Draft
March 21, 1997
XxXXXX CORPORATION
2,000,000 Shares*
Common Stock
UNDERWRITING AGREEMENT
----------------------
March , 1997
PRUDENTIAL SECURITIES INCORPORATED
XXXXX & COMPANY
SALOMON BROTHERS INC
XXXXXXX & COMPANY, INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XxXxxx Corporation, a Delaware corporation (the "Company"), and the
stockholders of the Company named in Schedule 2 hereto (the "Selling
Stockholders") hereby confirm their respective agreements with the several
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom you have
been duly authorized to act as representatives (in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. Securities. Subject to the terms and conditions herein contained,
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the Company proposes to issue and sell to the several Underwriters an aggregate
of 658,838 shares (the "Company's Firm Securities") of the Company's Common
Stock, par value $0.01 per share
--------------------
/*/ Plus an option to purchase from the Company up to an aggregate of 300,000
additional shares to cover over-allotments.
("Common Stock"), and the Selling Stockholders severally (and not jointly)
propose to sell to the several Underwriters an aggregate of 1,341,162 shares of
Common Stock (the "Selling Stockholders' Firm Securities") as indicated on
Schedule 2 hereto. Collectively, the Company's Firm Securities and the Selling
Stockholders' Firm Securities are hereinafter referred to as the "Firm
Securities." In addition, the Company proposes to sell to the several
Underwriters not more than 300,000 shares of Common Stock, if requested by the
Representatives as provided in Section 3(b) of this Agreement. Any and all
shares of Common Stock to be purchased by the Underwriters from the Company
pursuant to such option are referred to herein as the "Option Securities," and
the Firm Securities and any Option Securities are collectively referred to
herein as the "Securities."
2. Representations and Warranties.
------------------------------
(a) The Company hereby represents and warrants to, and agrees with,
each of the several Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"). A registration
statement on Form S-3 (File No. 333-22117) with respect to the
Securities, including a prospectus subject to completion, has been
filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Act"), and one or more amendments to such registration statement may
have been so filed. After the execution of this Agreement, the
Company will file with the Commission either (A) if such registration
statement, as it may have been amended, has been declared by the
Commission to be effective under the Act, either (1) if the Company
relies on Rule 434 under the Act, a Term Sheet (as hereinafter
defined) relating to the Securities, that shall identify the
Preliminary Prospectus (as hereinafter defined) that it supplements
and, if required to be filed pursuant to Rules 434(c)(2) and 424(b),
an Integrated Prospectus (as hereinafter defined), in either case
containing such information as is required or permitted by Rules 434,
430A and 424(b) under the Act or (2) if the Company does not rely on
Rule 434 under the Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no
such amendment shall have been filed, in such registration statement),
with such changes or insertions as are required by Rule 430A under the
Act or permitted by Rule 424(b) under the Act, and in the case of
either clause (i)(A)(1) or (i)(A)(2) of this sentence, as have been
furnished to and approved by the Representatives prior to the
execution of this Agreement, or (B) if such registration statement, as
it may have been amended, has not been declared by the Commission to
be effective under the Act, an amendment to such registration
statement, including a form of prospectus, a copy of which amendment
has been furnished to and approved by the Representatives prior to the
execution of this Agreement. The Company may also file a related
registration statement with the Commission pursuant to Rule 462(b)
under the Act for the purpose of registering certain additional
Securities, which registration statement shall be effective upon
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filing with the Commission. As used in this Agreement, the term
"Original Registration Statement" means the registration statement
initially filed relating to the Securities, as amended at the time
when it was or is declared effective, including (A) all financial
schedules and exhibits thereto, (B) all documents incorporated by
reference therein filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and (C) any information omitted
therefrom pursuant to Rule 430A under the Act and included in the
Prospectus (as hereinafter defined) or, if required to be filed
pursuant to Rules 434(c)(2) and 424(b), in the Integrated Prospectus;
the term "Rule 462(b) Registration Statement" means any registration
statement filed with the Commission pursuant to Rule 462(b) under the
Act (including the Registration Statement and any Preliminary
Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration
Statement" includes both the Original Registration Statement and any
Rule 462(b) Registration Statement; the term "Preliminary Prospectus"
means each prospectus subject to completion filed with such
registration statement or any amendment thereto (including the
prospectus subject to completion, if any, included in the Registration
Statement or any amendment thereto at the time it was or is declared
effective), including all documents incorporated by reference therein
filed under the Exchange Act; the term "Prospectus" means: (A) if the
Company relies on Rule 434 under the Act, the Term Sheet relating to
the Securities that is first filed pursuant to Rule 424(b)(7) under
the Act, together with the Preliminary Prospectus identified therein
that such Term Sheet supplements; (B) if the Company does not rely on
Rule 434 under the Act, the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Act; or (C) if the Company does not
rely on Rule 434 under the Act and if no prospectus is required to be
filed pursuant to Rule 424(b) under the Act, the prospectus included
in the Registration Statement, including, in the case of the
immediately preceding clauses (A), (B) or (C), all documents
incorporated by reference therein filed under the Exchange Act; the
term "Integrated Prospectus" means a prospectus first filed with the
Commission pursuant to Rules 434(c)(2) and 424(b) under the Act; and
the term "Term Sheet" means any term sheet that satisfies the
requirements of Rule 434 under the Act. Any reference in this
Agreement to an "amendment or supplement" to any Preliminary
Prospectus, Prospectus or any Integrated Prospectus or an "amendment"
to any registration statement (including the Registration Statement)
shall be deemed to include any document incorporated by reference
therein that is filed with the Commission under the Exchange Act after
the date of such Preliminary Prospectus, Prospectus, Integrated
Prospectus or registration statement, as the case may be; any
reference herein to the "date" of a Prospectus that includes a Term
Sheet shall mean the date of such Term Sheet. For purposes of the
preceding sentence, any reference to the "effective date" of an
amendment to a registration statement shall, if such amendment is
effected by means of the filing with the Commission under the Exchange
Act of a document incorporated by
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reference in such registration statement, be deemed to refer to the
date on which such document was so filed with the Commission.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus and any amendment of supplement thereto was filed with the
Commission it (A) contained all statements required to be stated
therein in accordance with, and complied in all material respects with
the requirements of, the Act, the Exchange Act and the respective
rules and regulations of the Commission thereunder and (B) did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto
was or is declared effective, it (A) contained or will contain all
statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act, the Exchange Act and the respective rules and regulations
of the Commission thereunder and (B) did not or will not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the
Prospectus or any Term Sheet that is a part thereof or any Integrated
Prospectus or any amendment or supplement to the Prospectus is filed
with the Commission pursuant to Rule 424(b) (or, if the Prospectus or
part thereof or such amendment or supplement is not required to be so
filed, when the Registration Statement or the amendment thereto
containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise
amended or supplemented and on the Firm Closing Date and any Option
Closing Date (both as hereinafter defined), each of the Prospectus
and, if required to be filed pursuant to Rules 434(c)(2) and 424(b)
under the Act, the Integrated Prospectus, as amended or supplemented
at any such time, (A) contained or will contain all statements
required to be stated therein in accordance with, and complied or will
comply in all material respects with the requirements of, the Act, the
Exchange Act and the respective rules and regulations of the
Commission thereunder and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (ii) do not apply to statements
or omissions made in any Preliminary Prospectus or any amendment or
supplement thereto, the Registration Statement or any amendment
thereto, the Prospectus or any amendment or supplement thereto or, if
required to be filed pursuant to Rules 434(c)(2) and 424(b) under the
Act, the Integrated Prospectus or any amendment or supplement thereto
in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives
specifically for use therein. If the Company has elected to rely on
Rule 462(b) and the Rule 462(b) Registration Statement has not been
declared effective (i) the Company has filed a Rule 462(b)
Registration Statement in
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compliance with and that is effective upon filing pursuant to Rule
462(b) and has received confirmation of its receipt and (ii) the
Company has given irrevocable instructions for transmission of the
applicable filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under
the Act or the Commission has received payment of such filing fee.
(iii) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation and
are duly qualified to transact business as foreign corporations and
are in good standing under the laws of all other jurisdictions where
the ownership or leasing of their respective properties or the conduct
of their respective businesses requires such qualification, except
where the failure to be so qualified does not amount to a material
liability or disability to the Company and its subsidiaries, taken as
a whole.
(iv) The Company and each of its subsidiaries have full power
(corporate and other) to own or lease their respective properties and
conduct their respective businesses as described in the Registration
Statement and each of the Prospectus and any Integrated Prospectus or,
if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus; and the Company has
full power (corporate and other) to enter into this Agreement and to
carry out all the terms and provisions hereof to be carried out by it.
(v) The issued shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and, except for directors' qualifying shares
and as otherwise set forth in each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus, are owned beneficially by the Company free and
clear of any security interests, liens, encumbrances, equities or
claims.
(vi) The Company has an authorized, issued and outstanding
capitalization as set forth in each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus and, at the Firm Closing Date, will have a
capitalization as set forth in the "As Adjusted" column under the
heading "Capitalization" in each of the Prospectus and any Integrated
Prospectus or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus. All of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable. The Firm Securities and the Option Securities have
been duly authorized and at the Firm Closing Date or the related
Option Closing Date, as the case may be, after payment therefor in
accordance herewith, will be validly issued,
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fully paid and nonassessable. No holder of outstanding shares of
capital stock of the Company is entitled as such to any preemptive or
other rights to subscribe for any of the Securities, and no holder of
securities of the Company has any right which has not been fully
exercised or waived to require the Company to register the offer or
sale of any securities owned by such holder under the Act in the
public offering contemplated by this Agreement.
(vii) The capital stock of the Company conforms to the description
thereof contained in each of the Prospectus and any Integrated
Prospectus or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus .
(viii) Except as disclosed in each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus, as of the date hereof there are no outstanding
(A) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of
the Company or any such subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any such subsidiary any
such capital stock or any such convertible or exchangeable securities
or obligations, or (C) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such convertible
or exchangeable securities or obligations, or any such warrants,
rights or options.
(ix) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Registration
Statement and each of the Prospectus and any Integrated Prospectus or,
if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus, fairly present the
financial position of the Company and its consolidated subsidiaries
and the results of operations and changes in financial condition as of
the dates and periods therein specified. Such financial statements
and schedules have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The selected financial
data set forth under the caption "Selected Consolidated Financial
Data" in each of the Prospectus and any Integrated Prospectus or, if
the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus fairly present, on
the basis stated in such document, the information included therein.
(x) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Registration
Statement and each of the Prospectus and any Integrated Prospectus or,
if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus, are independent
public
6
accountants as required by the Act, the Exchange Act and the related
published rules and regulations thereunder.
(xi) The execution and delivery of this Agreement have been duly
authorized by the Company and this Agreement has been duly executed
and delivered by the Company, and is the valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(xii) No legal or governmental proceedings are pending to which
the Company or any of its subsidiaries is a party or to which the
property of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement, the Prospectus
or any required Integrated Prospectus and are not described therein
(or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus), and, to the
best of the Company's knowledge, no such proceedings have been
threatened against the Company or any of its subsidiaries or with
respect to any of their respective properties; and no contract or
other document is required to be described in the Registration
Statement, the Prospectus or any required Integrated Prospectus or to
be filed as an exhibit to the Registration Statement that is not
described therein (or, if the Prospectus and any required Integrated
Prospectus are not in existence, in the most recent Preliminary
Prospectus) or filed as required.
(xiii) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained, such as may be required under state securities or
blue sky laws and, if the registration statement filed with respect to
the Securities (as amended) is not effective under the Act as of the
time of execution hereof, such as may be required (and shall be
obtained as provided in this Agreement) under the Act, or (B) conflict
with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of their respective properties are
bound, or the charter documents or by-laws of the Company or any of
its subsidiaries, or any statute or any judgment, decree, order, rule
or regulation of any court or other governmental authority or any
arbitrator applicable to the Company or any of its subsidiaries.
7
(xiv) The Company has not, directly or indirectly, (A) taken any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or (B) since the filing of the
Registration Statement (1) sold, bid for, purchased, or paid anyone
any compensation for soliciting purchases of, the Securities or (2)
paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the Company (except for
the sale of Securities under this Agreement).
(xv) Subsequent to the respective dates as of which information is
given in the Registration Statement and each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus, (A) the Company and its subsidiaries have not
incurred any material liability or obligation, direct or contingent,
nor entered into any material transaction, in each case other than in
the ordinary course of business; (B) except as you have been advised
in writing, the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (C) there has not
been any material change in the capital stock, short-term debt or
long-term debt of the Company and its consolidated subsidiaries,
except in each case as described in or contemplated by each of the
Prospectus and any Integrated Prospectus or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus.
(xvi) The Company and each of its subsidiaries have good and
marketable title in fee simple to all items of real property and
marketable title to all personal property owned by each of them, in
each case free and clear of any security interests, liens,
encumbrances, equities, claims and other defects, except such as do
not materially and adversely affect the value of such property and do
not interfere with the use made or proposed to be made of such
property by the Company or such subsidiary, and any real property and
buildings held under lease by the Company or any such subsidiary are
held under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made
or proposed to be made of such property and buildings by the Company
or such subsidiary, in each case except as described in or
contemplated by each of the Prospectus and any Integrated Prospectus
or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus.
(xvii) No labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the best of the Company's knowledge,
is threatened or imminent that could result in a material adverse
change in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Company and its
subsidiaries, except as described in or contemplated by each of the
Prospectus and any Integrated Prospectus or, if the Prospectus and any
8
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus.
(xviii) The Company and its subsidiaries own, possess or have the
right to use, or can acquire on reasonable terms, all material
patents, patent applications, trademarks, service marks, trade names,
licenses, copyrights and proprietary or other confidential information
currently employed by them in connection with their respective
businesses, and neither the Company nor any such subsidiary has
received any notice of infringement of or conflict with asserted
rights of any third party with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could result in a material adverse change in the
condition (financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries, except as
described in or contemplated by each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectu s.
(xix) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect the
condition (financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries, except as
described in or contemplated by each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus.
(xx) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except
as described in or contemplated by each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus.
(xxi) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or
9
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material
adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, except as described in or contemplated by each of the
Prospectus and any Integrated Prospectus or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus.
(xxii) The Company will conduct its operations in a manner that
will not subject it to registration as an investment company under the
Investment Company Act of 1940, as amended, and the transactions
contemplated hereby will not cause the Company to become an investment
company subject to registration under such Act.
(xxiii) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole) and has paid all taxes required to be
paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being
contested in good faith or as described in or contemplated by each of
the Prospectus and any Integrated Prospectus or, if the Prospectus and
any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus.
(xxiv) Neither the Company nor any of its subsidiaries is in
violation of any foreign, federal or state law or regulation relating
to occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials and the Company and its
subsidiaries have received all permits, licenses or other approvals
required of them under applicable foreign, federal and state
occupational safety and health and environmental laws and regulations
to conduct their respective businesses, and the Company and each such
subsidiary is in compliance with all terms and conditions of any such
permit, license or approval, except any such violations of law or
regulation, failures to receive required permits, licenses or other
approvals and/or failures to comply with the terms and conditions of
such permits, licenses or approvals which would not, singly or in the
aggregate, result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole,
except as described in or contemplated by each of the Prospectus and
any Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus.
(xxv) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall
be deemed
10
to be a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
(xxvi) Except for the shares of capital stock of each of the
subsidiaries owned by the Company and such subsidiaries, neither the
Company nor any such subsidiary owns any shares of stock or any other
equity securities of any corporation or has any equity interest in any
firm, partnership, association or other entity, except as described in
or contemplated by each of the Prospectus and any Integrated
Prospectus or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus.
(xxvii) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (C) access to assets is permitted only
in accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxviii) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties is bound or may be affected in any material
adverse respect with regard to the property, business or operations of
the Company and its subsidiaries, taken as a whole.
(xxix) Neither the Company nor any of its subsidiaries is in
violation of its articles of incorporation or by-laws. Neither the
Company nor any of its subsidiaries is in violation in any respect of
any statute, law, governmental rule, regulation, order or decree of
any court or governmental agency or body to which it or its property
is subject or by which it or its property may be affected in any
material adverse respect with regard to the property, business or
operations of the Company and its subsidiaries, taken as a whole.
(xxx) The Company and the Selling Stockholders have not distributed
and, prior to the later of (A) the last Option Closing Date or, if no
Option Securities are purchased, the Firm Closing Date and (B) the
completion of the distribution of the Securities, will not distribute
any offering material in connection with the offering and sale of the
Securities other than the Registration Statement or
11
any amendment thereto, any Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto, or other materials, if any,
permitted by the Act.
(xxxi) Subsequent to the respective dates as of which information
is given in the Registration Statement and each of the Prospectus and
any Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus, neither the Company nor any of its
subsidiaries has sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding and
there has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or otherwise), management, business prospects, net worth,
or results of operations of the Company and its subsidiaries, taken as
a whole, except in each case as described in or contemplated by each
of the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus is not in existence, the most
recent Preliminary Prospectus).
(xxxi) XxXxxx, X.X., a Swiss corporation (the "Subsidiary"), is
the only subsidiary of the Company material to the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, taken as a whole; and
the complete loss of any or all subsidiaries of the Company other than
the Subsidiary would not have a material adverse effect on the
condition (financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, the Company and each of the several Underwriters that:
(ii) Such Selling Stockholder has full power to enter into this
Agreement and to sell, assign, transfer and deliver to the
Underwriters the Securities to be sold by such Selling Stockholder
hereunder in accordance with the terms of this Agreement; this
Agreement has been duly executed and delivered by such Selling
Stockholder, and is the valid and binding agreement of such Selling
Stockholder, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law); and the
execution and delivery of this Agreement have been duly authorized by
all necessary corporate or partnership action of such Selling
Stockholder.
(i) Such Selling Stockholder has duly executed and delivered a
power of attorney and custody agreement (with respect to such Selling
Stockholder, the "Power of Attorney" and the "Custody Agreement",
respectively), each in the form heretofore delivered to the
Representatives, appointing each of Xxxx P.
12
Henckels and Xxxx X. Xxxx, as such Selling Stockholder's attorney-in-
fact (each, an "Attorney-in-Fact") each with authority to execute,
deliver and perform this Agreement on behalf of such Selling
Stockholder and appointing the Company as custodian thereunder (the
"Custodian"). Certificates in negotiable form, endorsed in blank or
accompanied by blank stock powers duly executed, with signatures
appropriately guaranteed, representing the Securities to be sold by
such Selling Stockholder hereunder have been deposited with the
Custodian pursuant to the Custody Agreement for the purpose of
delivery pursuant to this Agreement. Such Selling Stockholder has full
power to enter into the Custody Agreement and the Power of Attorney
and to perform its obligations under the Custody Agreement, and the
execution and delivery of the Custody Agreement and the Power of
Attorney have been duly authorized by all necessary corporate or
partnership action of such Selling Stockholder. The Custody Agreement
and the Power of Attorney have been duly executed and delivered by
such Selling Stockholder and, assuming due authorization, execution
and delivery by the Custodian, are the legal, valid, binding and
enforceable instruments of such Selling Stockholder, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally, and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law). Such Selling Stockholder
agrees that each of the Securities represented by the certificates
deposited by such Selling Stockholder with the Custodian is subject to
the interests of the Underwriters hereunder, that the arrangements
made by such Selling Stockholder for such custody, the appointment by
such Selling Stockholder of each Attorney-in-Fact and the right, power
and authority of each Attorney-in-Fact to execute and deliver this
Agreement on behalf of such Selling Stockholder, to agree on the price
at which the Securities (including such Selling Stockholder's
Securities) are to be sold to the Underwriters, and to carry out the
terms of this Agreement, are to that extent irrevocable and that the
obligations of such Selling Stockholder hereunder shall not be
terminated, except as provided in this Agreement or the Custody
Agreement, by any act of such Selling Stockholder, by operation of law
or otherwise, or in the case of a corporate or partnership Selling
Stockholder by its liquidation or dissolution or by the occurrence of
any other event. If any such corporate or partnership Selling
Stockholder shall liquidate or dissolve, or if any other event should
occur, before the delivery of such Securities hereunder, the
certificates for such Securities deposited with the Custodian shall be
delivered by the Custodian in accordance with the respective terms and
conditions of this Agreement as if such liquidation, dissolution or
other event had not occurred, regardless of whether or not the
Custodian or the Attorneys-in-Fact shall have received notice thereof.
(iii) Such Selling Stockholder is the lawful owner of the
Securities to be sold by such Selling Stockholder hereunder and upon
sale and delivery of, and payment for, such Securities, as provided
herein, such Selling Stockholder will
13
convey good and marketable title to such Securities, free and clear of
any security interests, liens, encumbrances, equities, claims or other
defects.
(iv) Such Selling Stockholder has not, directly or indirectly, (A)
taken any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B)
since the filing of the Registration Statement (1) sold, bid for,
purchased or paid anyone any compensation for soliciting purchases of,
the Securities or (2) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities
of the Company (except for the sale of Securities under this
Agreement).
(v) The sale by such Selling Stockholder of Securities pursuant
hereto is not prompted by any adverse information concerning the
Company that is not set forth in the Registration Statement or each of
the Prospectus and any Integrated Prospectus or, if the Prospectus and
any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus.
(vi) The sale of the Securities to the Underwriters by such
Selling Stockholder pursuant to this Agreement, the compliance by such
Selling Stockholder with the other provisions of this Agreement, the
Custody Agreement and the consummation of the other transactions
herein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any
governmental authority, except such as have been obtained, such as may
be required under state securities or blue sky laws and, if the
registration statement filed with respect to the Securities (as
amended) is not effective under the Act as of the time of execution
hereof, such as may be required (and shall be obtained as provided in
this Agreement) under the Act, or (B) conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under any indenture, mortgage, deed of trust,
lease or other agreement or instrument to which such Selling
Stockholder (or any of its subsidiaries) is a party, or by which such
Selling Stockholder (or any of its subsidiaries), or any of such
Selling Stockholder's (or any of its subsidiaries') properties, are
bound, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator applicable to such Selling Stockholder (or any of its
subsidiaries), or its charter or partnership documents or by-laws or
the charter or partnership documents or by-laws of any of its
subsidiaries.
(vii) Such Selling Stockholder has not distributed and, prior to
the later of (A) the last Option Closing Date or, if no Option
Securities are purchased, the Firm Closing Date and (B) the completion
of the distribution of the Securities, will not distribute any
offering material in connection with the offering and sale of the
Securities other than the Registration Statement or any amendment
thereto, any
14
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or other materials, if any, permitted by the Act.
(viii) Such Selling Stockholder has reviewed each of the Prospectus
and any required Integrated Prospectus or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus, and the Registration Statement, and the
information regarding such Selling Stockholder set forth therein under
the caption "Principal and Selling Stockholders" is complete and
accurate.
(ix) Such Selling Stockholder does not have any right to have any
securities registered under the Registration Statement in excess of
the number of securities of such Selling Stockholder actually so
registered.
(x) Such Selling Stockholder further represents and warrants to,
and agrees with each of the several Underwriters that (A) when the
Registration Statement or any amendment thereto was or is declared
effective, it did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading, and (B) when the Prospectus, any
Term Sheet that is a part thereof or any Integrated Prospectus or any
amendment or supplement to the Prospectus is filed with the Commission
pursuant to Rule 424(b) (or, if the Prospectus or part thereof or such
amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such
amendment or supplement to the Prospectus was or is declared
effective), on the date when the Prospectus is otherwise amended or
supplemented and on the Firm Closing Date and any Option Closing Date,
the Prospectus and, if required to be filed pursuant to Rules
434(c)(2) and 424(b) under the Act, the Integrated Prospectus, as
amended or supplemented at any such time, did not or will not include
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (x) do not apply to statements
or omissions made in any Preliminary Prospectus or any amendment or
supplement thereto, the Registration Statement or any amendment
thereto, the Prospectus or any amendment or supplement thereto or, if
required to be filed under Rules 434(c)(2) and 424(b) under the Act,
the Integrated Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein.
3. Purchase, Sale and Delivery of the Securities.
---------------------------------------------
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, (A) the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters, severally (and not
15
jointly), agrees to purchase from the Company, at a purchase price of $__ per
share (the "Purchase Price"), the number of Firm Securities set forth opposite
the name of such Underwriter in column (a) of Schedule 1 hereto and (B) each of
the Selling Stockholders, severally (and not jointly), agrees to sell to the
Underwriters, the number of Firm Securities set forth opposite the name of such
Selling Stockholder on Schedule 2 hereto, and each of the Underwriters,
severally (and not jointly), agrees to purchase from such Selling Stockholders,
at the Purchase Price per share, the number of Firm Securities set forth
opposite the name of such Underwriter in column (b) of Schedule 1 hereto. One or
more certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company and such Selling Stockholders at least 48
hours prior to the Firm Closing Date, shall be delivered by or on behalf of the
Company and such Selling Stockholders to the Representatives for the respective
accounts of the Underwriters, against payment by or on behalf of the
Underwriters of the purchase price therefor by wire transfer in same-day funds
(the "Wired Funds") to the accounts of the Company and such Selling
Stockholders. Such delivery of and payment for the Firm Securities shall be made
at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx at 9:30 A.M., New York time, on March ___, 1997, or at such other
place, time or date as the Representatives and the Company may agree upon or as
the Representatives may determine pursuant to Section 9 hereof, such time and
date of delivery against payment being herein referred to as the "Firm Closing
Date." The Company and such Selling Stockholders will make such certificate or
certificates for the Firm Securities available for checking and packaging by the
Representatives at the offices in New York, New York of the Company's transfer
agent or registrar or of Prudential Securities Incorporated at least 24 hours
prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Securities. The purchase price
to be paid for any Option Securities shall be the same price per share as the
Purchase Price for the Firm Securities set forth above in paragraph (a) of this
Section 3. The option granted hereby may be exercised as to all or any part of
the Option Securities from time to time within thirty days after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading). The Underwriters shall not be under any obligation to purchase any of
the Option Securities prior to the exercise of such option. The Representatives
may from time to time exercise the option granted hereby by giving notice in
writing or by telephone (confirmed in writing) to the Company setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment for
such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and the
Company may agree upon or as the Representatives may determine pursuant to
Section 9 hereof, is herein called the "Option Closing Date" with respect to
such
16
Option Securities. Upon exercise of the option as provided herein, the
Company shall become obligated to sell to each of the several Underwriters, and,
subject to the terms and conditions herein set forth, each of the Underwriters
shall become obligated severally (and not jointly) to purchase from the Company,
the same percentage of the total number of the Option Securities as to which the
several Underwriters are then exercising the option as such Underwriter is
obligated to purchase of the aggregate number of Firm Securities, as adjusted by
the Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company and the Selling Stockholders hereby acknowledge that
the wire transfer by or on behalf of the Underwriters of the purchase price for
any Securities does not constitute closing of a purchase and sale of the
Securities. Only execution and delivery of a receipt for Securities by the
Underwriters indicates completion of the closing of a purchase of such
Securities from the Company and/or the Selling Stockholders. Furthermore, in
the event that the Underwriters wire funds to the Company or the Selling
Stockholders prior to the completion of the closing of a purchase of Securities,
the Company and the Selling Stockholders hereby acknowledge that until the
Underwriters execute and deliver a receipt for such Securities, by facsimile or
otherwise, the Company and the Selling Stockholders will not be entitled to the
wired funds and shall return the wired funds to the Underwriters as soon as
practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of Securities is not completed and the wire funds are
not returned by the Company or the Selling Stockholders to the Underwriters on
the same day the wired funds were received by the Company or the Selling
Stockholders, the Company and the Selling Stockholders agree to pay to the
Underwriters in respect of each day the wire funds are not returned by it, in
same-day funds, interest on the amount of such wired funds in an amount
representing the Underwriters' cost of financing as reasonably determined by
Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the
----------------------------
release of the Firm Securities, the several Underwriters propose to offer the
Firm Securities for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants.
---------
17
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto, to become effective as promptly
as possible. If required, the Company will file the Prospectus or any
Term Sheet that constitutes a part thereof and any amendment or
supplement thereto with the Commission in the manner and within the
time period required by Rules 434 and 424(b) under the Act. During
any time when a prospectus relating to the Securities is required to
be delivered under the Act, the Company (A) will comply with all
requirements imposed upon it by the Act, the Exchange Act and the
respective rules and regulations of the Commission thereunder to the
extent necessary to permit the continuance of sales of or dealings in
the Securities in accordance with the provisions hereof and of the
Prospectus and any Integrated Prospectus, as then amended or
supplemented, and (B) will not file with the Commission the
prospectus, Term Sheet or the amendment referred to in the second
sentence of Section 2(a)(i) hereof, any amendment or supplement to
such prospectus or Term Sheet or any amendment to the Registration
Statement or any Rule 462(b) Registration Statement of which the
Representatives shall not previously have been advised and furnished
with a copy for a reasonable period of time prior to the proposed
filing and as to which filing the Representatives shall not have given
their consent. The Company will prepare and file with the Commission,
in accordance with the rules and regulations of the Commission,
promptly upon request by the Representatives or counsel for the
Underwriters, any amendments to the Registration Statement or
amendments or supplements to the Prospectus and any Integrated
Prospectus that may be necessary or advisable in connection with the
distribution of the Securities by the several Underwriters, and will
use its best efforts to cause any such amendment to the Registration
Statement to be declared effective by the Commission as promptly as
possible. The Company will advise the Representatives, promptly after
receiving notice thereof, of the time when the Registration Statement
or any amendment thereto has been filed or declared effective or the
Prospectus and any Integrated Prospectus or any amendment or
supplement thereto has been filed and will provide evidence
satisfactory to the Representatives of each such filing or
effectiveness.
(ii) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (A) the issuance
by the Commission of any stop order suspending the effectiveness of
the Original Registration Statement or any Rule 462(b) Registration
Statement or any amendment thereto or any order directed at any
document incorporated by reference in the Registration Statement, the
Prospectus or any required Integrated Prospectus or any order
preventing or suspending the use of any Preliminary Prospectus, the
Prospectus or any required Integrated Prospectus or any amendment or
supplement thereto, (B) the suspension of the qualification of the
18
Securities for offering or sale in any jurisdiction, (C) the
institution, threatening or contemplation of any proceeding for any
such purpose or (D) any request made by the Commission for amending
the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing any Preliminary Prospectuses,
the Prospectus or any required Integrated Prospectus or for additional
information. The Company will use its best efforts to prevent the
issuance of any such stop order and, if any such stop order is issued,
to obtain the withdrawal thereof as promptly as possible.
(iii) The Company will use its best efforts to qualify the Securities
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and to continue
such qualifications in effect for as long as may be necessary to
complete the distribution of the Securities, provided, however, that
-------- -------
in connection therewith the Company shall not be required to qualify
as a foreign corporation or to execute a general consent to service of
process in any jurisdiction.
(iv) If, at any time prior to the later of (A) the final date when a
prospectus relating to the Securities is required to be delivered
under the Act or (B) the last Option Closing Date, any event occurs as
a result of which the Prospectus or any required Integrated
Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if for
any other reason it is necessary at any time to amend or supplement
the Prospectus or any Integrated Prospectus to comply with the Act,
the Exchange Act or the respective rules or regulations of the
Commission thereunder, the Company will promptly notify the
Representatives thereof and, subject to Section 5(a)(i) hereof, will
prepare and file with the Commission, at the Company's expense, an
amendment to the Registration Statement or an amendment or supplement
to the Prospectus or any required Integrated Prospectus that corrects
such statement or omission or effects such compliance.
(v) The Company will, without charge, provide (A) to the
Representatives and to counsel for the Underwriters a signed copy of
the registration statement originally filed with respect to the
Securities and each amendment thereto (in each case including exhibits
thereto), (B) to each other Underwriter, a conformed copy of such
registration statement and each amendment thereto (in each case
without exhibits thereto) and (C) so long as a prospectus relating to
the Securities is required to be delivered under the Act, as many
copies of each Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request; without limiting the
application of clause (C) of this sentence, the Company, not later
than (1) 6:00 P.M., New York City time, on the date of determination
of the public offering price, if such determination occurred at or
19
prior to 12:00 Noon, New York City time, on such date or (2) 6:00
P.M., New York City time, on the business day following the date of
determination of the public offering price, if such determination
occurred after 12:00 Noon, New York City time, on such date, will
deliver to the Representatives, without charge, as many copies of the
Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming
orders that are expected to settle on the Firm Closing Date.
(vi) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives a
consolidated earnings statement of the Company and its subsidiaries
that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(vii) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus and
any Integrated Prospectus.
(viii) The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf
of the Underwriters, offer, sell, offer to sell, contract to sell,
pledge, grant any option to purchase or otherwise sell or dispose (or
announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any option to purchase or other sale or disposition) of any
shares of Common Stock or other capital stock of the Company
substantially similar thereto or any securities convertible into, or
exchangeable or exercisable for, or any right to purchase or acquire,
any shares of Common Stock or other capital stock of the Company for a
period of 90 days after the date hereof, except that during such
period the Company may (i) issue and sell shares of Common Stock to
the Underwriters pursuant to this Agreement, (ii) grant options and
make restricted stock awards pursuant to the Company's stock option
and purchase plans described in (or described in a document
incorporated by reference in) each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus, and issue and sell shares of Common Stock upon
exercise of such options and (iii) issue and sell shares of Common
Stock to the XxXxxx Corporation Employee Stock Ownership Trust;
provided, that with respect to any issuance, grant, award or sale
pursuant to clause (ii) of this paragraph, the Company agrees to use
its best efforts to obtain from the beneficial owner of such options
or Common Stock an agreement similar in substance to the agreements
described in Section 7(i) hereof.
(ix) The Company will obtain the agreements described in Section
7(i) hereof prior to the Firm Closing Date.
(x) The Company will not, directly or indirectly, (A) take any
action designed to cause or to result in, or that has constituted or
which might reasonably
20
be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities or (B) (1) sell, bid for, purchase, or pay anyone
any compensation for soliciting purchases of, the Securities or (2)
pay or agree to pay to any person any compensation for soliciting
another to purchase any other securities of the Company (except for
the sale of Securities under this Agreement).
(xi) If at any time prior to the Option Closing Date, any rumor,
publication or event relating to or affecting the Company shall occur
as a result of which in your opinion the market price of the Common
Stock has been or is likely to be materially affected (regardless of
whether such rumor, publication or event necessitates a supplement to
or amendment of the Prospectus and any Integrated Prospectus), the
Company will, after written notice from you advising the Company to
the effect set forth above, forthwith prepare, consult with you
concerning the substance of, and disseminate a press release or other
public statement, reasonably satisfactory to you, responding to or
commenting on such rumor, publication or event.
(xii) The Company will cause the Securities to be duly included for
quotation on the Nasdaq Stock Market's National Market (the "Nasdaq
National Market") prior to the Firm Closing Date. The Company will
use its best efforts to ensure that the Securities remain included for
quotation on the Nasdaq National Market following the Firm Closing
Date.
(xiii) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees
in accordance with Rule 111 promulgated under the Act by the earlier
of (i) 10:00 P.M. Eastern time on the date of this Agreement and (ii)
the time confirmations are sent or given, as specified by Rule
462(b)(2).
(b) Each of the Selling Stockholders, severally (and not jointly)
covenants and agrees with each of the Underwriters that:
(i) Such Selling Stockholder will not, directly or indirectly,
without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale,
pledge, contract of sale, grant of any option to purchase or other
sale or disposition) of any shares of Common Stock or other capital
stock of the Company substantially similar thereto or any securities
convertible into, or exchangeable or exercisable for, or any right to
purchase or acquire, any shares of Common Stock or other capital stock
of the Company for a period of 90 days after the date hereof, except
pursuant to this Agreement.
21
(ii) Such Selling Stockholder will not, directly or indirectly,
(A) take any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B) (1)
sell, bid for, purchase, or pay anyone any compensation for soliciting
purchases of, the Securities or (2) pay or agree to pay to any person
any compensation for soliciting another to purchase any other
securities of the Company (except for the sale of Securities under
this Agreement).
(iii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of
1986, as amended, with respect to the transactions herein
contemplated, such Selling Stockholder agrees to deliver to you prior
to or on the Firm Closing Date a properly completed and executed
United States Treasury Department Form W-8 or W-9 (or other applicable
form of statement specified by Treasury Department regulations in lieu
thereof).
(iv) As soon as such Selling Stockholder is advised thereof, such
Selling Stockholder will advise the Representatives (and immediately
thereafter confirm such advice in writing) (A) of receipt by such
Selling Stockholder or by any representative or agent of such Selling
Stockholder of any communication from the Commission relating to the
Registration Statement, the Prospectus, any required Integrated
Prospectus or any Preliminary Prospectus, or any notice or order of
the Commission relating to the Company or the Selling Stockholders in
connection with the transactions contemplated by this Agreement and
(B) of the happening of any event which makes or may make any
statement made in the Registration Statement, the Prospectus, any
required Integrated Prospectus or any Preliminary Prospectus untrue or
that requires the making of any change in the Registration Statement,
the Prospectus, any required Integrated Prospectus or Preliminary
Prospectus, as the case may be, in order to make such statement, in
light of the circumstances in which it was made, not misleading.
6. Expenses. The Company will pay all costs and expenses incident to
--------
the performance of its and the Selling Stockholders' obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 11 hereof, including all
costs and expenses incident to (i) the printing or other production of documents
with respect to the transactions, including any costs of printing or other
production of the registration statement originally filed with respect to the
Securities and any amendment thereto, any Rule 462(b) Registration Statement,
any Preliminary Prospectus, the Prospectus, any required Integrated Prospectus
and any amendment or supplement thereto, this Agreement and any blue sky
memoranda, (ii) all arrangements relating to the delivery to the Underwriters of
copies of the foregoing documents, (iii) the fees and disbursements of counsel,
the accountants and any other experts or advisors retained by the Company and of
one counsel for the Selling Stockholders, (iv) preparation, issuance and
delivery to the Underwriters of any certificates evidencing the Securities,
including transfer agent's and registrar's fees, (v)
22
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriters
relating thereto, (vi) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities, (vii) any
quotation of the Securities on the Nasdaq National Market, (viii) any meetings
with prospective investors in the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the Underwriters)
and (ix) advertising relating to the offering of the Securities (other than as
shall have been specifically approved by the Representatives to be paid for by
the Underwriters). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 11 hereof or because of any failure, refusal or inability on
the part of the Company or any Selling Stockholder to perform all obligations
and satisfy all conditions to be performed or satisfied hereunder by the Company
or such Selling Stockholder other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including counsel fees and disbursements) that
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities. The Company shall not in any event be liable to any of
the Underwriters for the loss of anticipated profits from the transactions
covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of
-------------------------------------------
the several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Selling Stockholders
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's officers and the Selling Stockholders made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective covenants and agreements hereunder and to the
following additional conditions:
(a) If the Original Registration Statement or any amendment thereto
filed prior to the Firm Closing Date has not been declared effective as of the
time of execution hereof, the Original Registration Statement or such amendment
and, if the Company has elected to rely on Rule 462(b), the Rule 462(b)
Registration Statement, shall have been declared effective not later than the
earlier of (i) 11:00 A.M., New York City time, on the date on which the
amendment to the registration statement originally filed with respect to the
Securities or to the Registration Statement, as the case may be, containing
information regarding the initial public offering price of the Securities has
been filed with the Commission and (ii) the time confirmations are sent or given
as specified by Rule 462(b)(2), or with respect to the Original Registration
Statement, or such later time and date as shall have been consented to by the
Representatives; if required, the Prospectus or any Term Sheet that constitutes
a part thereof and any Integrated Prospectus and any amendment or supplement
thereto shall have been filed with the Commission in the manner and within the
time period required by Rules 434 and 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto and no order directed at any document incorporated by reference in the
Registration Statement, the Prospectus or any Integrated Prospectus shall have
been issued, and no proceedings for that
23
purpose shall have been instituted or threatened or, to the knowledge of the
Company, any of the Selling Stockholders or the Representatives, shall be
contemplated by the Commission; and the Company shall have complied with any
request of the Commission for additional information (to be included in the
Registration Statement, the Prospectus, any Integrated Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Xxxxxxx, Xxxx & Xxxxx, counsel for the Company, to the
effect that:
(i) the Company has been duly organized and is validly existing as a
corporation in corporate good standing under the laws of the State of
Delaware and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its businesses requires such qualification, except where
the failure to be so qualified does not amount to a material liability
or disability to the Company and its subsidiaries, taken as a whole;
(ii) the Company has the corporate power to own or lease its
properties and conduct its businesses as described in the Registration
Statement and the Prospectus, and the Company has corporate power to
enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it;
(iii) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus and any Integrated
Prospectus; all of the issued shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable and were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase
securities; the Firm Securities have been duly authorized by all
necessary corporate action of the Company and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable; no
holders of outstanding shares of capital stock of the Company are
entitled as such under the Certificate of Incorporation or the by-laws
of the Company or the General Corporation Law of the State of Delaware
or, to the best knowledge of such counsel, otherwise, to any
preemptive or other rights to subscribe for any of the Securities;
and, to the best knowledge of such counsel, no holders of securities
of the Company are entitled to have such securities registered under
the Registration Statement except such securities as are actually so
registered;
(iv) the statements set forth under the heading "Description of
Capital Stock" in the Prospectus and any Integrated Prospectus,
insofar as such statements purport to summarize certain provisions of
the capital stock of the Company, are correct in all material
respects, and the statements set forth under the headings "Business -
Legal Proceedings," "Management - Stock Plans" and "Certain
24
Transactions" in the Prospectus and any Integrated Prospectus and any
document incorporated by reference therein, insofar as such statements
constitute descriptions of statutes, rules or regulations, documents,
proceedings or legal conclusions, are correct in all material
respects;
(v) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the Company;
(vi) to the best knowledge of such counsel, (A) no legal or
governmental proceedings are pending to which the Company or the
Subsidiary is a party or to which the property of the Company or the
Subsidiary is subject that are required to be described in the
Registration Statement or the Prospectus or any Integrated Prospectus
and are not described therein, and, no such proceedings have been
threatened in writing against the Company or the Subsidiary or with
respect to any of their respective properties and (B) no contract or
other document is required to be described in the Registration
Statement or the Prospectus or any Integrated Prospectus or to be
filed as an exhibit to the Registration Statement that is not
described therein or filed as required;
(vii) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained and such as may be required under state securities
or blue sky laws, or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument, known to such counsel, to which the Company
or the Subsidiary is a party or by which the Company or the Subsidiary
or any of their respective properties are bound, or the charter
documents or by-laws of the Company, or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator known to such counsel and applicable to
the Company or the Subsidiary;
(viii) the Registration Statement is effective under the Act; any
required filing of the Prospectus or any Term Sheet that constitutes a
part thereof pursuant to Rules 434 and 424(b) and any Integrated
Prospectus has been made in the manner and within the time period
required by Rules 434 and 424(b); and no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto
and no order directed at any document incorporated by reference in the
Registration Statement, the Prospectus or any Integrated Prospectus
has been issued, and no proceedings for that purpose have been
25
instituted or, to the best knowledge of such counsel, threatened or
are contemplated by the Commission;
(xi) the Registration Statement and each amendment thereto, any
Rule 462(b) Registration Statement, the Prospectus and any Integrated
Prospectus (in each case, other than the financial statements and
related schedules and other financial, statistical and accounting
information contained therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the
respective rules and regulations of the Commission thereunder; and
(x) no holder of outstanding shares of capital stock of the
Company is entitled as such to any preemptive or other rights to
subscribe for any of the Securities, and, to the best knowledge of
such counsel, no holder of securities of the Company has any right
which has not been exercised or waived to require the Company to
register the offer or sale of any securities owned by such holder
under the Act in the public offering contemplated by this Agreement.
Such counsel shall also state (it being understood that such counsel
will not have independently verified the accuracy or completeness of the
information contained in the Registration Statement, the Prospectus or any
Integrated Prospectus, and except as otherwise expressly set forth in such
counsel's opinion, it is not responsible for, and need not pass upon, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or any Integrated Prospectus), that they
have no reason to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus and any Integrated Prospectus, as
of its date or the date of such opinion, included or includes any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than The Commonwealth of
Massachusetts, the State of Delaware or the United States, to the extent such
counsel deems proper and specifies in such opinion, upon the opinion of other
counsel of good standing whom such counsel believes to be reliable and who is
satisfactory to counsel for the Underwriters. The foregoing opinion also shall
state that such counsel believes that the Underwriters are justified in relying
upon the opinion of such other counsel, and copies of the opinion of such other
counsel shall be delivered to the Representatives and counsel for the
Underwriters.
26
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Representatives shall have received an opinion, dated the
Firm Closing Date, of ATAG Ernst & Xxxxx XX, counsel for the Subsidiary, to the
effect that:
(i) the Subsidiary has been duly organized and is validly
existing as corporation in good standing under the laws of Switzerland
and is duly qualified to transact business as a foreign corporation
and is in good standing under the laws of all other jurisdictions
where the ownership or leasing of its properties or the conduct of its
businesses requires such qualification, except where the failure to be
so qualified does not amount to a material liability or disability to
the Company and its subsidiaries, taken as a whole;
(ii) the Subsidiary has the corporate power to own or lease its
properties and conduct its businesses as described in the Registration
Statement, the Prospectus and any Integrated Prospectus;
(iii) the issued shares of capital stock of the Subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable
and, except for directors' qualifying shares and as otherwise set
forth in the Prospectus and any Integrated Prospectus, are owned
beneficially by the Company free and clear of any perfected security
interests or, to the best knowledge of such counsel, any other
security interests, liens, encumbrances, equities or claims;
(iv) no legal or governmental proceedings are pending to which the
Subsidiary is a party or to which the property of the Subsidiary is
subject that are required to be described in the Registration
Statement or the Prospectus or any Integrated Prospectus and are not
described therein, and, to the best knowledge of such counsel, no such
proceedings have been threatened in writing against the Subsidiary or
with respect to any of its properties; and
(v) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not
conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or instrument, known
to such counsel, to which the Subsidiary is a party or by which the
Subsidiary or any of its properties are bound, or the charter
documents or by-laws of the Subsidiary, or any statute or any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to the Subsidiary.
27
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than Switzerland, to the extent
such counsel deems proper and specifies in such opinion, upon the opinion of
other counsel of good standing whom such counsel believes to be reliable and who
is satisfactory to counsel for the Underwriters. The foregoing opinion also
shall state that such counsel believes that the Underwriters are justified in
relying upon the opinion of such other counsel, and copies of the opinion of
such other counsel shall be delivered to the Representatives and counsel for the
Underwriters.
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (c) shall include any amendment or
supplement thereto at the date of such opinion.
(d) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Xxxxxx, Xxxxxx & Xxxxxxx, P.C., special patent counsel for
the Company, to the effect that:
(i) the Company owns or possesses licenses or other rights to use
all intellectual property described in the Registration Statement, the
Prospectus and any Integrated Prospectus as being owned by or licensed
to the Company or used or proposed to be used by the Company;
(ii) to the best knowledge of such counsel after due inquiry,
there is no pending or threatened action, suit, proceeding or claim by
others (1) challenging the scope or validity of any patents or patent
applications owned by the Company or claiming a proprietary interest
in any such patents or patent applications or otherwise challenging
any rights claimed by the Company in or to any intellectual property,
or (2) alleging that the Company infringes or otherwise violates the
rights of any other person in or to any intellectual property; and
(iii) the statements set forth under the headings "Risk Factors -
Uncertainties Regarding Patents and Protection of Proprietary
Technology" and "Business - Intellectual Property Rights" in the
Prospectus and any Integrated Prospectus and in any document
incorporated by reference therein, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, provide a fair summary of such legal matters,
documents and proceedings.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than the State of New York or the
United States, to the extent such counsel deems proper and specifies in such
opinion, upon the opinion of other counsel of good standing whom such counsel
believes to be reliable and who is satisfactory to counsel for the Underwriters.
The foregoing opinion also shall state that such counsel believes the
Underwriters are justified in relying upon
28
the opinion of such other counsel, and copies of the opinion of such other
counsel shall be delivered to the Representatives and counsel for the
Underwriters.
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (d) shall include any amendment or
supplement thereto at the date of such opinion.
(e) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Xxxxxxx, Procter & Xxxx, counsel for the Selling
Stockholders to the effect that:
(i) each Selling Stockholder has full power to enter into this
Agreement, the Custody Agreement and the Power of Attorney and to
sell, transfer and deliver any Securities being sold by such Selling
Stockholder hereunder in the manner provided in this Agreement and to
perform such Selling Stockholder's obligations under the Custody
Agreement; this Agreement, the Custody Agreement and the Power of
Attorney have been duly executed and delivered by each Selling
Stockholder; assuming due authorization, execution and delivery by the
Custodian, the Custody Agreement and the Power of Attorney are the
legal, valid, binding and enforceable instruments of each Selling
Stockholder, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(ii) the delivery to the several Underwriters by each Selling
Stockholder of certificates for any Securities being sold hereunder by
such Selling Stockholder against payment therefor as provided herein,
will convey good and marketable title to such Securities to the
several Underwriters, free and clear of all security interests, liens,
encumbrances, equities, claims or other defects (assuming that the
Underwriters purchase such securities for value and in good faith
without notice of any adverse claim); and
(iii) the sale of any Securities to the Underwriters by each Selling
Stockholder pursuant to this Agreement, the compliance by such Selling
Stockholder with the provisions of this Agreement and the Custody
Agreement and the consummation of the other transactions herein
contemplated do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained and such as may be required under
state securities or blue sky laws, or (B) conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under any indenture, mortgage, deed of trust,
lease or other agreement or instrument known to such counsel to which
such Selling Stockholder (or any of its subsidiaries) is a party, or
by which such Selling Stockholder (or any of its subsidiaries), or any
of such Selling Stockholder's (or any of its subsidiaries')
properties, are bound, or any statute or any judgment, decree, order,
rule or regulation of any court or other governmental authority or any
arbitrator known to
29
such counsel and applicable to such Selling Stockholder (or any of its
subsidiaries), or its charter or partnership documents or by-laws or
the charter or partnership documents or by-laws of any of its
subsidiaries.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of laws of any jurisdiction other than The Commonwealth of
Massachusetts, the State of Delaware or the United States, to the extent such
counsel deems proper and specifies in such opinion, upon the opinion of other
counsel of good standing whom such counsel believes to be reliable and who is
satisfactory to counsel for the Underwriters. The foregoing opinion also shall
state that such counsel believes that the Underwriters are justified in relying
upon the opinion of such other counsel, and copies of the opinion of such other
counsel shall be delivered to the Representatives and counsel for the
Underwriters.
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (e) shall include any amendment or
supplement thereto at the date of such opinion.
(f) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, with respect to the issuance and sale of the Firm Securities, the
Registration Statement, the Prospectus and any Integrated Prospectus, and such
other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel all such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received from Ernst & Young LLP a
letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company
and its consolidated subsidiaries within the meaning of the Act, the
Exchange Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules examined by them and included or incorporated
in the Registration Statement, the Prospectus and any Integrated
Prospectus comply in form in all material respects with the applicable
accounting requirements of the Act, the Exchange Act and the related
published rules and regulations;
(iii) on the basis of a reading of the latest available interim
unaudited consolidated financial statements of the Company and its
consolidated subsidiaries, carrying out certain specified procedures
(which do not constitute an examination made in accordance with
generally accepted auditing standards) that would not necessarily
reveal matters of significance with respect to the comments set forth
in
30
this paragraph (iii), a reading of the minute books of the
shareholders, the board of directors and any committees thereof of the
Company and each of its consolidated subsidiaries, and inquiries of
certain officials of the Company and its consolidated subsidiaries who
have responsibility for financial and accounting matters, nothing came
to their attention that caused them to believe that: (A) the
unaudited consolidated financial statements of the Company and its
consolidated subsidiaries included or incorporated in the Registration
Statement, the Prospectus and any Integrated Prospectus do not comply
in form in all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the related published
rules and regulations thereunder or are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements included or incorporated in the Registration
Statement, the Prospectus and any Integrated Prospectus; and (B) at a
specific date not more than five business days prior to the date of
such letter, there were any changes in the capital stock or long-term
debt of the Company and its consolidated subsidiaries or any decreases
in net current assets or stockholders' equity of the Company and its
consolidated subsidiaries, in each case compared with amounts shown on
the December 31, 1996 unaudited consolidated balance sheet included in
the Registration Statement and the Prospectus, or for the period from
January 1, 1997 to such specified date there were any decreases, as
compared with the corresponding period in the preceding year in
digital oscilloscopes and related products revenues, high energy
physics products revenues, service and other revenues, total revenues,
income before income taxes or total or per share amounts of net income
of the Company and its consolidated subsidiaries, except in all
instances for changes, decreases or increases set forth in such
letter; and
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information that are derived from the general accounting
records of the Company and its consolidated subsidiaries and are
included in the Registration Statement, the Prospectus, any Integrated
Prospectus and any document incorporated by reference in the
Registration Statement, and have compared such amounts, percentages
and financial information with such records of the Company and its
consolidated subsidiaries and with information derived from such
records and have found them to be in agreement, excluding any
questions of legal interpretation.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
31
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (g) with respect to either letter
referred to above shall include any amendment or supplement thereto at the date
of such letter.
(h) The Representatives shall have received a certificate, dated the
Firm Closing Date, of Xxxx P. Henckels, the President and Chief Executive
Officer of the Company and Xxxx X. Xxxx, Vice President - Finance/Chief
Financial Officer and Treasurer of the Company, to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm
Closing Date; the Registration Statement, as amended as of the Firm
Closing Date, does not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein not misleading, and the Prospectus and any Integrated
Prospectus, as amended or supplemented as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and the Company has performed all covenants and
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto and no order directed at any
document incorporated by reference in the Registration Statement, the
Prospectus or any Integrated Prospectus has been issued, and no
proceedings for that purpose have been instituted or, to the best of
the Company's knowledge, threatened or are contemplated by the
Commission; and
(iii) subsequent to the respective dates as of which information is
given in the Registration Statement, the Prospectus and any Integrated
Prospectus, neither the Company nor any of its subsidiaries has
sustained any material loss or interference with their respective
businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not
been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Company or any of its subsidiaries, except in each
case as described in or contemplated by the Prospectus and any
Integrated Prospectus.
(i) The Representatives shall have received from each person who is a
director or executive officer of the Company and from each holder of 5% or more
of the Company's Common Stock, an agreement to the effect that such person will
not, directly or indirectly, without the prior written consent of Prudential
Securities Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or
32
otherwise sell or dispose (or announce any offer, sale, offer of sale, contract
of sale, pledge, grant of an option to purchase or other sale or disposition) of
any shares of Common Stock or other capital stock of the Company substantially
similar thereto or any securities convertible into, or exchangeable or
exercisable for, or any right to purchase or acquire, any shares of Common Stock
or other capital stock of the Company for a period of 90 days after the date
hereof; except in each case for bona fide gifts and transfers by will or by the
laws of descent and distribution, provided that the donee, heir or legatee
agrees in writing to be bound by similar restrictions on transfer.
(j) The Representatives shall have received a certificate from each
Selling Stockholder, signed by such Selling Stockholder, dated the Firm Closing
Date, to the effect that:
(i) the representations and warranties of such Selling Stockholder
in this Agreement are true and correct as if made on and as of the
Firm Closing Date;
(ii) the Registration Statement, as amended as of the Firm Closing
Date, does not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein
not misleading, and the Prospectus and any Integrated Prospectus, as
amended or supplemented as of the Firm Closing Date, does not include
any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
(iii) such Selling Stockholder has performed all covenants and
agreements on its part to be performed or satisfied on or prior to the
Firm Closing Date.
(k) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading on the Nasdaq National Market.
(l) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
33
8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees 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 against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto or any Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or any amendment or supplement thereto or (B)
any application or other document, or any amendment or supplement
thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in
order to qualify the Securities under the securities or blue sky laws
thereof or filed with the Commission or any securities association or
securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any Integrated Prospectus or any amendment or supplement
thereto, or any Application a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials provided by
the Company and used in connection with the marketing of the
Securities, including without limitation, slides, videos, films and
tape recordings, or
(v) any claim that the acquisition of shares of Common Stock by
the Company from the XxXxxx Corporation Employee Stock Ownership Trust
as described in the Registration Statement or any amendment thereto or
any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus or any amendment or supplement thereto violates Title I of
the Employee Retirement Income Security Act of 1974, as amended, or
gives rise to an excise tax under Section 4975 of the Internal Revenue
Code of 1986,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the
-------- -------
34
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any Integrated Prospectus or any amendment or supplement thereto,
or any Application in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein; and provided, further, that the Company will not
-------- -------
be liable to any Underwriter or any person controlling such Underwriter with
respect to any such untrue statement or omission made in any Preliminary
Prospectus that is corrected in the Prospectus (or any amendment or supplement
thereto) if the person asserting any such loss, claim, damage or liability
purchased Securities from such Underwriter but was not sent or given a copy of
the Prospectus (as amended or supplemented), other than the documents
incorporated by reference therein, at or prior to the written confirmation of
the sale of such Securities to such person in any case where such delivery of
the Prospectus (as amended or supplemented) is required by the Act, unless such
failure to deliver the prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 5(a)(iv) or Section 5(a)(v) of this
Agreement. This indemnity agreement will be in addition to any liability which
the Company may otherwise have. The Company will not, without the prior written
consent of the Underwriter or Underwriters purchasing, in the aggregate, more
than fifty percent (50%) of the Securities, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Underwriter or any person who controls any such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding.
(b) Each of the Selling Stockholders, severally, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, each Underwriter, each other Selling
Stockholder and each person who controls the Company, any Underwriter or such
other Selling Stockholder within the meaning of the Act or the Exchange Act
against any losses, claims, damages or liabilities to which the Company, any
such director, officer, such Underwriter, such other Selling Stockholder or any
such controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the Prospectus
or any Integrated Prospectus or any amendment or supplement thereto, or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus or any amendment or supplement thereto, or any Application or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
35
Selling Stockholder specifically for use therein; provided, however, that such
-------- -------
Selling Stockholder will not be liable to any Underwriter or any
person controlling such Underwriter with respect to any such untrue statement or
omission made in any Preliminary Prospectus that is corrected in the Prospectus
(or any amendment or supplement thereto) if the person asserting any such loss,
claim, damage or liability purchased Securities from such Underwriter but was
not sent or given a copy of the Prospectus (as amended or supplemented), other
than the documents incorporated by reference therein, at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Act, unless such failure to deliver the Prospectus (as amended or supplemented)
was a result of noncompliance by the Company with Section 5(a)(iv) or Section
5(a)(v) of this Agreement; and, subject to the limitation set forth immediately
preceding this clause, will reimburse, as incurred, any legal or other expenses
reasonably incurred by the Company, any such director, officer, such
Underwriter, such other Selling Stockholder or any such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or any action in respect thereof. Notwithstanding any other provision
of this paragraph (b), no Selling Stockholder shall be liable for
indemnification hereunder in an aggregate amount exceeding the net proceeds
(before deducting expenses) received by such Selling Stockholder in respect of
the Securities sold by such Selling Stockholder to the Underwriters pursuant to
this Agreement. This indemnity agreement will be in addition to any liability
which such Selling Stockholder may otherwise have. Such Selling Stockholder will
not, without the prior written consent of the Underwriter or Underwriters
purchasing, in the aggregate, more than fifty percent (50%) of the Securities,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not any such Underwriter or any person who
controls any such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
(c) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, each Selling Stockholder and each person, if
any, who controls the Company or such Selling Stockholder within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which the Company, such Selling Stockholder,
any such director or officer of the Company or any such controlling person of
the Company or such Selling Stockholder may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto, or any Application or (ii) the omission or the alleged
omission to state therein a material fact required to be stated in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any Integrated Prospectus or any amendment or supplement thereto,
or any Application necessary to make the statements therein not misleading, in
each case to the extent,
36
but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein; and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company, any such director, officer
or controlling person or such Selling Stockholder in connection with
investigating or defending any such loss, claim, damage, liability or any action
in respect thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
-------- -------
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) or (b) of this Section 8, representing the indemnified parties
under such paragraph (a) or (b) who are Underwriters or persons controlling any
Underwriter and who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
37
(e) In circumstances in which the indemnity agreements provided for
in the preceding paragraphs of this Section 8 are unavailable or insufficient,
for any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or the
Underwriters, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company, the
Selling Stockholders and the Underwriters agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (e).
Notwithstanding any other provision of this paragraph (e), no Selling
Stockholder shall be obligated to make contributions hereunder that in the
aggregate exceed the net proceeds (before deducting expenses) received by such
Selling Stockholder in respect of the Securities sold by such Selling
Stockholder to the Underwriters pursuant to this Agreement. Notwithstanding any
other provision of this paragraph (e), no Underwriter shall be obligated to make
contributions hereunder that in the aggregate exceed the total public offering
price of the Securities purchased by such Underwriter under this Agreement, less
the aggregate amount of any damages that such Underwriter has otherwise been
required to pay in respect of the same or any substantially similar claim, and
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 hereunder are several in proportion to their respective underwriting
obligations and not joint, and contributions among Underwriters shall be
governed by the provisions of the Prudential Securities Incorporated Master
Agreement Among Underwriters. For purposes of this paragraph (d), each person,
if any, who controls an Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder within
38
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall
have the same rights to contribution as the Company or such Selling Stockholder,
as the case may be.
(f) The liability of each Selling Stockholder to the Underwriters for
the representations, warranties and agreements contained in Section 2(b)(x)
hereof, for any misstatements, omissions or inaccuracies in any statement made
pursuant to Section 7(j) hereof and under the indemnity and contribution
agreements set forth in this Section 8, shall not exceed, in the aggregate, the
net proceeds (before deducting expenses) received by such Selling Stockholder in
respect of the Securities sold by such Selling Stockholder to the Underwriters
pursuant to this Agreement.
9. Default of Underwriters. If one or more Underwriters default in
-----------------------
their obligations to purchase Firm Securities or Option Securities hereunder and
the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof. In the event of any default by one or more Underwriters
as described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 3 hereof for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties,
--------
agreements, covenants, indemnities and other statements of the Company, its
officers, the Selling Stockholders and the several Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Selling Stockholder, any Underwriter or any controlling person
referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
39
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
11. Termination.
-----------
(a) This Agreement may be terminated with respect to the Firm
Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company and the Selling Stockholders given
prior to the Firm Closing Date or the related Option Closing Date, respectively,
in the event that the Company or any Selling Stockholder shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder at or prior thereto or, if at or
prior to the Firm Closing Date or such Option Closing Date, respectively,
(i) the Company or any of its subsidiaries shall have, in the sole
judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any material adverse change, or
any development involving a prospective material adverse change
(including without limitation a change in management or control of the
Company), in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, except in each case as described in or contemplated by
the Prospectus and any Integrated Prospectus (exclusive of any
amendment or supplement thereto);
(ii) trading in the Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities
generally on the New York Stock Exchange or Nasdaq National Market
shall have been suspended or minimum or maximum prices shall have been
established on any such exchange or market system;
(iii) a banking moratorium shall have been declared by New York or
United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the United States financial markets
that, in the sole judgment of the Representatives, makes it
impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Registration
Statement, as amended as of the date hereof.
40
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by Underwriters. The statements set forth
------------------------------------
in the last paragraph on the front cover page, in the paragraph on the inside
front cover regarding stabilization and under the heading "Underwriting" in any
Preliminary Prospectus, the Prospectus or any Integrated Prospectus (to the
extent such statements relate to the Underwriters) constitute the only
information furnished by any Underwriter through the Representatives to the
Company for the purposes of Sections 2(a)(ii) and 8 hereof. The Underwriters
confirm that such statements (to such extent) are correct.
13. Notices. All communications hereunder shall be in writing and,
-------
if sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; and if sent to the Company or the Selling Stockholders,
shall be delivered or sent by mail, telex or facsimile transmission and
confirmed in writing to the Company at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx Xxxxx,
Xxx Xxxx 00000, Attention: President and Chief Executive Officer.
14. Successors. This Agreement shall inure to the benefit of and
----------
shall be binding upon the several Underwriters, the Company, the several Selling
Stockholders and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person except that (i) the indemnities of the Company and the Selling
Stockholders contained in Section 8 of this Agreement shall also be for the
benefit of any person who controls or persons who control any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii)
the indemnities of the Underwriters contained in Section 8 of this Agreement
shall also be for the benefit of the directors of the Company, the officers of
the Company who have signed the Registration Statement, any person who controls
or persons who control the Company or any Selling Stockholder within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and the Selling
Stockholders. No purchaser of Securities from any Underwriter shall be deemed a
successor because of such purchase.
15. Applicable Law. The validity and interpretation of this
--------------
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to any provisions relating to conflicts of laws.
41
16. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
42
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company, each of
the Selling Stockholders and each of the several Underwriters.
Very truly yours,
XxXXXX CORPORATION
By_______________________________
Name:
Title:
SELLING STOCKHOLDERS:
ADVENT INTERNATIONAL INVESTORS II
LIMITED PARTNERSHIP
By_______________________________
Name:
Title:
GLOBAL PRIVATE EQUITY II
LIMITED PARTNERSHIP
By_______________________________
Name:
Title:
00
XXXXXX XXXX DEVELOPMENT AND
INVESTMENT LIMITED PARTNERSHIP
By_______________________________
Name:
Title:
INNOVENT CAPITAL LIMITED
By_______________________________
Name:
Title:
44
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
XXXXX & COMPANY
SALOMON BROTHERS INC
XXXXXXX & COMPANY, INC.
By PRUDENTIAL SECURITIES INCORPORATED
By_______________________________
Name: Xxxx Xxxxxx Xxxxxx
Title: Managing Director
For itself and on behalf of the Representatives.
45
SCHEDULE 1
UNDERWRITERS
(a) (b)
Number of Firm Number of Firm
Securities to be Securities to be
Purchased from Purchased from
Undrwriter Company Selling Stockholders
---------- ----------------- ------------------
Prudential Securities Incorporated
Xxxxx & Company........................
Salomon Brothers Inc...................
Xxxxxxx & Company, Inc.................
----------------- ------------------
658,838 1,341,162
================= ==================
SCHEDULE 2
SELLING STOCKHOLDERS
Number of Firm
Name Securities to be sold
---- ---------------------
Advent International Investors II
Limited Partnership.............................
Global Private Equity II Limited
Partnership.....................................
Golden Gate Development and Investment
Limited Partnership.............................
Innovent Capital Limited.........................
---------------------
Total 1,341,162
=====================
