) All 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,
equities, security interests, or claims except to the extent
specifically stated in the Prospectus; and there are no outstanding
options, warrants or other rights calling for the issuance of, and
there are no commitments, plans or arrangements to issue, any shares of
capital stock of any subsidiary or any security convertible or
exchangeable or exercisable for capital stock of any subsidiary; except
for the shares of stock of each subsidiary owned directly or indirectly
by the Company, neither the Company nor any subsidiary owns directly or
indirectly any shares of capital stock of any corporation or have any
equity interest in any firm, partnership, joint venture, association or
other entity;
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(vi) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement; the
execution, delivery and performance by the Company of its obligations
under this Agreement have been duly and validly authorized by all
requisite corporate action of the Company; and this Agreement
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and except as enforceability of those provisions relating to indemnity
may be limited by Federal securities laws and principles of public
policy;
(vii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, which loss or interference is material to the
Company and its subsidiaries, taken as a whole; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been, and prior to the Time
of Delivery (as defined in Section 4 hereof) there will not be, any
change in the capital stock (other than shares issued pursuant to
exercise of employee stock options that the Prospectus indicates are
outstanding (the "Employee Option Shares") or short-term debt or
long-term debt of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as whole,
otherwise than as set forth or contemplated in the Prospectus;
(viii) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described or contemplated by the Prospectus, or such as do not
materially adversely interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries, and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions that do not adversely affect or interfere
with the use made and proposed to be made of such real property and
buildings by the Company and its subsidiaries;
(ix) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement, and all the
issued shares of capital stock of the Company (including the Securities
to be sold by the Selling Stockholders) have been duly and validly
authorized and issued, are fully paid and non-assessable, are free of
any preemptive rights, rights of first refusal or similar rights, were
issued and sold in compliance with the applicable Federal and state
securities laws and conform in all material respects to the description
in the Prospectus; except as described in the
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Prospectus, there are no outstanding options, warrants or other rights
calling for the issuance of, and there are no commitments, plans or
arrangements to issue, any shares of capital stock of the Company or
any security convertible or exchangeable or exercisable for capital
stock of the Company; there are no holders of securities of the Company
who, by reasons of the filing of the Registration Statement have the
right (and have not waived such right) to request the Company to
include in the Registration Statement securities owned by them;
(x) The Securities to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and
non-assessable, and will conform in all material respects to the
description thereof in the Prospectus and will be quoted on the Nasdaq
National Market as of the Effective Date;
(xi) The performance of this Agreement, the consummation
of the transactions herein contemplated and the issue and sale of the
Securities and the compliance by the Company with all the provisions of
this Agreement will not result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge, claim, or encumbrance upon,
any of the property or assets of the Company or any of its subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or the Bylaws (or other constituent documents), in each
case as amended to the date hereof, of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any court or governmental agency or body is required for the
issue and sale of the Securities or the consummation of the other
transactions contemplated by this Agreement, except the registration
under the Act of the Securities, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters;
(xii) Except as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries or any of their respective officers or directors is
a party or of which any property of the Company or any of its
subsidiaries is the subject, other than litigation or proceedings
incident to the business conducted by the Company and its subsidiaries
which will not, individually or in the aggregate if determined
adversely to the Company or any of its subsidiaries, have a Material
Adverse Effect; and, to the best of the Company's knowledge, no such
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proceedings are threatened; and neither the Company nor any of its
subsidiaries is involved in any labor dispute, nor, to the Company's
knowledge, is any labor dispute threatened;
(xiii) The Company and its subsidiaries have such licenses,
permits and other approvals or authorizations of and from governmental
or regulatory authorities ("Permits") as are necessary under applicable
law to own their respective properties and to conduct their respective
businesses in the manner now being conducted and as described in the
Prospectus subject in each case to such qualification as may be set
forth in the Prospectus and except where the failure to have such
Permits would not have a Material Adverse Effect; and the Company and
its subsidiaries have fulfilled and performed all of their respective
obligations with respect to such Permits, and no event has occurred
which allows, or after notice or lapse of time or both would allow,
revocation or termination thereof or result in any other material
impairment of the rights of the holder of any such permits subject in
each case to such qualification as may be set forth in the Prospectus
and except where the failure to fulfill or perform or the occurrence of
such an event would not have a Material Adverse Effect;
(xiv) Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating
to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws;
(xv) Deloitte & Touche, L.L.P. who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect
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to the audited consolidated financial statements and schedules included
in the Registration Statement and the Prospectus, are independent
public accountants as required by the Act and the rules and regulations
of the Commission thereunder;
(xvi) The consolidated financial statements and schedules
of the Company and its subsidiaries included in the Registration
Statement and the Prospectus present fairly the financial condition,
the results of operations and the cash flows of the Company and its
subsidiaries as of the dates and for the periods therein specified in
conformity with U.S. generally accepted accounting principles
consistently applied throughout the periods involved, except as
otherwise stated therein; and the other financial and statistical
information and data set forth in the Registration Statement and the
Prospectus is accurately presented and, to the extent such information
and data is derived from the financial statements and books and records
of the Company and its subsidiaries, is prepared on a basis consistent
with such financial statements and the books and records of the Company
and its subsidiaries; the pro forma financial information included in
the Registration Statement and the Prospectus have been properly
compiled and comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X of
the Commission; no other financial statements or schedules are required
to be included in the Registration Statement and the Prospectus;
(xvii) There are no statutes or governmental regulations, or
any contracts or other documents that are required to be described in
or filed as exhibits to the Registration Statement which are not
described therein or filed as exhibits thereto; and all such contracts
to which the Company or any subsidiary is a party have been duly
authorized, executed and delivered by the Company or such subsidiary,
constitute valid and binding agreements of the Company or such
subsidiary and are enforceable against the Company or subsidiary in
accordance with the terms thereof;
(xviii) The Company and its subsidiaries own or possess
adequate patent rights or licenses or other rights to use patent
rights, inventions, trademarks, service marks, trade names, copyrights,
technology and know-how necessary to conduct the general business now
or proposed to be operated by them as described in the Prospectus
except where the failure to have such rights would not have a Material
Adverse Effect; neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights
of others with respect to any patent, patent rights, inventions,
trademarks, service marks, trade names, copyrights, technology or
know-how which, singly or in the aggregate, could materially adversely
affect the business, operations, financial condition, income or
business prospects of the Company and its subsidiaries considered as a
whole; and, the discoveries, inventions, products or processes of the
Company and its subsidiaries referred to in the Prospectus do not, to
the Company's knowledge, infringe or conflict with any patent or right
of any third party, or any discovery, invention, product or process
which is the subject of a patent application filed by any third party,
known to the Company;
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(xix) Neither the Company nor any of its subsidiaries are
in violation of any term or provision of its Certificate of
Incorporation or Bylaws (or similar corporate constituent documents),
in each case as amended to the date hereof, or are in violation in any
material respect of any law, ordinance, administrative or governmental
rule or regulation applicable to the Company or any of its
subsidiaries, or of any decree of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries;
(xx) No default exists, and no event has occurred which
with notice or lapse of time, or both, would constitute a default in
the due performance and observance of any term, covenant or condition
of any indenture, mortgage, deed of trust, bank loan or credit
agreement, lease or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which any of them or their
respective properties is bound or may be affected where such default
would have a Material Adverse Effect;
(xxi) The Company and its subsidiaries have timely filed
all federal and material state tax returns and notices required to be
filed by the Company or its subsidiaries and have paid all material
taxes of any nature whatsoever for all tax years through December 31,
1997, to the extent such taxes have become due. The Company has no
knowledge, or any reasonable grounds to know, of any tax deficiencies
which would have a Material Adverse Effect on the Company or any of its
subsidiaries; the Company and its subsidiaries have paid all taxes
which have become due, whether pursuant to any assessments, or
otherwise, and there is no further liability (whether or not disclosed
on such returns) or assessments for any such taxes, and no interest or
penalties accrued or accruing with respect thereto, except for any such
assessment, fine and penalty that is currently being contested in good
faith or as may be set forth or adequately reserved for in the
financial statements included in the Registration Statement; the
amounts currently set up as provisions for taxes or otherwise by the
Company and its subsidiaries on their books and records are sufficient
for the payment of all their unpaid federal, foreign, state, county and
local taxes accrued through the dates as of which they speak, and for
which the Company and its subsidiaries may be liable in their own
rights, or as a transferee of the assets of, or as successor to any
other corporation, association, partnership, joint venture or other
entity;
(xxii) The Company will not, during the period of 120 days
after the date hereof except pursuant to this Agreement, offer, sell,
contract to sell or otherwise dispose of any capital stock of the
Company (or securities convertible into, or exchangeable for, capital
stock of the Company), directly or indirectly, without the prior
written consent of Xxxxxxxx & Co. Inc.;
(xxiii) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
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conformity with generally accepted accounting principles and to
maintain accountability for assets; (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;
(xxiv) Neither the Company nor any of its subsidiaries is in
violation of any applicable law relating to discrimination in the
hiring, promotion or paying of employees nor any applicable wages and
hours laws, nor any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations
promulgated thereunder, where such violation would have a Material
Adverse Effect;
(xxv) The Company and each of its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied
for; and except as described in the Prospectus neither the Company nor
any such subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
Material Adverse Effect;
(xxvi) None of the Company or its subsidiaries, or its
officers, directors, employees or agents has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity, or made any unlawful payment of
funds of the Company or any subsidiary or received or retained any
funds in violation of any law, rule or regulation;
(xxvii) The Company is not, and upon the issuance and sale of
the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act"); and
(xxviii) None of the Company or its subsidiaries, or its
officers, directors, employees or agents has taken or will take,
directly or indirectly, any action designed to or which has constituted
or that might be reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, each of the Underwriters, as follows:
(i) To the best knowledge of such Selling Stockholder,
the representations
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and warranties of the Company contained in Section 1(a) hereof are true
and correct; such Selling Stockholder has reviewed and is familiar with
the Registration Statement and the Prospectus and, to the best
knowledge of such Selling Stockholder, neither the Prospectus nor any
amendments or supplements thereto includes any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; such Selling Stockholder is not
prompted to sell the Securities to be sold by such Selling Stockholder
hereunder by any information concerning the Company or any subsidiary
of the Company which is not set forth in the Prospectus;
(ii) Each Selling Stockholder has the full right, power
and authority to enter into this Agreement, a Power of Attorney and a
Custody Agreement and to sell, transfer and deliver the Securities to
be sold by such Selling Stockholder hereunder. The execution and
delivery of this Agreement, the Power of Attorney and the Custody
Agreement and the sale and delivery of the Securities to be sold by
such Selling Stockholder and the consummation of the transactions
contemplated herein and compliance by such Selling Stockholder with its
obligations hereunder have been duly authorized by such Selling
Stockholder and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any tax, lien, charge or encumbrance upon the Securities to be sold by
such Selling Stockholder or any property or assets of such Selling
Stockholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which such Selling Stockholder is a party or
by which such Selling Stockholder may be bound, or to which any of the
property or assets of such Selling Stockholder is subject, nor will
such action result in any violation of the provisions of the charter or
bylaws or other organizational instrument of such Selling Stockholder,
if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over such Selling Stockholder or any of its properties;
(iii) Such Selling Stockholder has and will at the Time of
Delivery have good and marketable title to the Securities to be sold by
such Selling Stockholder hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance
of any kind, other than pursuant to this Agreement; and upon delivery
of such Securities and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no notice of any
adverse claim, each of the Underwriters will receive good and
marketable title to the Securities purchased by it from such Selling
Stockholder, free and clear of any security interest, mortgage, pledge,
lien, charge, claim, equity or encumbrance of any kind;
(iv) Such Selling Stockholder has duly executed and
delivered, in the form heretofore furnished to the Representatives,
each of the Power of Attorney and the Custody Agreement, with [Xxxxxxx
X. XxXxxxxxxx] and [Xxxxxx X. Xxxxx], or either of
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them, as attorney(s)-in-fact (the "Attorney(s)-in-Fact") and the
Company, as custodian (the "Custodian"); the Custodian is authorized to
deliver the Securities to be sold by such Selling Stockholder hereunder
and to accept payment therefor; and each Attorney-in-Fact is authorized
to execute and deliver this Agreement and the certificate referred to
in Section 7(k), to sell, assign and transfer to the Underwriters the
Securities to be sold by such Selling Stockholder hereunder, to
determine the purchase price to be paid by the Underwriters to such
Selling Stockholder, to authorize the delivery of the Securities to be
sold by such Selling Stockholder hereunder, to accept payment therefor,
and otherwise to act on behalf of such Selling Stockholder in
connection with this Agreement;
(v) Such Selling Stockholder has not taken, and will not
take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities;
(vi) No filing with, or consent, approval, authorization,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the performance by each Selling Stockholder of its
obligations hereunder or in the Power of Attorney and the Custody
Agreement, or in connection with the sale and delivery of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as may have previously been
made or obtained or as may be required under the Act or the Exchange
Act or the regulations promulgated thereunder or state securities laws;
(vii) Such Selling Stockholder will not, during the period
of 120 days after the date hereof, offer, sell, contract to sell or
otherwise dispose of any capital stock of the Company (or securities
convertible into, or exchangeable for, capital stock of the Company),
directly or indirectly, without the prior written consent of Xxxxxxxx &
Co. Inc.; the foregoing sentence shall not apply to the Securities to
be sold hereunder;
(viii) Certificates for all of the Securities to be sold by
such Selling Stockholder pursuant to this Agreement, in suitable form
for transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank with signatures guaranteed, have been
placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Securities to the Underwriters pursuant to
this Agreement; and
(ix) Neither such Selling Stockholder nor any of such
Selling Stockholder's affiliates directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, Section 1(m) of the Bylaws of the National Association of
Securities Dealers, Inc.), any member firm of the National Association
of Securities Dealers, Inc.
2. Subject to the terms and conditions herein set forth, the
Company agrees to issue
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and sell to the several Underwriters an aggregate of _____________ Firm
Securities and the Selling Stockholders, severally and not jointly, agree to
sell an aggregate of ________ Firm Securities (each to sell the number of Firm
Securities set forth opposite the name of such Selling Stockholder in Schedule
II hereto), and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company and the Selling Stockholders, at a purchase price of
$____ per share, the respective aggregate number of Firm Securities determined
in the manner set forth below. The obligation of each Underwriter to the Company
and the Selling Stockholders shall be to purchase that portion of the number of
shares of Common Stock to be sold by the Company and the Selling Stockholders
pursuant to this Agreement as the number of Firm Securities set forth opposite
the name of such Underwriter on Schedule I bears to the total number of Firm
Securities to be purchased by the Underwriters pursuant to this Agreement, in
each case adjusted by you such that no Underwriter shall be obligated to
purchase Firm Securities other than in 100 shares amounts. In making this
Agreement, each Underwriter is contracting severally and not jointly.
In addition, subject to the terms and conditions herein set forth, the
Company agrees to issue and sell up to _______ Option Securities to the
Underwriters, as required (for the sole purpose of covering over-allotments in
the sale of the Firm Securities), at the purchase price per share of the Firm
Securities being sold by the Company and the Selling Stockholders as stated in
the preceding paragraph. The right to purchase the Option Securities may be
exercised by your giving prior written or telephonic notice (subsequently
confirmed in writing) to the Company of your determination to purchase all or a
portion of the Option Securities. Such notice may be given at any time within a
period of 30 days following the date of this Agreement. Option Securities shall
be purchased severally for the account of each Underwriter in proportion to the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto. No Option Securities shall be delivered to or for the
accounts of the Underwriters unless the Firm Securities shall be simultaneously
delivered or shall theretofore have been delivered as herein provided. The
respective purchase obligations of each Underwriter shall be adjusted by you so
that no Underwriter shall be obligated to purchase Option Securities other than
in 100 share amounts. The Underwriters may cancel any purchase of Option
Securities at any time prior to the Option Securities Delivery Date (as defined
in Section 4 hereof) by giving written notice of such cancellation to the
Company.
3. The Underwriters propose to offer the Securities for sale upon
the terms and conditions set forth in the Prospectus.
4. Certificates in definitive form for the Firm Securities to be
purchased by each Underwriter hereunder shall be delivered by or on behalf of
the Company and the Selling Stockholders to you for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer, payable in same day funds, to the
order of the Company and the Selling Stockholders, as appropriate, for the
purchase price of the Firm Securities being sold by the Company and the Selling
Stockholders at the office of Xxxxxxxx & Co. Inc., Equitable Center, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 9:30 a.m., New York City time, on __________ ___,
1998, or at such other time, date and place as you and
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the Company may agree upon in writing, such time and date being herein called
the "Time of Delivery."
Certificates in definitive form for the Option Securities to be
purchased by each Underwriter hereunder shall be delivered by or on behalf of
the Company to you for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price thereof by wire transfer,
payable in same day funds, to the order of the Company for the purchase price of
the Option Securities, in New York, New York, at such time and on such date (not
earlier than the Time of Delivery nor later than ten business days after giving
of the notice delivered by you to the Company with reference thereto) and in
such denominations and registered in such names as shall be specified in the
notice delivered by you to the Company with respect to the purchase of such
Option Securities. The date and time of such delivery and payment are herein
sometimes referred to as the "Option Securities Delivery Date." The obligations
of the Underwriters shall be subject, in their discretion, to the condition that
there shall be delivered to the Underwriters on the Option Securities Delivery
Date opinions and certificates, dated such Option Securities Delivery Date,
referring to the Option Securities, instead of the Firm Securities, but
otherwise to the same effect as those required to be delivered at the Time of
Delivery pursuant to Section 7(d), 7(e), 7(f), 7(i) and 7(j).
Certificates for the Firm Securities and the Option Securities so to be
delivered will be in good delivery form, and in such denominations and
registered in such names as you may request not less than 48 hours prior to the
Time of Delivery and the Option Securities Delivery Date, respectively. Such
certificates will be made available for checking and packaging in New York, New
York, at least 24 hours prior to the Time of Delivery and Option Securities
Delivery Date.
5. The Company covenants and agrees with each of the
Underwriters:
(a) If the Registration Statement has not become
effective, to file promptly the Final Amendment with the Commission and
use its best efforts to cause the Registration Statement to become
effective; if the Registration Statement has become effective, to file
promptly the Rule 430A Prospectus with the Commission; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you after reasonable notice
thereof; to advise you, promptly after it receives notice thereof of
the time when the Registration Statement, or any amendment thereto, or
any amended Registration Statement has become effective or any
supplement to the Prospectus or any amended Prospectus has been filed,
of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and in the event
of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain withdrawal of such order;
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(b) Promptly from time to time to take such action as you
may request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction or to
take any action that would subject it to service of process in suits
other than those arising out of the offering of the Securities;
(c) To furnish each of the Representatives and counsel
for the Underwriters, without charge, signed copies of the registration
statement originally filed with respect to the Securities and each
amendment thereto (in each case including all exhibits thereto) and to
each other Underwriter, without charge, a conformed copy of such
registration statement and each amendment thereto (in each case without
exhibits thereto) and, so long as a prospectus relating to the
Securities is required to be delivered under the Act, as many copies of
each Preliminary Prospectus, the Prospectus and all amendments or
supplements thereto as you may from time to time reasonably request. If
at any time when a prospectus is required to be delivered under the Act
an event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or if
for any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Act, the Company will forthwith
prepare and, subject to the provisions of Section 5(a) hereof, file
with the Commission an appropriate supplement or amendment thereto, and
will furnish to each Underwriter and to any dealer in securities,
without charge, as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance
in accordance with the requirements of Section 10 of the Act;
(d) To make generally available to its stockholders as
soon as practicable, but in any event not later than 45 days after the
close of the period covered thereby, an earnings (which need not be
audited) statement in form complying with the provisions of Section
11(a) of the Act covering a period of 12 consecutive months beginning
not later than the first day of the Company's fiscal quarter next
following the Effective Date;
(e) To file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act subsequent to the Effective Date and during any period when the
Prospectus is required to be delivered;
(f) For a period of five years from the Effective Date,
to furnish to its stockholders after the end of each fiscal year an
annual report (including a consolidated balance sheet and statements of
income, cash flow and stockholders' equity of the
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Company and its subsidiaries certified by independent public accounts);
(g) During a period of five years from the Effective
Date, to furnish to you copies of all reports or other communications
(financial or other) furnished to its stockholders, and deliver to you
(i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or the Nasdaq
National Market or any national securities exchange on which any class
of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request in connection
with your obligations hereunder;
(h) To apply the net proceeds from the sale of the
Securities in the manner set forth in the Prospectus under the caption
"Use of Proceeds";
(i) That it will not, and will cause its subsidiaries,
officers, directors, employees, agents and affiliates not to, take,
directly or indirectly, any action designed to cause or result in, or
that might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities;
(j) That prior to the Time of Delivery there will not be
any change in the capital stock (other than shares issued pursuant to
the Company's Amended and Restated 1996 Stock Option Plan) or material
change in the short-term debt or long-term debt of the Company or any
of its subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company or any of its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus;
(k) That it will not, during the period of 120 days after
the date hereof (other than pursuant to this Agreement), offer, sell,
contract to sell or otherwise dispose of any capital stock of the
Company (or securities convertible into, or exchangeable for, capital
stock of the Company), directly or indirectly, without the prior
written consent of Xxxxxxxx & Co. Inc., except for grants of stock
options under the Company's Amended and Restated 1996 Stock Option
Plan; and
(l) That it has caused the Securities to be included for
quotation on the Nasdaq National Market as of the Effective Date.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid: (i) the fees, disbursements and
expenses of counsel and accountants for the Company and the Selling
Stockholders, and all other expenses, in connection with the preparation,
printing and filing of the Registration Statement and the Prospectus and
amendments and supplements thereto and the furnishing of copies thereof,
including charges for
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mailing, air freight and delivery and counting and packaging thereof and of any
Preliminary Prospectus and related offering documents to the Underwriters and
dealers; (ii) the cost of printing this Agreement, the Agreement Among
Underwriters, the Selling Agreement, communications with the Underwriters and
selling group and the Preliminary and Supplemental Blue Sky Memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under securities laws as provided in Section
5(b) hereof, including filing and registration fees and the fees, disbursements
and expenses for counsel for the Underwriters in connection with such
qualification and in connection with Blue Sky surveys or similar advice with
respect to sales; (iv) the filing fees incident to securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (v) all fees and expenses in connection with quotation of the
Securities on the Nasdaq National Market; and (vi) all other costs and expenses
incident to the performance of their obligations hereunder which are not
otherwise specifically provided for in this Section 6, including the fees of the
Company's Transfer Agent and Registrar, the cost of any stock issue or transfer
taxes on sale of the Securities to the Underwriters, the cost of the Company's
personnel and other internal costs, the cost of printing and engraving the
certificates representing the Securities and all expenses and taxes incident to
the sale and delivery of the Securities to be sold by the Company to the
Underwriters hereunder. It is understood, however, that, except as provided in
this Section, Section 8 and Section 11 hereof, the Underwriters will pay all
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company and the Selling Stockholders
herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company shall have performed all its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Registration Statement shall have become
effective, and you shall have received notice thereof not later than
10:00 p.m., New York City time, on the date of execution of this
Agreement, or at such other time as you and the Company may agree; if
required, the Prospectus shall have been filed with the Commission in
the manner and within the time period required by Rule 424(b); no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with
to your reasonable satisfaction;
(b) All corporate proceedings and related legal matters
in connection with the organization of the Company and the
registration, authorization, issue, sale and delivery of the Securities
shall have been reasonably satisfactory to Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P. ("Akin Gump"), counsel to the Underwriters, and Akin Gump
shall have been timely furnished with such papers and information as
they may reasonably have
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requested to enable them to pass upon the matters referred to in this
subsection;
(c) You shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact or omits to state a fact
which in your judgment is in either case material and in the case of an
omission is required to be stated therein or is necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(d) Xxxxxx & Xxxxxxx, L.L.P., counsel to the Company and
the Selling Stockholders, shall have furnished to you their written
opinion, dated the Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) The Company has been duly and validly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, and is
qualified to do business and is in good standing in each
jurisdiction in which, to the knowledge of such counsel, the
ownership or leasing of properties requires such qualification
or the conduct of its business requires such qualification
(except where the failure to so qualify would not have a
Material Adverse Effect); and the Company has all necessary
corporate power and all material governmental authorizations,
permits and approvals required to own, lease and operate its
properties and conduct its business as described in the
Prospectus;
(ii) Each of the Company's subsidiaries has been
duly and validly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, and is qualified to do
business and is in good standing in each jurisdiction in
which, to the knowledge of such counsel, the ownership or
leasing of properties requires such qualification or the
conduct of its business requires such qualification (except
where the failure to so qualify would not have a Material
Adverse Effect); and each such subsidiary has all necessary
corporate power and all material governmental authorizations,
permits and approvals required to own, lease and operate its
properties and to conduct its business as described in the
Prospectus;
(iii) All the outstanding shares of capital stock
of each of the Company's subsidiaries have been duly
authorized and are validly issued and outstanding, are fully
paid and non-assessable and, except as otherwise set forth in
the Prospectus, are owned by the Company of record and to the
best knowledge of such counsel, (A) beneficially and (B) free
and clear of all liens, encumbrances, equities, security
interests or claims of any nature whatsoever except to the
extent specifically stated in the Prospectus; and neither the
Company nor any of its subsidiaries has granted any
outstanding options, warrants or commitments with respect to
any shares of its capital stock, whether issued or unissued,
except as otherwise described in the Prospectus;
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(iv) The Company has an authorized capitalization
as set forth in the Registration Statement and all the issued
shares of capital stock of the Company (including the
Securities to be sold by the Selling Stockholders) have been
duly and validly authorized and issued and are fully paid and
non-assessable; are free of any preemptive rights, and were
issued and sold in compliance with all applicable Federal and
state securities laws; except as described in the Prospectus,
to the knowledge of such counsel, there are no outstanding
options, warrants or other rights calling for the issuance of,
and there are no commitments, plans or arrangements to issue,
any shares of capital stock of the Company; the Securities
being sold by the Company have been duly and validly
authorized and, when duly countersigned by the Company's
Transfer Agent and Registrar and issued, delivered and paid
for in accordance with the provisions of the Registration
Statement and this Agreement, will be duly and validly issued,
fully paid and non-assessable; the Securities conform to the
description thereof in the Prospectus; the Securities have
been duly authorized for quotation on the Nasdaq National
Market, as of the Effective Date; and the certificates for the
Securities as are in valid and sufficient form;
(v) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries or
any of their respective officers or directors is a party or of
which any property of the Company or any of its subsidiaries
is the subject which, if resolved against the Company or any
of its subsidiaries or any of their respective officers or
directors, individually, or to the extent involving related
claims or issues, in the aggregate, is of a character required
to be disclosed in the Prospectus which has not been properly
disclosed therein;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid
and binding agreement of the Company enforceable in accordance
with its terms, except as enforceability of the same may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
and except as enforceability of those provisions relating to
indemnity may be limited by the Federal securities laws,
principles of public policy and general principles of equity;
(vii) The Company has full corporate power and
authority to execute, deliver and perform this Agreement, and
the execution, delivery and performance of this Agreement, the
consummation of the transactions herein contemplated and the
issue and sale of the Securities and the compliance by the
Company with all the provisions of this Agreement will not
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge, claim or encumbrance upon, any
of the property or assets of the Company or any of its
subsidiaries pursuant to, the terms of any indenture,
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mortgage, deed of trust, loan agreement or other agreement or
instrument filed as an exhibit to the Registration Statement
to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or the Bylaws, in each case as amended, of the
Company or any of its subsidiaries, or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or any
regulatory authority or other governmental body is required
for the issue and sale of the Securities or the consummation
of the other transactions contemplated by this Agreement,
except such as have been obtained under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters,
provided that such counsel shall not be required to express
any opinion as to the requirements of state securities or blue
sky laws;
(ix) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is currently
in violation of its Certificate of Incorporation or Bylaws (or
similar constituent documents) or in default under, any
indenture, mortgage, deed of trust, lease, bank loan or credit
agreement or any other material agreement or instrument of
which such counsel has knowledge to which the Company or any
of its subsidiaries is a party or by which any of them or any
of their property may be bound or affected (in any respect
that is material in light of the financial condition of the
Company and its subsidiaries, taken as a whole);
(x) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any Securities pursuant to the
Company's Certificate of Incorporation or Bylaws, in each case
as amended to the date hereof, or any agreement or other
instrument known to such counsel; and no holders of securities
of the Company have rights to the registration thereof under
the Registration Statement or, if any such holders have such
rights, such holders have waived such rights;
(xi) To the best of such counsel's knowledge,
there are no contracts or other documents required to be
summarized or disclosed in the Prospectus or to be so filed as
an exhibit to the Registration Statement, which have not been
so summarized or disclosed, or so filed;
(xii) The statements under the captions "Risk
Factors -- Certain Tax
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Matters Related to Drivers," "Risk Factors -- Anti-Takeover
Provisions," "Risk Factors -- Shares Eligible for Future Sale;
Possible Adverse Effect on Future Market Prices," "Business
--Regulation," "Business -- Intellectual Property," "Business
-- Legal Proceedings" and "Description of Capital Stock" in
the Prospectus and Items 14 and 15 of Part II of the
Registration Statement insofar as such statements constitute a
summary of legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents and proceedings;
(xiii) Nothing has come to such counsel's attention
to give such counsel reason to believe that any of the
representations and warranties of the Company contained in
this Agreement or in any certificate or document contemplated
under this Agreement to be delivered are not true or correct
or that any of the covenants and agreements herein contained
to be performed on the part of the Company or any of the
conditions herein contained, or set forth in the Registration
Statement and the Prospectus, to be fulfilled or complied with
by the Company have not been or will not be duly and timely
performed, fulfilled or complied with;
(xiv) Neither the Company nor any of its
subsidiaries is an "investment company" or a person
"controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended;
(xv) This Agreement has been duly authorized,
executed and delivered by or on behalf of each of the Selling
Stockholders and is a legal, valid and binding agreement of
each of the Selling Stockholders enforceable in accordance
with its terms, except as enforceability of the same may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
and except as enforceability of those provisions relating to
indemnity may be limited by the Federal securities laws,
principles of public policy and general principles of equity;
(xvi) Each Power of Attorney and Custody Agreement
has been duly executed and delivered by the respective Selling
Stockholders named therein and constitutes a legal, valid and
binding agreement of such Selling Stockholder enforceable in
accordance with its terms, except as enforceability of the
same may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and except as enforceability of those provisions
relating to indemnity may be limited by the Federal securities
laws and principles of public policy;
(xvii) The execution, delivery and performance of
this Agreement and each Power of Attorney and Custody
Agreement and the sale and delivery of the Securities and the
consummation of the transactions contemplated in this
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Agreement and compliance by the Selling Stockholders with its
obligations under this Agreement will not constitute a default
under, or result in the creation or imposition of any lien,
charge, claim, tax or encumbrance upon the Securities or any
property or assets of the Selling Stockholders pursuant to the
terms of any indenture, mortgage, deed of trust, loan or
material agreement or instrument known to such counsel to
which any Selling Stockholder is a party or by which it may be
bound, or to which any of the property or assets of the
Selling Stockholders is subject, nor will such action result
in any violation of the provisions of the charter or bylaws of
the Selling Stockholders, if applicable, or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over such
Selling Stockholder or any of its properties;
(xviii) To the best of such counsel's knowledge,
each Selling Stockholder has valid and marketable title to the
Securities to be sold by such Selling Stockholder pursuant to
this Agreement, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind,
and has full right, power and authority to sell, transfer and
deliver such Securities pursuant to this Agreement. Upon
purchase of the Securities to be sold by the Selling
Stockholders as provided in this Agreement, each of the
Underwriters (assuming that it is a bona fide purchaser within
the meaning of the Uniform Commercial Code) will acquire good
and marketable title to such securities, free and clear of any
pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind; and
(xix) The Registration Statement has become
effective under the Act, the Prospectus has been filed in
accordance with Rule 424(b) of the rules and regulations of
the Commission under the Act, including the applicable time
periods set forth therein, or such filing is not required and,
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
are pending or threatened under the Act, and the Registration
Statement, the Prospectus and each amendment or supplement
thereto, as of their respective effective or issue dates,
comply as to form in all material respects with the applicable
requirements of the Act and the rules and regulations
thereunder; it being understood that such counsel need express
no opinion as to the financial statements and schedules or
other financial data contained in the Registration Statement
or the Prospectus;
Such counsel shall also state that nothing has come to such
counsel's attention that would lead such counsel to believe that the
Registration Statement, the Prospectus or any amendment thereto (other
than the financial statements and schedules or other financial data
contained in the Registration Statement, as to which such counsel need
express no opinion) at the time such Registration Statement or any
amendment thereto
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become effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto (other than the
financial statements and schedules or other financial data contained in
the Prospectus, as to which such counsel need express no opinion) at
the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued, or at the Time of Delivery,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
In rendering their opinions set forth in Section 7(d) above,
such counsel may rely, to the extent deemed advisable by such counsel,
(a) as to factual matters, upon certificates of public officials and
officers of the Company and the Selling Stockholders, and (b) as to the
laws of any jurisdiction other than the United States and jurisdictions
in which they are admitted, on opinions of counsel (provided, however,
that you shall have received a copy of each of such opinions which
shall be dated the Time of Delivery, addressed to you or otherwise
authorizing you to rely thereon, and Xxxxxx & Xxxxxxx, L.L.P. in its
opinion to you delivered pursuant to this subsection, shall state that
such counsel are satisfactory to them and Xxxxxx & Xxxxxxx, L.L.P. has
no reason to believe that the Underwriters and they are not justified
to so rely);
In addition, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States of
America and the corporate laws of the States of Delaware and Texas and
that such counsel is not admitted in the State of Delaware. The
foregoing opinion may be qualified by a statement to the effect that
such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or Prospectus, except to the extent stated in
(xix) above.
(e) Akin Gump, counsel to the Underwriters, shall have
furnished to you their written opinion or opinions, dated the Time of
Delivery, in form and substance satisfactory to you, with respect to
the incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as you
may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(f) At the time this Agreement is executed and also at
the Time of Delivery, Deloitte & Touche, L.L.P. shall have furnished to
you a letter or letters, dated the date of this Agreement and the Time
of Delivery, in form and substance satisfactory to you, to the effect,
that:
(i) They are independent accountants with
respect to the Company and its subsidiaries within the meaning
of the Act and the applicable published rules and regulations
thereunder;
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(ii) In their opinion the consolidated
financial statements of the Company and its subsidiaries
(including the related schedules and notes) included in the
Registration Statement and Prospectus and covered by their
reports included therein comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder;
(iii) On the basis of specified procedures as of
a specified date not more than three days prior to the date of
their letter (which procedures do not constitute an
examination made in accordance with generally accepted
auditing standards), consisting of a reading of the latest
available unaudited interim consolidated financial statements
of the Company and its subsidiaries, a reading of the latest
available minutes of any meeting of the Board of Directors and
stockholders of the Company and its subsidiaries since the
date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries who have responsibility for financial and
accounting matters, and such other procedures or inquiries as
are specified in such letter, nothing came to their attention
that caused them to believe that:
(A) The unaudited consolidated
condensed financial statements of the Company and
its subsidiaries included in the Prospectus do not
comply in form in all material respects with the
applicable accounting requirements of the Act and
the rules and regulations promulgated thereunder or
are not presented in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
consolidated financial statements included in the
Registration Statement and the Prospectus;
(B) as of a specified date not more
than three days prior to the date of their letter,
there was any change in the capital stock, or
increases in the long-term debt or short-term debt
of the Company and its subsidiaries on a
consolidated basis, or any decrease in total assets,
total current assets or stockholders' equity or
other items specified by the Representatives, of the
Company and its subsidiaries on a consolidated
basis, each as compared with the amounts shown on
the September 30, 1997 Consolidated Balance Sheet
included in the Registration Statement and the
Prospectus, except in each case for changes,
increases or decreases which the Prospectus
discloses have occurred or may occur; and
(C) for the period from September 30,
1997 to a specified date not more than three days
prior to the date of such letter, there was any
decrease, as compared with the corresponding period
of the preceding
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fiscal year, in the following consolidated amounts:
gross margin, earnings (loss) from operations,
earnings (loss) before income taxes, net earnings
(loss) or earnings (loss) per common and common
equivalent share of the Company and its
subsidiaries, except in all instances for decreases
which the Registration Statement discloses have
occurred or may occur;
(D) in addition to the examination
referred to in their reports included in the
Registration Statement and the Prospectus and the
limited procedures referred to in clause (iii)
above, they have carried out certain specified
procedures, not constituting an audit, with respect
to certain amounts, percentages and financial
information specified by the Representatives, which
are derived from the general accounting records of
the Company and its subsidiaries which appear in the
Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement, and have
compared such amounts and financial information with
the accounting records of the Company and its
subsidiaries, and have found them to be in agreement
and have proved the mathematical accuracy of certain
specified percentages; and
(E) on the basis of a reading of the
pro forma consolidated financial statements included
in the Registration Statement and the Prospectus,
carrying out certain specified procedures that would
not necessarily reveal matters of significance with
respect to the comments set forth in this clause
(v), inquiries of certain officials of the Company
and its consolidated subsidiaries who have
responsibility for financial and accounting matters
and proving the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the pro forma consolidated
financial statements, nothing came to their
attention that caused them to believe that the pro
forma consolidated financial statements do not
comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments
have not been properly applied to the historical
amounts in the compilation of such statements.
(g) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree other than as
set forth or contemplated in the Prospectus; and since the respective
dates as of which information is given in the Prospectus, there shall
not have been any change in the capital stock (other than shares issued
pursuant to the Company's Amended and Restated 1996 Stock Option Plan)
or short-term debt or long-term debt of the Company or any of its
subsidiaries nor any change or any development involving a prospective
material adverse change, in or
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affecting the general affairs, management, consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case is in your
judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus;
(h) Between the date hereof and the Time of Delivery
there shall have been no declaration of war by the Government of the
United States; at the Time of Delivery there shall not have occurred
any material adverse change in the financial or securities markets in
the United States or in political, financial or economic conditions in
the United States or any outbreak or material escalation of hostilities
or other calamity or crisis, the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the
Securities or to enforce contracts for the resale of Securities and no
event shall have occurred resulting in (i) trading in securities
generally on the New York Stock Exchange or in the Common Stock on the
principal securities exchange or market in which the Common Stock is
listed or quoted being suspended or limited or minimum or maximum
prices being generally established on such exchange or market, or (ii)
additional material governmental restrictions, not in force on the date
of this Agreement, being imposed upon trading in securities generally
by the New York Stock Exchange or in the Common Stock on the principal
securities exchange or market in which the Common Stock is listed or
quoted or by order of the Commission or any court or other governmental
authority, or (iii) a general banking moratorium being declared by
either Federal, New York or Texas authorities;
(i) The Company shall have furnished or caused to be
furnished to you at the Time of Delivery certificates signed by the
chief executive officer and the chief financial officer, on behalf of
the Company, satisfactory to you as to such matters as you may
reasonably request and as to (i) the accuracy of the Company's
representations and warranties herein at and as of the Time of
Delivery; (ii) the performance by the Company of all its obligations
hereunder to be performed at or prior to the Time of Delivery; (iii)
the fact that they have carefully examined the Registration Statement
and Prospectus and, (A) as of the Effective Date, the statements
contained in the Registration Statement and the Prospectus were true
and correct and neither the Registration Statement nor the Prospectus
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) since
the Effective Date, no event has occurred that is required by the Act
or the rules and regulations of the Commission thereunder to be set
forth in an amendment of, or a supplement to, the Prospectus that has
not been set forth in such an amendment or supplement; and (iv) the
matters set forth in subsections (a) and (g) of this Section 7;
(j) A certificate, dated the Time of Delivery and
addressed to you, signed by or on behalf of each of the Selling
Stockholders to the effect that the representations and warranties of
such Selling Stockholder in this Agreement are true and correct, as if
made
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at and as of the Time of Delivery, and such Selling Stockholder has
complied with all the agreements and satisfied all the conditions on
his part to be performed or satisfied prior to the Time of Delivery;
(k) Each director and executive officer of the Company
and Selling Stockholder shall have delivered to you an agreement not to
offer, sell, contract to sell or otherwise dispose of any shares of
capital stock of the Company (or securities convertible into, or
exchangeable for, capital stock of the Company), directly or
indirectly, for a period of 120 days after the date of this Agreement,
without the prior written consent of Xxxxxxxx & Co. Inc.; and
(l) The Company shall have delivered to you evidence that
the Securities have been authorized for quotation on the Nasdaq
National Market as of the Effective Date.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or in any Blue
Sky application or other document executed by the Company specifically
for that purpose or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to qualify
any or all the Securities under the security laws thereof or filed with
the Commission or any securities association or securities exchange
(each, an "Application"), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements made therein not misleading, or (ii) any untrue
statement or alleged untrue statement made by the Company in Section
1(a) of this Agreement, or (iii) the employment by the Company of any
device, scheme or artifice to defraud, or the engaging by the Company
in any act, practice or course of business which operates or would
operate as a fraud or deceit, or any conspiracy with respect thereto,
in which the Company shall participate, in connection with the issuance
and sale of any of the Securities, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating, preparing to defend, defending or
appearing as a third-party witness in connection with any such action
or claim; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission relating to an
Underwriter made in any Preliminary Prospectus, the Registration
Statement, the Prospectus or such amendment or supplement or any
Application in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for
use therein and provided, further, that the indemnity agreement
contained in this Section 8(a) with respect to any Preliminary
Prospectus shall not inure
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to the benefit of any Underwriter (or any persons controlling such
Underwriter) on account of any losses, claims, damages, liability or
litigation arising from the sale of Securities to any person, if such
Underwriter fails to send or give a copy of the Prospectus, as the same
may be then supplemented or amended, to such person, within the time
required by the Act and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained
in such Preliminary Prospectus was corrected in the Prospectus, unless
such failure is the result of noncompliance by the Company with Section
5(c) hereof.
(b) In addition to any obligations of the Company under
Section 8(a), the Company agrees that it shall perform its
indemnification obligations under Section 8(a) (as modified by the last
paragraph of this Section 8(b)) with respect to counsel fees and
expenses and other expenses reasonably incurred by making payments to
the Underwriter within 45 days of receipt of a statement in the amount
of the statements of the Underwriter's counsel or other statements
which shall be forwarded by the Underwriter, and that they shall make
such payments notwithstanding the absence of a judicial determination
as to the propriety and enforceability of the 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 and a
court orders return of such payments.
The indemnity agreement in Section 8(a) 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 or the Exchange Act.
(c) Each Selling Stockholder will indemnify and hold
harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or any Application, or the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements made therein not misleading, or
(ii) any untrue statement or alleged untrue statement made by the
Selling Stockholder in Section 1(b) of this Agreement, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating,
preparing to defend, defending or appearing as a third-party witness in
connection with any such action or claim; provided, however, that the
Selling Stockholders shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission relating to an Underwriter made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or such
amendment or supplement or any Application in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter
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through you expressly for use therein; provided, further, that in no
event shall the liability of any Selling Stockholder under this Section
8(c) exceed the proceeds received by such Selling Stockholder from the
sale of Securities pursuant to this Agreement and provided, further,
that the indemnity agreement contained in this Section 8(a) with
respect to any Preliminary Prospectus shall not inure to the benefit of
any Underwriter (or any persons controlling such Underwriter) on
account of any losses, claims, damages, liability or litigation arising
from the sale of Securities to any person, if such Underwriter fails to
send or give a copy of the Prospectus, as the same may be then
supplemented or amended, to such person, within the time required by
the Act and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus, unless such
failure is the result of noncompliance by the Company with Section 5(c)
hereof
(d) In addition to any obligations of each of the Selling
Stockholders under Section 8(c), each of the Selling Stockholders
agrees that it shall perform its indemnification obligations under
Section 8(c) (as modified by the last paragraph of this Section 8(d))
with respect to counsel fees and expenses and other expenses reasonably
incurred by making payments to the Underwriter within 45 days of
receipt of a statement in the amount of the statements of the
Underwriter's counsel or other statements which shall be forwarded by
the Underwriter, and that they shall make such payments notwithstanding
the absence of a judicial determination as to the propriety and
enforceability of the 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 and a court orders return of such
payments.
The indemnity agreement in Section 8(c) shall be in addition
to any liability which the Selling Stockholders 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 or the
Exchange Act.
(e) Each Underwriter shall indemnify and hold harmless
the Company and each of its officers, employees and directors and the
Selling Stockholders against any losses, claims, damages or liabilities
to which the Company or any such officer, employee or director or any
of the Selling Stockholders may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any Application,
or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement, the Prospectus
or such amendment or supplement or any Application in reliance upon and
in conformity with written
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information furnished to the Company by such Underwriter relating to
such Underwriter through you expressly for use therein, and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim.
The indemnity agreement in this Section 8(e) shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act or the Exchange
Act.
(f) Promptly after receipt by an indemnified party under
Section 8(a), 8(c) or 8(e) of notice of the commencement of any action
(including any governmental investigation), such indemnified party
shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party under Section 8(a), 8(c) or 8(e)
except to the extent it was unaware of such action and has been
prejudiced in any material respect by such failure or from any
liability which it may have to any indemnified party otherwise than
under such Section 8(a), 8(c) or 8(e). In case any such action shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. If,
however, (i) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying
party or (ii) an indemnified party shall have reasonably concluded that
representation of such indemnified party and the indemnifying party by
the same counsel would be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests
between them and the indemnified party so notifies the indemnifying
party, then the indemnified party shall be entitled to employ counsel
different from counsel for the indemnifying party at the expense of the
indemnifying party and the indemnifying party shall not have the right
to assume the defense of such indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to local counsel) for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same set of
allegations or circumstances. The counsel with respect to which fees
and expenses shall be so reimbursed shall be designated in writing by
Xxxxxxxx & Co. Inc. in the case of parties indemnified pursuant to
Sections 8(a) and 8(c) and by the Company and the Selling Stockholders
in the case of parties indemnified pursuant to Section 8(e).
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If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Sections 8(b) or 8(d), the
indemnifying party agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. 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 indemnity 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 proceeding.
(g) In order to provide for just and equitable
contribution under the Act in any case in which (i) any Underwriter (or
any person who controls any Underwriter within the meaning of the Act
or the Exchange Act) makes claim for indemnification pursuant to
Section 8(a) or 8(c) hereof, but 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 Section 8(a) or 8(c) provides for
indemnification in such case or (ii) contribution under the Act may be
required on the part of any Underwriter or any such controlling person
in circumstances for which indemnification is provided under Section
8(e), then, and in each such case, each indemnifying party shall
contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject as an indemnifying party hereunder (after
contribution from others) in such proportion as is appropriate to
reflect the relative benefits received by the Company and each of the
Selling Stockholders on the one hand and the Underwriters on the other
from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under Section 8(f) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company or any of the Selling Stockholders on
the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses)
received by the Company or any of the Selling Stockholders bear to the
total underwriting discounts and commissions received by the
Underwriters with respect to the Securities purchased under this
Agreement, in each case as set forth in the table on the cover page of
the Prospectus. The
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relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or any of the Selling Stockholders
on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(g) 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 Section 8(g). 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
Section 8(g) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8(g), (i) no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed
to the public were offered to 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 and (ii) no Selling Stockholder shall be required to
contribute any amount in excess of the proceeds received by such
Selling Stockholder from the sale of Securities pursuant to this
Agreement. 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 was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this Section 8(g)
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(h) Promptly after receipt by any party to this Agreement
of notice of the commencement of any action, suit or proceeding, such
party will, if a claim for contribution in respect thereof is to be
made against another party (the "contributing party"), notify the
contributing party of the commencement thereof; but the omission to so
notify the contributing party will not relieve it from any liability
which it may have to any other party for contribution under the Act
except to the extent it was unaware of such action and has been
prejudiced in any material respect by such failure or from any
liability which it may have to any other party other than for
contribution under the Act. In case any such action, suit or proceeding
is brought against any party, and such party notifies a contributing
party of the commencement thereof, the contributing party will be
entitled to participate therein with the notifying party and any other
contributing party similarly notified.
9. (a) If any Underwriter shall default in its
obligation to purchase the Firm Securities which it has agreed to
purchase hereunder, you may in your discretion arrange for you or
another party or other parties to purchase such Firm Securities on the
terms contained herein. If the aggregate number of Firm Securities as
to which
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Underwriters default is more than one-eleventh of the aggregate number
of all the Firm Securities and within 36 hours after such default by
any Underwriter you do not arrange for the purchase of such Firm
Securities, then the Company shall be entitled to a further period of
36 hours within which to procure another party or other parties
satisfactory to you to purchase such Firm Securities on such terms. In
the event that, within the respective prescribed periods, you notify
the Company that you have so arranged for the purchase of such Firm
Securities, or the Company notifies you that it has so arranged for the
purchase of such Firm Securities, you or the Company shall have the
right to postpone the Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus or in any
other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the Prospectus
which in you opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Firm
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Firm Securities of such defaulting Underwriter or
Underwriters by you or the Company or both as provided in subsection
(a) above, the aggregate number of such Firm Securities which remain
unpurchased does not exceed one-eleventh of the aggregate number of all
the Firm Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of the Firm
Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the number of Firm Securities which such
Underwriter agreed to purchase hereunder) of the Firm Securities of
such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Firm Securities of a defaulting Underwriter or
Underwriters by you or the Company as provided in subsection (a) above,
the aggregate number of such Firm Securities which remain unpurchased
exceeds one-eleventh of the aggregate number of all the Firm
Securities, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Firm Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity agreement in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall
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remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, or any Selling Stockholder, or
any officer or director or controlling person of any Selling Stockholder and
shall survive delivery of and payment for the Securities.
11. This Agreement shall become effective (a) if the Registration
Statement has not heretofore become effective, at the earlier of 12:00 Noon, New
York City time, on the first full business day after the Registration Statement
becomes effective, or at such time after the Registration Statement becomes
effective as you may authorize the Sale of the Securities to the public by
Underwriters or other securities dealers, or (b) if the Registration Statement
has heretofore become effective, at the earlier of 24 hours after the filing of
the Prospectus with the Commission or at such time as you may authorize the sale
of the Securities to the public by Underwriters or securities dealers, unless,
prior to any such time you shall have received notice from the Company that it
elects that this Agreement shall not become effective, or you, or through you
such of the Underwriters as have agreed to purchase in the aggregate fifty
percent or more of the Firm Securities hereunder, shall have given notice to the
Company that you or such Underwriters elect that this Agreement shall not become
effective; provided, however, that the provisions of this Section and Section 6
and Section 8 shall at all times be effective.
If this Agreement shall be terminated pursuant to Section 9 hereof, or
if this Agreement, by election of you or the Underwriters, shall not become
effective pursuant to the provisions of this Section, the Company shall not then
be under any liability to any Underwriter except as provided in Section 6 and
Section 8 hereof, but if this Agreement becomes effective and is not so
terminated but the securities are not delivered by or on behalf of the Company
as provided herein because the Company has been unable for any reason beyond its
control and not due to any default by it to comply with the terms and conditions
hereof, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities, but the
Company shall then be under no further liability to any Underwriter except as
provided in Section 6 and Section 8 hereof.
12. The statements set forth in the last paragraph on the front
cover page of the Prospectus, the paragraph on the inside front cover of the
Prospectus containing stabilization language, the table under the caption
"Underwriting" in the Prospectus and the third and eighth paragraphs under the
caption "Underwriting" in the Prospectus constitute the only information
furnished by any Underwriter made or given by you jointly or by Xxxxxxxx & Co.
Inc. on behalf of you as the Representatives.
13. In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxxx & Co. Inc. on behalf of you as the
Representatives.
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All statements, requests, notices and agreements hereunder, unless
otherwise specified in this Agreement, shall be in writing and, if to the
Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission (with confirmation of receipt) to you as the Representatives in
care of Xxxxxxxx & Co. Inc., Equitable Center, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Syndicate Department; if to the Company, shall be
delivered or sent by mail, telex or facsimile transmission (with confirmation of
receipt) to the address of the Company set forth in the Registration Statement,
Attention: Xxxxxx X. Xxxxx; and if to any Selling Stockholder, shall be
delivered or sent by mail, telex or facsimile transmission (with confirmation of
receipt) to the address of the Company set forth in the Registration Statement,
Attention: Xxxxxx X. Xxxxx, as Attorney-in-Fact; provided, however, that any
notice to any Underwriter pursuant to Section 8(f) hereof shall be delivered or
sent by mail, telex or facsimile transmission (with confirmation of receipt) to
such Underwriter at its principal address, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Selling Stockholders and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and the Selling Stockholders and each person who controls the
Company, any Underwriter or any Selling Stockholder, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
16. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.
17. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters', the
Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement Among Underwriters, manually or
facsimile executed counterparts of which, to the extent practicable and upon
request, shall be submitted to the Company for examination, but without warranty
on you part as to the authority of the signers thereof.
Very truly yours,
DYNAMEX INC.
By:
-------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SELLING STOCKHOLDERS
By:
-------------------------------------------
As Attorney-in-Fact for each of the
several Selling Stockholders named in
Schedule II
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Accepted as of the date hereof:
XXXXXXXX & CO. INC.
XXXXXXX XXXXX & COMPANY, L.L.C.
XXXX XXXXXXXXX XXXXXXXX & CO.
Representatives of the several Underwriters
By: XXXXXXXX & CO. INC.
By:
--------------------------------
Name:
---------------------
Title:
--------------------
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SCHEDULE I
Underwriter Number of Firm Securities
----------- -------------------------
Xxxxxxxx & Co. Inc. ...................................
Xxxxxxx Xxxxx & Company, L.L.C. .......................
Xxxx Xxxxxxxxx Xxxxxxxx & Co. .........................
Total .................................................
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SCHEDULE II
Maximum Number of Option
Number of Firm Securities to Maximum Number of Option
Name of Selling Stockholder be Sold Securities to be Sold by
Name of Selling Stockholder by Selling Stockholder Selling Stockholder
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