7,286,000 Shares
Xxxxx & Xxxxxx Manufacturing Company
Class A Common Stock
UNDERWRITING AGREEMENT
----------------------
October __, 1996
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
CS First Boston Corporation
As representatives of the
several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxx & Xxxxxx Manufacturing Company, a Delaware corporation (the
"Company"), and the stockholders of the Company named in Schedule II hereto (the
"Selling Stockholders"), propose to sell an aggregate of 7,286,000 shares of
Class A Common Stock par value $1.00 per share of the Company (the "Firm
Shares") to the several underwriters named in Schedule I hereto (the
"Underwriters"). The Firm Shares consist of 4,000,000 shares to be issued and
sold by the Company and 3,286,000 outstanding shares to be sold by the Selling
Stockholders. The Company and one of the Selling Stockholders, Finmeccanica
S.p.A. ("Finmeccanica"), also propose to sell not more than an aggregate of
1,092,900 additional shares of Class A Common Stock par value $1.00 per share of
the Company (the "Additional Shares"), if requested by the Underwriters as
provided in Section 2 hereof. The Additional Shares consist of 772,900 shares
to be issued and sold by the Company and 320,000 outstanding shares to be sold
by Finmeccanica. The shares of common stock of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter
collectively referred to as the "Common Stock." The Firm Shares and Additional
Shares are hereinafter collectively referred to as the "Shares." The Company
and the Selling Stockholders are hereinafter collectively referred to as the
"Sellers."
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1. Registration Statement and Prospectus. The Company has prepared and
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filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"Act"), a registration statement on Form S-1 (No. 333-17051) including a
prospectus relating to the Shares, which may be amended. The registration
statement as amended at the time when it becomes effective, 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 information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or Rule 434 under the Act, is hereinafter
referred to as the Registration Statement; and the prospectus (including any
prospectus subject to completion taken together with any term sheet meeting the
requirements of Rule 434(b) or Rule 434(a) under the Act) in the form first used
to confirm sales of Shares is hereinafter referred as the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations
-------------------------------
and warranties contained in this Agreement, and subject to its terms and
conditions, (i) the Company agrees to issue and sell 4,000,000 Firm Shares, (ii)
each Selling Stockholder agrees, severally and not jointly, to sell to the
several Underwriters the number of Firm Shares equal to the number of Firm
Shares set forth opposite such Selling Stockholder's name on Schedule II hereto
and (iii) each Underwriter agrees, severally and not jointly, to purchase from
each Seller at a price per Share of $_____ (the "Purchase Price") the number of
Firm Shares (subject to such adjustments to eliminate fractional shares as you
may determine) which bears the same proportion to the total number of Firm
Shares to be sold by such Seller as the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto bears to the total number of
Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) the Company and
Finmeccanica, severally and not jointly, agree to sell at the Purchase Price up
to the number of Additional Shares obtained by multiplying the aggregate number
of Additional Shares to be sold on any Option Closing Date (as defined herein)
times a fraction, the numerator of which is the aggregate number of Additional
Shares set forth opposite such Seller's name on Schedule II and the denominator
of which is 1,092,900 and (ii) the Underwriters shall have the right to
purchase, severally and not jointly, up to an aggregate of 1,092,900 Additional
Shares from the Company and Finmeccanica at the Purchase Price. Additional
Shares may be purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Shares. The Underwriters may
exercise their right to purchase Additional Shares in whole or in part from time
to time by giving written notice thereof to the Company and the Attorney-in-Fact
(as defined herein) within 30 days after the date of this Agreement. You shall
give any such notice on behalf of the Underwriters and such notice shall specify
the aggregate number of Additional Shares to be purchased pursuant to such
exercise and the date for payment and delivery thereof. The date specified in
any such notice shall be a business day (i) no earlier than the Closing Date (as
hereinafter defined), (ii) no later than ten business days after such notice has
been given and (iii) no earlier than two business days after such notice has
been given. If any Additional Shares are to be purchased on any Option Closing
Date, each Underwriter, severally and not jointly, agrees to purchase from each
of the Company and Finmeccanica the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) which bears the
same proportion to the total number of Additional Shares to be purchased on such
Option Closing Date as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I bears to the total number of Firm Shares.
3. Terms of Public Offering. The Sellers are advised by you that the
------------------------
Underwriters propose (i) to make a public offering of their respective portions
of the Shares as
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soon after the effective date of the Registration Statement as in your judgment
is advisable and (ii) initially to offer the Shares upon the terms set forth in
the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and payment for
--------------------
the Firm Shares shall be made at 10:00 A.M., New York City time, on ________ __,
1996 (the "Closing Date") at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 or at such place as the parties hereto
agree in writing. The Closing Date and the location of delivery of and the form
of payment for the Firm Shares may be varied by agreement between you and the
Sellers.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at 10:00 A.M., New York City time,
on the date specified in the applicable exercise notice given by you pursuant to
Section 2 (an "Option Closing Date") at the offices of Xxxxxx & Xxxxxxx, 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 or at such place as the
parties hereto agree in writing. Any such Option Closing Date and the form of
payment for such Additional Shares may be varied by agreement between Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation ("DLJ") and the Company.
Certificates for the Shares shall be registered in such names and issued in
such denominations as you shall request in writing not later than two full
business days prior to the Closing Date or an Option Closing Date, as the case
may be. Such certificates shall be made available to you for inspection not
later than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or an Option Closing Date, as the case may be. Certificates in
definitive form evidencing the Shares shall be delivered to you on the Closing
Date or an Option Closing Date, as the case may be, with any transfer taxes
thereon duly paid by the Sellers in accordance with Section 6(a), for the
respective accounts of the several Underwriters, against payment of the Purchase
Price therefor by wire transfer or certified or official bank checks payable in
Federal funds to the order of the applicable Sellers.
5. Agreements of the Company. The Company agrees with you:
-------------------------
(a) If necessary, to (i) file (A) an amendment to the Registration Statement
or (B) a post-effective amendment to the Registration Statement pursuant to Rule
430A or Rule 462(b) or (c) under the Act, in either case, as soon as practicable
after the execution and delivery of this Agreement; (ii) provide evidence
satisfactory to the Underwriters of such timely filing; and (iii) use its best
efforts to cause the Registration Statement or such post-effective amendment to
become effective at the earliest possible time.
(b) To comply fully and in a timely manner with the applicable provisions of
Rule 424, Rule 430A and Rule 462 under the Act.
(c) To advise you promptly and, if requested by you, to confirm such advice
in writing, (i) when the Registration Statement has become effective and when
any post-effective amendment to it becomes effective, (ii) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any
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stop order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, and (iv) of
the happening of any event during the period referred to in paragraph (f) below
which makes any statement of a material fact made in the Registration Statement
or the Prospectus untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Registration Statement or Prospectus (as then amended or supplemented) to
comply with the Act or any other law. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
(d) To furnish to you, without charge, three signed copies of the
Registration Statement as first filed with the Commission and each amendment to
it, including all exhibits, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the Registration Statement
as so filed and of each amendment to it, without exhibits, as you may reasonably
request.
(e) Not to file any amendment or supplement to the Registration Statement,
whether before or after the time when it becomes effective, or to make any
amendment or supplement to the Prospectus (including the issuance or filing of
any term sheet within the meaning of Rule 434) of which you shall not previously
have been advised or to which you shall reasonably object; and to prepare and
file with the Commission, promptly upon your reasonable request, any amendment
to the Registration Statement or supplement to the Prospectus (including the
issuance or filing of any term sheet within the meaning of Rule 434) which may
be necessary or advisable in connection with the distribution of the Shares by
you, and to use its best efforts to cause the same to become promptly effective.
(f) Promptly after the Registration Statement becomes effective, and from
time to time thereafter for such period as in the opinion of counsel for the
Underwriters a prospectus is required by law to be delivered in connection with
sales by an Underwriter or a dealer, to furnish to each Underwriter and dealer
as many copies of the Prospectus (and of any amendment or supplement to the
Prospectus) as such Underwriter or dealer may reasonably request.
(g) If, during the period specified in paragraph (f), any event shall occur
as a result of which, in the opinion of counsel for the Company or in the
opinion of counsel for the Underwriters it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with any law, forthwith to prepare and file, subject to the provisions of
paragraph (e) above, with the Commission an appropriate amendment or supplement
to the Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with law, and to
furnish to each
4
Underwriter and to such dealers as you shall specify, such number of copies
thereof as such Underwriter or dealers may reasonably request.
(h) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such qualification in effect so long as required
for distribution of the Shares and to file such consents to service of process
or other documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required to
register or qualify as a foreign corporation where it is not now so qualified or
to take any action that would subject it to the service of process in suits or
taxation, other than as to matters and transactions relating to the offer and
sale of the Shares, in any jurisdiction where it is not now so subject.
(i) To mail and make generally available to its stockholders as soon as
reasonably practicable an earnings statement covering a period of at least
twelve months after the effective date (as defined in Rule 158 of the Act) of
the Registration Statement (but in no event commencing later than 90 days after
such date) which shall satisfy the provisions of Section 11(a) of the Act, and
to advise you in writing when such statement has been so made available.
(j) During the period of five years after the date of this Agreement, (i) to
mail as soon as reasonably practicable after the end of each of the Company's
fiscal years to the record holders of its Class A Common Stock a financial
report of the Company and its subsidiaries on a consolidated basis (and a
similar financial report of all unconsolidated subsidiaries, if any, if required
by Rule 3-09 of Regulation S-X under the Act), all such financial reports to
include a consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
independent certified public accountants, and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a condensed
consolidated balance sheet, a condensed consolidated statement of operations and
a condensed consolidated statement of cash flows (and similar financial reports
of all unconsolidated subsidiaries, if any if required by Rule 3-09 of
Regulation S-X under the Act) as of the end of and for such period, and for the
period from the beginning of such year to the close of such quarterly period,
together with comparable information for the corresponding periods of the
preceding year.
(k) During the period referred to in paragraph (j) above, to furnish to you
as soon as available a copy of each report or other publicly available
information of the Company mailed to the holders of Class A Common Stock or
filed with the Commission and such other publicly available information
concerning the Company and its subsidiaries as you may reasonably request.
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(l) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement becomes effective or is terminated, to pay all
costs, expenses, fees and taxes incident to (i) the preparation, printing,
filing and distribution under the Act of the Registration Statement (including
financial statements and exhibits), each preliminary prospectus and all
amendments and supplements to any of them prior to or during the period
specified in paragraph (f), (ii) the printing and delivery of the Prospectus and
all amendments or supplements to it during the period specified in paragraph
(f), (iii) the printing and delivery of this Agreement, the preliminary and
final Blue Sky Memoranda and all other agreements, memoranda, correspondence and
other documents printed and delivered in connection with the offering of the
Shares (including in each case any disbursements of counsel for the Underwriters
relating to such printing and delivery), (iv) the registration with the
Commission of the Shares, (v) the registration or qualification of the Shares
for offer and sale under the securities or Blue Sky laws of the several states
and any foreign jurisdiction (including in each case fees and disbursements of
counsel for the Underwriters relating to such registration or qualification and
memoranda relating thereto), (vi) filings and clearance with the National
Association of Securities Dealers, Inc. ("NASD") in connection with the offering
of the Shares (including reasonable fees and disbursements of counsel for the
Underwriters in connection therewith), (vii) the listing of the Shares on the
New York Stock Exchange (the "NYSE"), (viii) furnishing such copies of the
Registration Statement, the preliminary prospectus, the Prospectus and all
amendments and supplements thereto as may be requested for use in connection
with the offering or sale of the Shares by the Underwriters or by dealers to
whom Shares may be sold, (ix) fees, disbursements and expenses of the Company's
counsel and accountants, (x) all expenses with respect to the Selling
Stockholders incurred in connection with the registration of the Shares, but
excluding all fees and disbursements of counsel for any of the Selling
Stockholders and any underwriting discounts and commissions and applicable
transfer taxes, if any, which shall be borne by each of the Selling Stockholders
as seller of that number of Shares set forth opposite its name on Schedule II
hereto and (xi) the performance by the Company of its other obligations under
this Agreement.
(m) To use its best efforts to maintain the inclusion of the Class A Common
Stock on the NYSE (or on a national securities exchange) for a period of five
years after the effective date of the Registration Statement.
(n) Not to issue, register for sale, offer, sell, contract to sell or
otherwise dispose of or issue any Common Stock of the Company (or any securities
convertible into or exercisable or exchangeable for such Common Stock), or grant
any options or warrants to purchase such Common Stock (other than (i) Common
Stock sold pursuant hereto, (ii) options granted, and Common Stock issued,
pursuant to the Company's 1989 Equity Incentive Plan (the "EIP"), (iii) shares
of Class A Common Stock issued upon conversion of shares of Class B Common
Stock, par value $1.00 per share (the "Class B Common Stock"), of the Company
outstanding on the date hereof, (iv) up to 50,000 shares of Class A Common Stock
issued to Xxxxx GmbH & Co. ("Xxxxx") pursuant to the Stock Purchase and Transfer
Agreement dated March 24, 1994 (the "Xxxxx Contingent Stock Right") between the
Company and Xxxxx, and (v) Common Stock issued upon exercise of any option
outstanding on the date hereof) for a period of 180 days after the date of the
Prospectus without the prior written consent of DLJ.
(o) To use its reasonable best efforts to deliver concurrently with the
execution of this Agreement an agreement (each, a "Lock-up Agreement")
substantially in the form of Annex II executed by each person listed on Annex I
hereto, pursuant to which each such person agrees, not to register for sale,
offer, sell, contract to sell or otherwise dispose of any Common Stock of the
Company (or any securities convertible into or exercisable
6
or exchangeable for such Common Stock) or grant any option or warrant to
purchase such Common Stock, for a period of 180 days after the date of the
Prospectus without the prior written consent of DLJ.
(p) Not to take, directly or indirectly, any action designed to, or that
might reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company or its subsidiaries to
facilitate the sale or resale of the Shares. Except as permitted by the Act,
the Company will not distribute any Registration Statement, preliminary
prospectus or Prospectus or other offering material in connection with the
offering and sale of the Shares.
(q) To instruct the transfer agent for the Class A Common Stock in writing
on or prior to the Closing Date (the "Instruction") not to transfer, or to
register the transfer of, any shares of Class A Common Stock held by any Sellers
or any person subject to any Lock-up Agreement for the applicable period of days
specified in Section 5(n) of this Agreement or the relevant Lock-up Agreement.
(r) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
6. Agreements of the Selling Stockholders. Each Selling Stockholder
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severally agrees with you:
(a) To pay or to cause to be paid all Federal and other taxes, if any,
payable on the transfer or sale to the Underwriters of the Shares being sold by
the Selling Stockholder; provided that, to the extent any New York State stock
transfer tax is payable in connection with such transfer or sale, DLJ agrees to
pay such tax and the Selling Stockholder agrees to reimburse DLJ for associated
carrying costs if such tax payment is not rebated on the day of payment and for
any portion of such tax payment not rebated.
(b) To deliver to the Attorney-in-Fact (as hereinafter defined) such
documentation as the Attorney-in-Fact, the Company or the Underwriters or any of
their respective counsel may reasonably request to effectuate any of the
provisions of this Agreement, the Custody Agreement (as hereinafter defined) or
the Power of Attorney, all of the foregoing in form and substance reasonably
satisfactory to the Attorney-in-Fact.
(c) In order to document the Underwriters' compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated, to deliver to the
Underwriters prior to or on the Closing Date a properly completed and executed
United States Treasury Department Form W-9 (or Form W-8 if such Selling
Stockholder is not a U.S. citizen).
(d) That the Shares represented by the certificates held in custody for such
Selling Stockholder under the Custody Agreement are subject to the interests of
the Underwriters under this Agreement, and that the arrangement made by such
Selling Stockholder for such custody, and the appointment by such Selling
Stockholder of the Attorney-in-Fact by the Power of Attorney, are to that extent
irrevocable; except as expressly provided to the contrary in this Agreement or
the Power of Attorney, the
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obligations of the Selling Stockholder hereunder shall not be terminated by
operation of law, by the merger, consolidation, reorganization, liquidation,
dissolution, bankruptcy, insolvency, death, incapacity or similar event with
respect to such Selling Stockholder or any proceeding in connection therewith,
or by the occurrence of any other event; and if such Selling Stockholder should
be merged, consolidated, reorganized, liquidated, dissolved, become bankrupt or
insolvent, die, become incapacitated or if any other event should occur or
proceeding be instituted in connection therewith, before the delivery of such
Selling Stockholder's Shares hereunder, certificates representing such Shares
shall be delivered by or on behalf of such Selling Stockholder in accordance
with the terms and conditions of this Agreement and the Custody Agreement, and
actions taken by the Attorney-in-Fact pursuant to the Power of Attorney shall be
valid as if such merger, consolidation, reorganization, liquidation,
dissolution, bankruptcy, insolvency, death, incapacity or other event had not
occurred, or such proceeding had not been instituted, regardless of whether the
Custodian (as hereinafter defined), the Attorney-in-Fact, or any of them, shall
have received notice thereof.
(e) To notify the Company and the Representatives if, at any time during the
period described in Section 5(f) hereof, such Selling Stockholder becomes aware
of any material change in the information contained in the Registration
Statement, any preliminary prospectus or the Prospectus.
(f) To take all reasonable actions in cooperation with the Company and the
Underwriters to cause the Registration Statement and each post-effective
amendment thereto to become effective at the earliest possible time; to do and
perform all things to be done and performed under this Agreement by such Selling
Stockholder prior to the Closing Date and to satisfy all conditions precedent to
the delivery of the Shares pursuant to this Agreement.
(g) Upon execution and delivery of this Agreement by or on behalf of such
Selling Stockholder by the Attorney-in-Fact, to be bound by and to perform each
of the covenants and agreements of such Selling Stockholder provided for under
this Agreement.
(h) Not to register for sale, offer, sell, contract to sell or otherwise
dispose of any Common Stock of the Company (or any securities convertible into
or exercisable or exchangeable for such Common Stock) or grant any option or
warrant to purchase such Common Stock (other than to the Underwriters pursuant
to this Agreement) for a period of 180 days after the date of the Prospectus
without the prior written consent of DLJ.
7. Representations and Warranties of the Company. The Company represents
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and warrants to each Underwriter that:
(a) The Company either (i) has filed with the Commission prior to the
effectiveness of the Registration Statement, a further amendment thereto,
including therein a final prospectus, or (ii) will file with the Commission
after the effectiveness of such Registration Statement, a final prospectus in
accordance with Rules 430A and
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424(b)(1) under the Act or (iii) will file with the Commission after the
effectiveness of such Registration Statement, a post-effective amendment thereto
in accordance with Rule 462 under the Act; the document so filed conforms, in
content and form, to the last printer's proof thereof furnished to and approved
by the Underwriters immediately prior to such filing; any required filing of the
Prospectus, or any supplement thereto, pursuant to Rule 424(b) under the Act has
been or will be made in the manner and within the time period required
thereunder; any required filing of a post-effective amendment pursuant to Rule
462 under the Act has been or will be made in the manner and within the time
period required thereunder; no stop order suspending or preventing the use of
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, has been issued and no proceedings for such purpose are, to the
knowledge of the Company, pending before or contemplated by the Commission.
(b) (i) The Registration Statement, in the form in which it became or
becomes effective, did not or will not contain and the Registration Statement,
as amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and (iii) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph (b) do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the Act, and each Registration Statement filed pursuant to Rule
462(b) under the Act, if any, complied when so filed in all material respects
with the Act; 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.
(d) The Company and each of its subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and required authority
to carry on its business as it is currently being conducted and to own, lease
and operate its properties.
(e) The Company and each of its subsidiaries is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, condition
(financial or otherwise), results of operations,
9
properties or prospects of the Company and its subsidiaries, taken as a whole
(each, a "Material Adverse Effect").
(f) All of the outstanding shares of capital stock of, or other ownership
interests in, each of the Company's subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable and, except for (i) Xxxxx &
Xxxxxx Precizika (as to the 43.2% owned by Experimental Scientific Research
Institute of Metal-Cutting Machines, Vilnius Branch, and the 4.0% owned by
Euromedika, Inc.), (ii) Automation Software Incorporated (as to the 50% interest
of Analysis & Technology, Inc.), (iii) Xxxx - Xxxxx & Xxxxxx X.X. (as to 0.2% of
its shares which are held by third parties) and (iv) Tesa France S.A. (as to
director nominee shares), are owned by the Company or a subsidiary of the
Company, free and clear of any security interest, claim, lien, encumbrance or
adverse interest of any nature, except as noted on Schedule III hereto; there
are no outstanding rights, warrants or options to acquire, or securities
convertible into or exchangeable for, any shares of capital stock or other
equity interest in any of the Company's subsidiaries.
(g) All of the outstanding shares of capital stock of the Company (including
the Shares to be sold by the Selling Stockholders) have been duly authorized and
validly issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights.
(h) The Shares to be issued and sold by the Company hereunder have been duly
authorized and, when issued and delivered to the Underwriters against payment
therefor as provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights that have not been waived on or prior to the date
hereof.
(i) The Company has authorized capital stock as set forth in the Prospectus
under "Capitalization." The authorized capital stock of the Company, including
the Class A Common Stock, conforms as to legal matters to the description
thereof contained in the Prospectus.
(j) Neither the Company nor any of its subsidiaries is (i) in violation of
its respective charter or by-laws, (ii) in default in any material respect in
the performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any other agreement,
indenture or instrument material to the conduct of the business of the Company
and its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound or (iii) except for violations that, individually
or in the aggregate, would not have a Material Adverse Effect or a material
adverse effect on the ability of the Company and the Underwriters to consummate
the Offering, in violation of any law, statute, rule, regulation, judgment or
court decree applicable to the Company or any of its subsidiaries.
(k) The execution, delivery and performance of this Agreement by the
Company, compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not conflict with,
constitute a default under or violate (i) any of the terms, conditions or
provisions of the certificate of incorporation or by-laws of the Company or any
of its subsidiaries, (ii) any of the terms, conditions or provisions of any
document, agreement, indenture or other instrument to which the Company or any
of its subsidiaries is a party or by which the Company, any of its subsidiaries
or their respective properties are bound or (iii) any judgment, writ,
injunction, decree, order or ruling of any court or governmental authority
binding on the Company, any of its subsidiaries or their respective properties.
No consent, approval, waiver, license or authorization or other action by or
filing with any governmental authority is required in connection with the
execution, delivery and performance by the Company of this Agreement or the
consummation by the Company of the transactions contemplated hereby, except
under the Act and the state or foreign securities or blue sky laws.
(l) This Agreement has been duly authorized, executed and delivered by the
Company and (assuming the due execution and delivery thereof by the
Representatives) is the legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except (i) as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws now or hereafter in effect relating to or affecting creditors'
rights generally; (ii) that the remedies of specific performance and injunctive
and other forms of relief are subject to general equitable principles, whether
enforcement is sought at law or in equity, and that such enforcement may be
subject to the discretion of the court before which any proceedings therefor may
be brought; and (iii) as rights to indemnity and contribution may be limited by
state or federal laws relating to securities or by the policies underlying such
laws.
(m) Except as otherwise set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any of their respective property is the subject which is
required to be described in the Registration Statement or Prospectus, and to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated. No contract or other document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement is not so described or filed as required.
(n) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might result in a
Material Adverse Effect.
(o) (i) The Company and each of its subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease and operate its respective properties and
to conduct its business in the manner described in the Prospectus; (ii) the
Company and each of its subsidiaries has fulfilled and performed all of its
obligations with respect to such permits and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or termination thereof
or results in any other impairment of the rights of the holder of any such
permit; except, in the case of clauses (i) and (ii), where failure to have such
permits, the failure to fulfill or perform such obligations or the revocation or
termination of any such permits would not, individually or in the aggregate,
result in a Material Adverse Effect; and except as described in the Prospectus,
such permits
10
contain no restrictions that are materially burdensome to the Company or any of
its subsidiaries.
(p) The Company has reviewed the effect of Environmental Laws on the
business, operations and properties of the Company and its subsidiaries, in the
course of which it identified and evaluated associated costs and liabilities
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and
any potential liabilities to third parties). On the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse Affect.
(q) The Company and each of its subsidiaries has good and marketable title,
free and clear of all liens, claims, encumbrances and restrictions to all
property and assets described in the Registration Statement as being owned by it
except for any such liens (i) set forth on Schedule III hereto, (ii) for taxes
not yet due and payable or for taxes being contested in good faith and for which
adequate reserves, in accordance with generally accepted accounting principles,
have been taken and (iii) as would not, individually or in the aggregate, have a
Material Adverse Effect. All leases to which the Company or any of its
subsidiaries is a party are valid and binding, and no default has occurred or is
continuing thereunder which might result in a Material Adverse Effect, and the
Company and its subsidiaries enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such exceptions as do
not materially interfere with the use thereof made by the Company or such
subsidiary.
(r) The Company is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(s) Except as set forth in the Prospectus, no holder of any security of the
Company has any right to require registration of shares of Class A Common Stock
or any other security of the Company.
(t) The Company owns all rights to or has the right to use the names "Xxxxx
& Xxxxxx," "DEA," "Tesa," "Etalon," "Interapid," "Standard Gage," "Select
Guage," "Xxxxxx, "Roch," "Leitz and "Mauser" and the designs embodying those
names used by the Company and/or its subsidiaries, and owns or has the right to
use all of the patents, trademarks, service marks, trade names, copyrights,
licenses and rights, necessary for the present and planned future conduct of the
Company's business without, in any such case, any known conflict with the rights
of others, the result of which conflict is reasonably likely to result in a
Material Adverse Effect, and to the best of the Company's knowledge, there is no
infringement on such patents, trademarks, servicemarks, trade names, copyrights,
licenses and right (including, without limitation the name "Xxxxx & Xxxxxx,"
"DEA," "Tesa," "Etalon," "Interapid," "Standard Gage," "Select Guage," "Xxxxxx,
"Roch," "Leitz and "Mauser" and the designs embodying those names used by the
Company and/or its subsidiaries) by others.
(u) The Company and each of its subsidiaries maintains reasonably adequate
insurance.
(v) Ernst & Young LLP are independent public accountants with respect to the
Company as required by the Act. Coopers & Xxxxxxx L.L.P. are independent public
accountants with respect to the Company as required by the Act.
(w) The financial statements, together with related schedules and notes
forming part of the Registration Statement and the Prospectus (and any amendment
or supplement thereto), present fairly the consolidated financial position,
results of operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) is, in all material respects,
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and its subsidiaries.
(x) The pro forma financial information and the related notes thereto
included in the Registration Statement (and any amendment or supplement thereto)
have been prepared in accordance with the applicable requirements of the Act,
include all adjustments necessary to present fairly the pro forma financial
condition and results of operations at the respective dates and for the
respective periods indicated and are based upon good faith estimates and
assumptions believed by the Company to be reasonable.
(y) The Company has complied with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida).
(z) The Company and each of its subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain assets accountability; (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
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) All material tax returns required to be filed by the Company and each of
its subsidiaries in any jurisdiction have been filed and all taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
stated as due pursuant to such returns or pursuant to any assessment received by
the Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided or
those currently payable without penalty or interest.
11
(ab) Except as set forth in the Registration Statement and the Prospectus,
subsequent to the respective dates as of which information is given therein and
up to and including the Closing Date and each Option Closing Date, if any, (i)
none of the Company or any of its subsidiaries has incurred any liabilities or
obligations, direct or contingent, that are material to the Company and its
subsidiaries, taken as a whole, which have materially changed the financial
position of the Company, (ii) none of the Company or any of its subsidiaries has
entered into any transactions that are material to the Company and its
subsidiaries, taken as a whole, outside of the ordinary course of business,
(iii) there has not been any material adverse change in the business, condition
(financial or otherwise), results of operations, properties or prospects of the
Company and its subsidiaries, taken as a whole (each, a "Material Adverse
Change") and (iv) there has not been any change in the capital stock (except as
permitted under Section 5(n)) or increase in long-term debt of the Company or
any of its subsidiaries (other than as a result of revolving borrowings for
working capital incurred in the ordinary course of business), or any issuance of
options or warrants to purchase capital stock of the Company or any of its
subsidiaries, or any payment of or declaration to pay any dividends or other
distribution with respect to the capital stock of the Company, except (x) in the
case of clauses (i) and (iv), any obligations incurred after the date hereof
pursuant to the New Credit Facility (as defined in the Prospectus) and (y) in
the case of clause (iv), for options granted, and Common Stock issued, pursuant
to the EIP, Common Stock issued upon exercise of any option outstanding on the
date hereof, shares of Class A Common Stock issued upon conversion of shares of
Class B Common Stock outstanding on the date hereof and shares of Class A Common
Stock issued pursuant to the Xxxxx Contingent Stock Right.
(ac) None of the Company or any of its subsidiaries has (i) taken, directly
or indirectly, any action designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the price of any security of
the Company or any of its subsidiaries to facilitate the sale or resale of the
Shares or (ii) since the date on which the Registration Statement was first
filed, (A) sold, bid for, purchased or paid any person any compensation for
soliciting purchases of, the Class A Common Stock or any security of the same
class and series as the Class A Common Stock (other than (i) Common Stock sold
pursuant hereto, (ii) options granted, and Common Stock issued, pursuant to the
EIP, (iii) shares of Class A Common Stock issued upon conversion of shares of
Class B Common Stock outstanding on the date hereof, (iv) shares of Class A
Common Stock issued pursuant to the Xxxxx Contingent Stock Right and (v) Common
Stock issued upon exercise of any option outstanding on the date hereof) or (B)
paid or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(ad) The Common Stock is registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and all of the Shares
have been approved for trading on the NYSE.
(ae) Set forth in Schedule IV hereto is a true and complete list of the
Company's subsidiaries and their jurisdictions of organization. Mauser
Prezisions Messmittel GmbH, XXX Xxxxx GmbH and X. Xxxx S.A.R.L. did not (i)(A)
individually account for more than 5% of the Company's consolidated revenues,
operating income or net income or, in the aggregate, account for more than 10%
of the Company's consolidated revenues, operating income or net income for the
six months ended June 30, 1995 or 1996 or fiscal 1995 or (ii)(A) individually
account for more than 5% of the Company's consolidated assets or, in the
aggregate, account for more than 10% of the Company's consolidated assets at
June 30, 1995 or 1996 or December 31, 1995.
8. Representations and Warranties of the Selling Stockholders. Each
----------------------------------------------------------
Selling Stockholder severally represents and warrants to each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be sold by
such Selling Stockholder pursuant to this Agreement and has, and on the Closing
Date and each Option Closing Date, if any, will have, good and clear title to
such Shares, free of all restrictions on transfer, liens, encumbrances, security
interests and claims whatsoever (except the interests of the Underwriters
hereunder).
(b) Upon delivery of and payment for such Shares pursuant to this Agreement,
good and clear title to such Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security interests and claims
whatsoever.
12
(c) Such Selling Stockholder has, and on the Closing Date and each Option
Closing Date, if any, will have, full legal right, power and authority to enter
into this Agreement, the Power of Attorney (as defined below) and a Custody
Agreement (the "Custody Agreement") between the Selling Stockholders and the
Company, as Custodian (the "Custodian") and to sell, assign, transfer and
deliver such Shares in the manner provided herein and therein, and this
Agreement, the Power of Attorney and the Custody Agreement have been duly
authorized, executed and delivered by such Selling Stockholder and each of this
Agreement, the Power of Attorney and the Custody Agreement is a valid and
binding agreement of such Selling Stockholder enforceable in accordance with its
terms, except as rights to indemnity and contribution hereunder may be limited
by applicable law.
(d) The power of attorney (the "Power of Attorney") signed by such Selling
Stockholder appointing Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxx as its attorneys-
in-fact (each an "Attorney-in-Fact") to the extent set forth therein with regard
to the transactions contemplated hereby and by the Registration Statement and
the Custody Agreement has been duly authorized, executed and delivered by or on
behalf of such Selling Stockholder and is a valid and binding instrument of such
Selling Stockholder enforceable in accordance with its terms, and, pursuant to
such power of attorney, such Selling Stockholder has authorized Xxxxxxx X.
Xxxxxxx and Xxxxx X. Xxxxx to execute and deliver on its behalf this Agreement,
the Custody Agreement and any other document necessary or desirable in
connection with transactions contemplated hereby and to deliver the Shares to be
sold by such Selling Stockholder pursuant to this Agreement.
(e) Such Selling Stockholder has not taken, and will not take, directly or
indirectly, any action designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares pursuant to the
distribution contemplated by this Agreement, and other than as permitted by the
Act, the Selling Stockholder has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Shares.
(f) The execution, delivery and performance of this Agreement, the Power of
Attorney and the Custody Agreement by or on behalf of such Selling Stockholder,
compliance by such Selling Stockholder with all the provisions hereof and
thereof and the consummation of the transactions contemplated hereby and thereby
will not conflict with, constitute a default under or violate (i) any of the
terms, conditions or provisions of the organizational documents of the Selling
Stockholder, (ii) any of the terms, conditions or provisions of any document,
agreement, indenture or other instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder or its respective properties are
bound, (iii) any applicable law or regulation or (iv) any judgment, writ,
injunction, decree, order or ruling of any court or governmental authority
binding on the Selling Stockholder or its respective properties. No consent,
approval, waiver, license or authorization or other action by or filing with any
13
governmental authority is required in connection with the execution, delivery
and performance by the Selling Stockholder this Agreement, the Power of Attorney
and the Custody Agreement or the consummation by the Selling Stockholder of the
transactions contemplated hereby and thereby, except under the Act and the state
securities or blue sky laws.
(g) Such parts of the Registration Statement under the caption "Principal and
Selling Stockholders" which specifically relate to such Selling Stockholder do
not, and will not on the Closing Date (and each Option Closing Date, if
applicable), contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of circumstances under which they were made,
not misleading.
(h) At any time during the period described in paragraph 5(f) hereof, if
there is any change in the information referred to in paragraph 8(g) above, the
Selling Stockholder will immediately notify you of such change.
(i) Certificates in negotiable form for all Securities to be sold by such
Selling Stockholder under this Agreement have been placed in custody with the
Custodian for the purpose of effecting delivery under this Agreement.
(j) Except as noted by such Selling Stockholder in writing to DLJ, the
Selling Stockholder is not affiliated with or a person associated with a member
of the NASD.
9. Indemnification. (a) The Company and Finmeccanica, jointly and
---------------
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company
or on behalf of any Underwriter through you expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages
and liabilities and judgments purchased Shares, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or delivered by or on behalf of such
Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as amended and supplemented) would have
cured the defect giving rise to
14
such loss, claim, damage, liability or judgment. In addition, the Company agrees
to indemnify and hold harmless any Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against all costs of such Underwriter or
controlling person (including reasonable fees and expenses of counsel) incurred
in connection with the enforcement by the Underwriter or such controlling person
of the indemnification provisions of Section 9(a) of this Agreement against the
Company and Finmeccanica. Notwithstanding the foregoing, the aggregate liability
of any Selling Stockholder pursuant to the provisions of this paragraph shall be
limited to an amount equal to the aggregate purchase price received by such
Selling Stockholder from the sale of such Selling Stockholder's Shares
hereunder.
(b) Xxxxx agrees to indemnify and hold harmless the Underwriters and each
person, if any, who controls the Underwriters within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to Xxxxx furnished by Xxxxx or on behalf of the Xxxxx expressly for use therein.
In addition, Xxxxx agrees to indemnify and hold harmless the Underwriters and
each person, if any, who controls the Underwriters within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against all costs of
such Underwriter or controlling person (including reasonable fees and expenses
of counsel) incurred in connection with the enforcement by the Underwriter or
such controlling person of the indemnification provisions of Section 9(b) of
this Agreement against Xxxxx. Notwithstanding the foregoing, the aggregate
liability of any Xxxxx pursuant to the provisions of this paragraph shall be
limited to an amount equal to the aggregate purchase price received by Xxxxx
from the sale of such Xxxxx'x Shares hereunder.
(c) The Company agrees to indemnify and hold harmless each Selling
Stockholder and each person, if any, who controls any Selling Stockholder within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Selling Stockholder furnished in writing to the Company or on behalf of
any Selling Stockholder expressly for use therein. In addition, the Company
agrees to indemnify and hold harmless any Selling Stockholder and each person,
if any, who controls any Selling Stockholder within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, from and against all costs of such
Selling Stockholder or controlling person (including reasonable fees and
expenses of counsel) incurred in connection with the enforcement by the Selling
Stockholder or such controlling person of the indemnification provisions of
Section 9(c) of this Agreement against the Company. Notwithstanding the
foregoing, the aggregate liability of the Company pursuant to the provisions of
this paragraph shall be limited to an amount equal to the aggregate purchase
price received by the Company from the sale of the Company's Shares hereunder.
(d) The Selling Stockholders agree to indemnify and hold harmless the
Company and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to the Company furnished by the Company or on behalf of the Company expressly
for use therein. In addition, the Selling Stockholders agree to indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against all costs of such Company or controlling person (including
reasonable fees and expenses of counsel) incurred in connection with the
enforcement by the Company or such controlling person of the indemnification
provisions of Section 9(d) of this Agreement against the Selling Stockholders.
Notwithstanding the foregoing, the aggregate liability of any Selling
Stockholder pursuant to the provisions of this paragraph shall be limited to an
amount equal to the aggregate purchase price received by such Selling
Stockholder from the sale of such Selling Stockholder's Shares hereunder.
(e) In case any action shall be brought against any Underwriter or any
person controlling such Underwriter, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Company and/or the
Selling Stockholders, such Underwriter shall promptly notify the Company and the
Selling Stockholders in writing and the Company shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses. Any Underwriter or any
such controlling person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless (i) the employment of such counsel has been specifically
authorized in writing by the Company, (ii) the Company shall have failed to
assume the defense and employ counsel or (iii) the named parties to any such
action (including any impleaded parties) include both such Underwriter or such
controlling person and the Company and such Underwriter or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Company or the Selling Stockholders, as the case may be, in
which case the Company shall not have the right to assume the defense of such
action on behalf of such Underwriter or such controlling person and the Company
shall be liable for the legal expenses of counsel to such Underwriter or such
controlling person in connection with the defense of such action, provided that
such counsel to such Underwriter or such controlling person shall use reasonable
efforts to coordinate with counsel to the Company on overlapping issues, it
being understood, however, that the Company shall not, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all such Underwriters and controlling
persons, which firm shall be designated in writing by DLJ and that all such fees
and expenses shall be reimbursed as they are incurred. A Seller shall not be
liable for any settlement of any action subject to indemnification hereunder
effected without the written consent of such Seller but if settled with the
written consent of such Seller, such Seller agrees to indemnify and hold
harmless any Underwriter and any such controlling person from and against any
loss or liability by reason of such settlement. Notwithstanding the immediately
preceding sentence, if in any case where the fees and expenses of counsel are at
the expense of the indemnifying party under this Agreement and an indemnified
party shall have requested the indemnifying party to reimburse the indemnified
party for such fees and expenses of counsel as incurred, such indemnifying party
agrees that it shall be liable for any settlement of any action effected without
its written consent if (i) such settlement is entered into more than twenty
business days after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to reimburse the
indemnified party in accordance with such request for reimbursement 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.
(f) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, any person controlling the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, each Selling Stockholder and each
person, if any, controlling such Selling Stockholder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Sellers to each Underwriter but only with
reference to information relating to such Underwriter furnished in writing by or
on behalf of such Underwriter through you expressly for use in the Registration
Statement or the Prospectus (as amended or supplemented) or any preliminary
prospectus. In case any action shall be brought against the Company, any of its
directors, any such officer or any person controlling the Company or the Selling
Stockholders based on the Registration Statement or the Prospectus (as amended
or supplemented) or any preliminary prospectus and in respect of which indemnity
may be sought against any Underwriter, the Underwriter shall have the rights and
duties given to the Sellers (except that if any Seller shall have assumed the
defense thereof, such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and the
Company, its directors, any such officers and any person controlling the Company
and the Selling Stockholder and any person controlling such Selling Stockholder
shall have the rights and duties given to the Underwriter, by Section 9(e)
hereof.
(g) If the indemnification provided for in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages, liabilities or
judgments referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the Sellers on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only relative benefits referred
to in clause (i) above but also the relative fault of the Sellers and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Sellers
and the Underwriters shall be deemed to be in the same proportion as the total
proceeds from the offering (before deducting expenses but after deducting
underwriting discounts and commissions) received by the Sellers and the total
underwriting discounts and commissions received by the Underwriters, bear to the
total price to the public of the Shares, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Sellers and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Company, the
Selling Stockholders or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Sellers and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 9(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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9(g) are
several in proportion to the respective number of Shares purchased by each of
the Underwriters hereunder and not joint.
(h) Each Seller hereby designates _________________________ (a Delaware
corporation) as its authorized agent, upon which process may be served in any
action, suit or proceeding which may be served in any state or federal court in
the State of New York by any Underwriter or person controlling an Underwriter
asserting a claim for indemnification or contribution under or pursuant to this
Section 9. Each Seller will accept the jurisdiction of such court in such
action, and waives, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or
15
venue. A copy of any such process shall be sent or given to such Seller, at the
address for notices specified in Section 12 hereof .
10. Conditions of Underwriters' Obligations. The several obligations of the
---------------------------------------
Underwriters to purchase the Firm Shares on the Closing Date and the Additional
Shares on any Option Closing Date are subject to the satisfaction of each of the
following conditions:
(a) All of the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date and each Option
Closing Date, if any, with the same force and effect as if made on and as of the
Closing Date or such Option Closing Date, as the case may be. The Company shall
have performed or complied with all of the agreements herein contained and
required to be performed or complied with by the Company at or prior to the
Closing Date and each Option Closing Date, if any.
(b) All the representations and warranties of the Selling Stockholders
contained in this Agreement shall be true and correct on the Closing Date and
each Option Closing Date, if any, with the same force and effect as if made on
and as of the Closing Date or such Option Closing Date, as the case may be, and
the Underwriters shall have received a certificate to such effect, dated the
Closing Date or such Option Closing Date, as the case may be, from or on behalf
of each Selling Stockholder. The Selling Stockholders shall have performed or
complied with all of the agreements herein contained and required to be
performed or complied with by each of them at or prior to the Closing Date or
each Option Closing Date, as the case may be.
(c)(i) The Registration Statement shall have become effective (or if a post-
effective amendment thereto (including any such amendment required to be filed
pursuant to Rule 430A or Rule 462 under the Act) has been filed, such post-
effective amendment shall become effective) not later than
___________________________________________ or at such later date and time as
the Underwriters may approve in writing, (ii) at or prior to the Closing Date
and each Option Closing Date, if any, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission and every comment by or request for additional information on the
part of the Commission or any securities commission or regulatory authority of
the several states or any foreign jurisdiction shall have been responded to or
complied with in all material respects and (iii) no stop order suspending the
sale of the Shares in any jurisdiction designated by the Underwriters pursuant
to Section 5(h) hereof shall have been issued and no proceeding for that purpose
shall have been commenced and be pending before any securities regulators, and
the Company shall not have received notice of the contemplation of any such
issuance by any such securities regulator.
(d)(i) Subsequent to the effective date of this Agreement, except as set
forth in the Registration Statement and the Prospectus, (i) there shall not have
been any Material Adverse Change, or any development involving a prospective
Material Adverse Change, whether or not arising in the ordinary course of
business of the Company, (ii) there shall not have been any change, or any
development involving a prospective material adverse change, in the capital
stock (except as permitted under Section 5(n)) or in the long-term debt of the
Company or any of its subsidiaries (other than as a result of borrowings
(revolving or other) for working capital incurred in the ordinary course of
business or as a result of entering into the New Facility after the effective
date hereof), (iii) the Company and its subsidiaries shall not have incurred any
liability or obligation, direct or contingent, which is material to the Company
and its subsidiaries, taken as a whole and which have materially changed the
financial position of the Company and its subsidiaries, taken as a whole, other
than as a result of entering into the New Facility after the effective date
hereof and (iv) on the Closing Date and each Option Closing Date, if any, you
shall have received a certificate dated the Closing Date or such Option Closing
Date, signed by Xx. Xxxxx X. Xxxxxx and Xx. Xxxxxxx X. Xxxxxxx, in their
capacities as the Chief Executive Officer and Chief Financial Officer of the
Company, confirming the matters set forth in paragraphs (a), (c), and (d) of
this Section 10.
(e) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion (substantially in the form attached hereto as Annex
III), dated the Closing Date or such Option Closing Date, if any, of Ropes &
Xxxx, counsel for the Company, with respect to the Company and its subsidiaries.
The opinion of Ropes & Xxxx shall be rendered to you at the request of the
Company and shall so state therein.
(f) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion (satisfactory to you and counsel for the Underwriters)
dated the Closing Date and each Option Closing Date, if any, of Xxxxx Xxxxx,
Esq., counsel for the Company, to the effect that:
(i) each subsidiary of the Company organized under the laws of any state
of the United States (each, a "Domestic Subsidiary") has been duly
organized, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate
power and authority required to carry on its business as it is
currently being conducted and to own its properties, in each case as
described in the Prospectus;
(ii) each Domestic Subsidiary of the Company is duly qualified and is in
good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a Material Adverse Effect;
(iii) none of the Company nor any of its Domestic Subsidiaries is in
violation of its respective charter or by-laws and, to the best of
such counsel's knowledge after due inquiry, none of the Company or any
of its subsidiaries is in default in any material respect in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other material agreement, indenture or instrument to which the Company
or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound and that is
material to the conduct of the business of the Company and its
subsidiaries, taken as a whole;
(iv) to the best of such counsel's knowledge, after due inquiry, the
Company and its subsidiaries have all the right, title and interest to
16
all trademarks, trademark applications, service marks, service xxxx
applications, trade names, copyrights, patents and patent applications
(the "Intellectual Property") owned by them, and have the right to
use, pursuant to valid licenses, agreements or common and proper
public domain usage, all other Intellectual Property, necessary for
the conduct and operation of the business of the Company and its
subsidiaries as presently conducted, except where the failure to own
or have the right to use such Intellectual Property would not have a
Material Adverse Effect. There are no material claims or proceedings
pending or, to the best knowledge of such counsel, threatened with
respect to the Intellectual Property, and after due inquiry, such
counsel has no reason to believe that use by the Company or any of its
subsidiaries of any of the aforementioned Intellectual Property
infringes or may infringe the rights of any other person;
(v) except as set forth in the Prospectus, to the best of such counsel's
knowledge, after due inquiry, neither the Company nor any of its
subsidiaries has violated any Environmental Laws, nor any federal or
state law relating to discrimination in the hiring, promotion or pay
of employees nor any applicable federal or state wages and hours laws,
nor any provisions of the Employee Retirement Income Security Act or
the rules and regulations promulgated thereunder, which in each case
might result in any Material Adverse Effect; and
(vi) to the best of such counsel's knowledge, (A) the Company and each of
its subsidiaries has such permits, licenses, franchises and
authorizations or governmental or regulatory authorizations
("permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its business in the manner
described in the Prospectus; (B) after due inquiry, the Company and
each of its subsidiaries has fulfilled and performed all of its
obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time, would allow,
revocation or termination thereof or results in any other impairment
of the rights of the holder of any such permit; except, in the case of
clauses (A) and (B), where the failure to have such permits, the
failure to fulfill or perform such obligations or the revocation or
termination of any such permits would not, individually or in the
aggregate, result in a Material Adverse Effect; subject in each case
to such qualification as may be set forth in the Prospectus, such
permits contain no restrictions that are materially burdensome to the
Company or any of its subsidiaries.
(vii) all of the outstanding shares of capital stock of, or other
ownership interests in, each of the Domestic Subsidiaries have been
duly and validly authorized and issued and are fully paid and non-
assessable, and are owned by the Company, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
nature except (A) the 50% interest in Automation Software Incorporated
owned by Analysis & Technology, Inc. and (B) security interests,
claims, liens, encumbrances and adverse interests set forth on
Schedule III hereto; to the best knowledge of such counsel, there are
no outstanding rights, warrants or options to acquire, or securities
convertible into or exchangeable for, any shares of capital stock or
other equity interest in any of the Domestic Subsidiaries
(viii) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion (substantially in the form attached hereto as Annex IV)
dated the Closing Date and each Option Closing Date, if any, of Xxxxxxxx
Solicitors, counsel for the Company with respect to Xxxxx & Xxxxxx Group
Limited, Xxxxx & Xxxxxx Limited and Xxxxxx - Xxxxx & Xxxxxx Limited.
(ix) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion (substantially in the form attached hereto as Annex IV)
dated the Closing Date and each Option Closing Date, if any, of Gide Loyrette
Nouel, counsel for the Company with respect to Xxxx - Xxxxx & Xxxxxx X.X., Xxxx
France S.A. and XXX - Xxxxx & Xxxxxx X.X.
(x) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion (substantially in the form attached hereto as Annex IV)
dated the Closing Date and each Option Closing Date, if any, of Bruckhaus
Xxxxxxxx Xxxxxxxxx, counsel for the Company with respect to Xxxxx - Xxxxx &
Xxxxxx Messtechnik GmbH.
17
(xi) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion (substantially in the form attached hereto as Annex IV)
dated the Closing Date and each Option Closing Date, if any, of Xxxxxxxx Kraft &
Xxxx, counsel for the Company with respect to Tesa - Xxxxx & Xxxxxx X.X.
(xii) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion (substantially in the form attached hereto as Annex IV)
dated the Closing Date and each Option Closing Date, if any, of Xxxxxx, Casati e
Associati, counsel for the Company with respect to XXX - Xxxxx & Xxxxxx S.p.A.
18
(f) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion (satisfactory to you and counsel for the Underwriters)
dated the Closing Date and each Option Closing Date, if any, of Xxxxxx, Xxxxx &
Bockius LLP counsel for the Finmeccanica, to the effect that:
(i) Finmeccanica has been duly organized, is validly existing as a
corporation in good standing under the laws of ___________ and has the
corporate power and authority required to carry on its business and to
own, lease and operate its properties;
(ii) the Power of Attorney has been duly authorized, executed and delivered
by Finmeccanica; each of the Custody Agreement and this Agreement has
been duly authorized, executed and delivered by the Attorney-in-Fact,
and each of the Power of Attorney and the Custody Agreement
constitutes a valid and binding agreement of Finmeccanica, enforceable
in accordance with its terms, except (i) as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally; (ii) that the remedies of specific
performance and injunctive and other forms of relief are subject to
general equitable principles, whether enforcement is sought at law or
in equity, and that such enforcement may be subject to the discretion
of the court before which any proceedings therefor may be brought; and
(iii) as rights to indemnity and contribution may be limited by state
or federal laws relating to securities or by the policies underlying
such laws;
(iii) the execution, delivery and performance of each of the Power of
Attorney, the Custody Agreement and this Agreement by Finmeccanica,
compliance by Finmeccanica with all the provisions of the Power of
Attorney, the Custody Agreement and this Agreement, and the
consummation of the transactions contemplated hereby and thereby, will
19
not conflict with, constitute a default under or violate (i) any of
the terms, conditions or provisions of the [certificate of
incorporation or by-laws] of Finmeccanica as in effect on the date of
such opinion, (ii) any of the terms, conditions or provisions of any
document, agreement, indenture or other instrument to which
Finmeccanica is a party or by which Finmeccanica or its respective
properties are bound, (iii) any [Italian] law or regulation (other
than United States securities laws and other than state securities or
blue sky laws, as to which such counsel need express no opinion) or
(iv) any judgment, writ, injunction, decree, order or ruling of any
court or governmental authority binding on Finmeccanica or its
respective properties of which such counsel is aware. No consent,
approval, waiver, license or authorization or other action by or
filing with any governmental authority is required in connection with
the execution, delivery and performance by the or on behalf of
Finmeccanica of the Power of Attorney, the Custody Agreement or this
Agreement or the consummation by Finmeccanica of the transactions
contemplated hereby, except under United States securities laws and
other state securities or blue sky laws, as to which such counsel need
express no opinion;
(iv) immediately prior to the Closing Date, Finmeccanica (i) was the record
owner of the Shares to be sold on the Closing Date by Finmeccanica
under this Agreement, free and clear, to such counsel's knowledge, of
all liens, encumbrances, equities or claims and (ii) had all requisite
right, power and authority to sell, assign, transfer and deliver the
Shares to be sold by Finmeccanica on the Closing Date; and
(v) upon delivery of the Shares to be sold by Finmeccanica to the
Underwriters, and payment therefor by the Underwriters in accordance
with this Agreement on the Closing Date, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or claims,
will be transferred to each of the several Underwriters who have
purchased such Shares in good faith and without notice of any such
lien, encumbrance, equity or claim or any other adverse claim (as such
term is used in Section 8-302 of the Uniform Commercial Code in effect
in the State of New York).
(g) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion (substantially in the form attached hereto as Annex V)
dated the Closing Date of Xxxxxx, Xxxxxxx, Xxxxxxxxx & Green P.C., counsel for
Xxxxx.
(h) You shall have received on the Closing Date and each Option Closing
Date, if any, an opinion, dated the Closing Date and each Option Closing Date,
if any, of Xxxxxx & Xxxxxxx, counsel for the Underwriters, in form and substance
reasonably satisfactory to the Underwriters.
(i) You shall have received a letter concurrently with the execution of
this Agreement and on and as of the Closing Date and each Option Closing Date,
if any, in form and substance reasonably satisfactory to you, from Ernst & Young
LLP, independent public accountants, with respect to the financial statements
and certain financial information contained in the Registration Statement and
the Prospectus.
20
(j) You shall have received a letter concurrently with the execution of
this Agreement and on and as of the Closing Date and each Option Closing Date,
if any, in form and substance reasonably satisfactory to you, from Coopers &
Xxxxxxx L.L.P., independent public accountants, with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(k) Xxxxxx & Xxxxxxx shall have been furnished with such documents as they
may reasonably require for the purpose of enabling them to review or pass upon
the matters referred to in this Section 10 and in order to evidence the
accuracy, completeness and satisfaction of the representations, warranties and
conditions herein contained.
(l) Each of the persons set forth in Annex II shall have delivered to you a
Lock-Up Agreement.
(m) The Underwriters shall have received from each Selling Stockholder on
the Closing Date an executed Form W-9 (or Form W-8 if such Selling Stockholder
is not a U.S. citizen).
(n) The Company shall have delivered the Instruction to the Transfer Agent.
(o) Finmeccanica, as a party to the Shareholder's Agreement, dated as of
September 28, 1994, between the Company and Finmeccanica (the "Shareholder's
Agreement") shall have executed and delivered a waiver, satisfactory in form and
substance to the Underwriters, of the applicability of the terms of the
Shareholder's Agreement to the sale of shares in the Offering and acknowledging
that, notwithstanding any provision of the Shareholder's Agreement to the
contrary, all such Shares sold in the Offering will be owned by any purchaser
thereof free and clear of any obligations or preemptive rights under the
Shareholder's Agreement.
(p) On the Closing Date, the Company shall have delivered evidence
satisfactory to you and your counsel that the indebtedness of the Company to be
repaid (as described under "Use of Proceeds" in the Prospectus) with a portion
of the proceeds from the sale of Shares pursuant hereto has been repaid.
All opinions, certificates, letters and other documents required by this
Section 10 to be delivered by the Company and the Selling Stockholders will be
in compliance with the provisions hereof if and only if they are reasonably
satisfactory in form and substance to the Underwriters. The Company and the
Selling Stockholders will furnish the Underwriters with such conformed copies of
such opinions, certificates, letters and other documents as the Underwriters or
their counsel shall reasonably request.
21
11. Effective Date of Agreement and Termination. This Agreement shall
-------------------------------------------
become effective upon the later of (i) execution of this Agreement, (ii) when
notification of the effectiveness of the Registration Statement has been
released by the Commission and (iii) if a post-effective amendment to the
Registration Statement has been filed (including any post-effective amendment
required to be filed pursuant to Rule 430A or Rule 462 under the Act), the
effectiveness of such post-effective amendment. Until this Agreement becomes
effective as aforesaid, it may be terminated by the Company and the Selling
Stockholders by notifying the Underwriters or by the Underwriters by notifying
the Company and the Attorney-in-Fact.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Company and the Attorney-in-Fact if any of the
following has occurred: (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, any Material Adverse
Change or development involving a prospective Material Adverse Change, whether
or not arising in the ordinary course of business, which would, in your
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market or limitation on prices for
securities on any such exchange or the Nasdaq National Market, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company or any of its
subsidiaries, (v) the declaration of a banking moratorium by either federal or
New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in your opinion has a material adverse effect on the financial markets in
the United States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it or they have agreed to
purchase hereunder on such date and the aggregate number of Firm Shares or
Additional Shares, as the case may be, which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase is
not more than one-tenth of the total number of Shares to be purchased on such
date by all Underwriters, each non-defaulting Underwriter shall be obligated
severally, in the proportion which the number of Firm Shares set forth opposite
its name in Schedule I bears to the total number of Firm Shares which all the
non-defaulting Underwriters, as the case may be, have agreed to purchase, or in
such other proportion as you may specify, to purchase the Firm Shares or
Additional Shares, as the case may
22
be, which such defaulting Underwriter or Underwriters, as the case may be,
agreed but failed or refused to purchase on such date; provided that in no event
shall the number of Firm Shares or Additional Shares, as the case may be, which
any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 11 by an amount in excess of one-ninth of such number
of Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Closing Date or an Option Closing Date,
as the case may be, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares or Additional Shares, as the case may be, and the aggregate
number of Firm Shares or Additional Shares, as the case may be, with respect to
which such default occurs is more than one-tenth of the aggregate number of
Shares to be purchased on such date by all Underwriters and arrangements
satisfactory to you and the applicable Sellers for purchase of such Shares are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Company and
the applicable Sellers. In any such case which does not result in termination of
this Agreement, either you or the Sellers shall have the right to postpone the
Closing Date or the applicable Option Closing Date, as the case may be, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
12. Miscellaneous. Notices given pursuant to any provision of this
-------------
Agreement shall be addressed as follows: (a) if to the Company, Xxxxx & Xxxxxx
Manufacturing Company, Precision Park, 000 Xxxxxxxxxx Xxxx, Xxxxx Xxxxxxxxx,
Xxxxx Xxxxxx 00000, (b) if to the Selling Stockholders, to Xxxxxxx X. Xxxxxxx
or Xxxxx X. Xxxxx, Attorney-in-Fact, Xxxxx & Xxxxxx Manufacturing Company,
Precision Park, 000 Xxxxxxxxxx Xxxx, Xxxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000 (c)
if to the Attorney-in-Fact, to Xxxxxxx X. Xxxxxxx or Xxxxx X. Xxxxx, Attorney-
in-Fact, Xxxxx & Xxxxxx Manufacturing Company, Precision Park, 000 Xxxxxxxxxx
Xxxx, Xxxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000, and (d) if to any Underwriter or to
you, to you care of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in
any case to such other address as the person to be notified may have requested
in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter or by or on behalf
of the Sellers, the officers or directors of the Company or any controlling
person of the Sellers, (ii) acceptance of the Shares and payment for them
hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Sellers to comply with the terms hereof or
to fulfill any of the conditions of this Agreement, the Sellers agree to
reimburse the several Underwriters for all out-
23
of-pocket expenses (including the fees and disbursements of counsel) reasonably
incurred by them in connection with the matters contemplated by this Agreement.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
24
Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Selling Stockholder and the several Underwriters.
Very truly yours,
Xxxxx & Xxxxxx Manufacturing Company
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
Xxxxx GmbH & Co.
By:___________________________
Name:
Title:
______________________________
Mr. __________________, as Attorney-
in-Fact
25
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
CS First Boston Corporation
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
By:__________________________
Name:
Title:
26
SCHEDULE I
----------
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
CS First Boston Corporation
---------------------
Total 7,286,000
27
SCHEDULE II
-----------
Seller Number of Number of
-------------------------------------- ----------- ------------
Firm Shares total shares
----------- ------------
Xxxxx & Xxxxxx Manufacturing Company 4,000,000 772,900
Finmeccanica S.p.A. 3,130,000 320,000
Xxxxx GmbH & Co. 156,000 0
========= =========
Total 7,286,000 1,092,000
28
ANNEX I
-------
Required Stockholder Lock-ups
-----------------------------
[Finmeccanica S.p.A.]
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Batting
Xxxxxxx Xxxxxxxx
Xxxxxx X. XxXxxxxx
C. Xxxx Xxxxx
Xxxxxx Xxxxx
Xxxxx X. Xxxxxx
Xxxx Xxxx
Xxxxxx X. Xxxxx
Xxxxxx Albareto
Xxxxxxx X. Boss
Xxxxxxxx Xxxxxxxxxx
Xxxxxxx xx Xxxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Xx.
Xxxxx X. Xxxxxx, III
Xxxx X. Xxxxxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
29
ANNEX II
--------
Form of Lock-up Agreement
-------------------------
_______ __, 1996
Xxxxx & Xxxxxx Manufacturing Company
Precision Park
000 Xxxxxxxxxx Xxxx
Xxxxx Xxxxxxxxx, Xxxxx Xxxxxx 00000
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
CS First Boston Corporation
As representatives of the
several underwriters
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned understands that Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation and CS First Boston Corporation, as Representatives (the
"Representatives") of the several underwriters (the "Underwriters"), propose to
enter into an Underwriting Agreement with Xxxxx & Xxxxxx Manufacturing Company
(the "Company") providing for the public offering by the Underwriters, including
the Representatives, of Class A Common Stock, par value $1.00 per share (the
"Common Stock") of the Company (the "Offering").
In consideration of the Underwriters' agreement to purchase and undertake the
Offering of the Company's Common Stock and for other good and valuable
consideration, receipt of which is hereby acknowledged, the undersigned agrees
not to, directly or indirectly, register for sale, offer, sell, contract to
sell, grant any option to purchase or otherwise dispose of any Common Stock
(including, without limitation, shares of Common Stock which may be deemed to be
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beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and shares of Common Stock
which may be issued upon exercise of a stock option or warrant) or any
securities convertible into or exercisable or exchangeable for such Common Stock
or, in any manner, transfer all or a portion of the economic consequences
associated with the ownership of the Common Stock, without the prior written
consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, for a period of
180 days after the commencement of the Offering.
In addition, the undersigned agrees that the Company may, and that the
undersigned will, (i) with respect to any shares of Common Stock for which the
undersigned is the record holder, cause the transfer agent for the Company to
note stop-transfer instructions with respect to such shares of Common Stock on
the transfer books and records of the Company and (ii) with respect to any
shares of Common Stock for which the undersigned is the beneficial holder but
not the record holder, cause the record holder of such shares of Common Stock to
cause the transfer agent for Company to note stop-transfer instructions with
respect to such shares of Common Stock on the transfer books and records of the
Company.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this letter agreement, and that, upon request,
the undersigned will execute any additional documents necessary or desirable in
connection with the enforcement hereof. All authority herein conferred or
agreed to be conferred shall survive the death or incapacity of the undersigned
and any obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors, and assigns of the undersigned.
Very truly yours,
------------------------
------------------------------
(Name - Please Type)
------------------------------
------------------------------
------------------------------
(Address)
-----------------------------------------------
(Social Security or Taxpayer Identification No.)
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Number of shares owned or Certificate numbers:
subject to warrants, options ______________________________
or convertible securities:
------------------------------ ------------------------------
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ANNEX III
---------
Form of Opinion of Foreign Counsel
----------------------------------
1. [Subsidiary] is a [corporation] duly [incorporated] and validly existing
under the laws of __________________.
2. The authorized capital stock of [Subsidiary] consists of
_____________________________, with a par value of ________, of which _______
shares are registered on the books of the [Subsidiary] in the name of [Xxxxx
& Xxxxxx Manufacturing Company] and such registered shares are all the shares
which are shown on the books of [Subsidiary] as being issued and outstanding
at the date hereof. All such outstanding shares have been duly authorized,
validly issued and are fully paid and non-assessable.
3. Neither the [articles of incorporation] nor the [by-laws] or any resolutions
contained in the minute book of [Subsidiary] nor the [body of corporate law]
which governs [Subsidiary], grants any preemptive rights which affect
[Subsidiary].
4. To the best of our knowledge, after due inquiry, there are no outstanding
subscriptions, rights, warrants, commitments of sale or options to acquire,
or instruments convertible into or exchangeable for, unissued shares of the
capital stock of [Subsidiary].
5. The issuance and sale of the 4,000,000 shares of Class A Common Stock, $1.00
par value per share, of Xxxxx & Xxxxxx Manufacturing Company (the "Company")
by the Company to the Underwriters (the "Sale") will not conflict with,
constitute a default under or violate (i) any of the terms, conditions or
provisions of the [certificate of incorporation] or [by-laws] of [Subsidiary]
as in effect on the date of such opinion, (ii) any law or regulation (other
than securities laws and other than state securities or blue sky laws, as to
which such counsel need express no opinion) or (iii) any judgment, writ,
injunction, decree, order or ruling of any court or governmental authority
binding on [Subsidiary] or its respective properties identified in writing to
such counsel. No consent, approval, waiver, license or authorization or
other action by or filing with any governmental authority is required to be
taken by [Subsidiary] in connection with the Sale, except under securities
laws and other than state securities or blue sky laws as to which such
counsel need express no opinion.
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