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Exhibit 1.1
XXXXXXX CORPORATION
COMMON STOCK
(No Par Value)
UNDERWRITING AGREEMENT
-----------------, 1997
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UNDERWRITING AGREEMENT
____________, 1997
Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
The Xxxxxxxx-Xxxxxxxx Company, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
00xx Xxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
as Managing Underwriters
Dear Sirs:
Xxxxxxx Corporation, a Georgia corporation (the "Company"), proposes to
issue and sell and the persons named in Schedule B (the "Selling Shareholders")
propose to sell to the underwriters named in Schedule A (the "Underwriters") an
aggregate of ____________ shares (the "Firm Shares") of Common Stock, no par
value (the "Common Stock"), of the Company, of which ____________ shares are to
be issued and sold by the Company and an aggregate of ____________ shares are to
be sold by the Selling Shareholders in the respective amounts set forth opposite
their names in Schedule B. In addition, solely for the purpose of covering
overallotments, the Company proposes to issue and sell, at the Underwriters'
option, up to ____________ additional shares of the Common Stock (the
"Additional Shares"). The Additional Shares and the Firm Shares are collectively
referred to as the "Shares". The Shares are described in the Prospectus which is
referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus,
relating to the Shares, which incorporates by reference documents that the
Company has filed in accordance with the provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the "Exchange Act"). The Company has furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary prospectuses and
all documents incorporated by reference therein (collectively, the "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement as in effect at the time of execution of
this Agreement or, if the registration statement is not yet effective, as
amended when it becomes effective, including all documents filed as a part
thereof or incorporated by
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reference therein, and including any registration statement filed pursuant to
Rule 462(b) under the Act increasing the size of the offering registered under
the Act and any information contained in a prospectus subsequently filed with
the Commission pursuant to Rule 424(b) under the Act and deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Act, is herein called the "Registration Statement", and the
prospectus, including all documents incorporated therein by reference, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act or, if no such filing is required, in the form of final prospectus included
in the Registration Statement at the time it became effective, is herein called
the "Prospectus".
The Company, the Selling Shareholders and the Underwriters agree as
follows:
1. Sale and Purchase. On the basis of the representations and
warranties and the other terms and conditions herein set forth, each of the
Company and the Selling Shareholders, severally and not jointly, agrees to sell
to the respective Underwriters and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company and the Selling Shareholders the
respective number of Firm Shares (subject to such adjustment as you may
determine to avoid fractional shares) which bears the same proportion to the
number of Firm Shares to be sold by the Company or by that Selling Shareholder,
as the case may be, as the number of Firm Shares set forth opposite the name of
such Underwriter on Schedule A bears to the total number of Firm Shares to be
sold by the Company and the Selling Shareholders, in each case at a purchase
price of $____ per Share. You may release the Firm Shares for public sale
promptly after this Agreement becomes effective. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
In addition, on the basis of the representations and warranties and
the other terms and conditions herein set forth, the Company hereby grants to
the several Underwriters an option to purchase, and the Underwriters shall have
the right to purchase, severally and not jointly, from the Company all or a
portion of the Additional Shares as may be necessary to cover overallotments
made in connection with the offering of the Firm Shares, at the same purchase
price per share to be paid by the several Underwriters to the Company and the
Selling Shareholders for the Firm Shares. This option may be exercised in whole
or in part from time to time on or before the thirtieth day following the date
hereof, by written notice to the Company. Any such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised,
and the date and time when the Additional Shares are to be delivered (any such
date and time being herein referred to as an "additional time of purchase");
provided, however, that no additional time of purchase shall occur earlier than
the time of purchase (as defined below) nor earlier than the second business
day* after the date on which the option shall have been exercised nor later than
the eighth business day after the date on which the option shall have been
exercised. The number of Additional Shares to be sold to each Underwriter at an
additional time of purchase shall be the number which bears the same proportion
to the aggregate number of Additional Shares being purchased at such additional
time of purchase as the number of Firm Shares set forth opposite the name of
such Underwriter on Schedule
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* As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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A bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company and to the Attorney-in-Fact referred to in
Section 4(d) on behalf of the Selling Shareholders by certified or official bank
checks, in immediately available funds, at the office of Xxxxxx, Read & Co. Inc.
in New York City, against delivery of the certificates for the Firm Shares to
you for the respective accounts of the Underwriters. Such payment and delivery
shall be made at 9:30 A.M., New York City time, on ____________, 1997 (unless
another time shall be agreed to by you, the Company and the Selling Shareholders
or unless postponed in accordance with the provisions of Section 10). The time
at which such payment and delivery are actually made is called the "time of
purchase". Certificates for the Firm Shares shall be delivered to you in
definitive form in such names and in such denominations as you shall specify on
the second business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the
additional time of purchase.
3. Representations and Warranties of the Company and the Selling
Shareholders. The Company and each of the Selling Shareholders, jointly and
severally, represent and warrant to each of the Underwriters that:
(a) Each Preliminary Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act; when the Registration Statement becomes
or became effective and at all times subsequent thereto up to the time
of purchase and the additional time of purchase, the Registration
Statement and the Prospectus, and any supplements or amendments
thereto, complied and will comply in all material respects with the
provisions of the Act; and the Registration Statement at all such times
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus at all such times did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Company and the Selling Shareholders make
no representation or warranty with respect to any statement contained
in the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished
in writing by or on behalf of any Underwriter through you to the
Company expressly for use in the Registration Statement or the
Prospectus and set forth in the section of the Registration Statement
and the Prospectus entitled "Underwriting"; the documents incorporated
by reference in the Prospectus, at the time they were filed with the
Commission, complied in all material respects with the
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requirements of the Exchange Act, and do not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued, and no proceeding for
that purpose has been instituted or threatened, by the Commission or by
the state securities or blue sky authority of any jurisdiction.
(b) As of the date of this Agreement, the Company has an
authorized capitalization as set forth under the column entitled
"January 26, 1997 Actual" in the section of the Registration Statement
and the Prospectus entitled "Capitalization" and, as of the time of
purchase, the capitalization of the Company will be as set forth under
the column entitled "January 26, 1997 As Adjusted" in the section of
the Registration Statement and the Prospectus entitled
"Capitalization"; all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable and are free of statutory and
contractual preemptive rights.
(c) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Georgia with full power and authority to (i) own its properties and
conduct its business as described in the Registration Statement and the
Prospectus and (ii) execute and deliver this Agreement and to issue,
sell and deliver the Shares to be sold by it as herein contemplated.
(d) As of the date of this Agreement, the Company does not
own, and as of the time of purchase and the additional time of purchase
will not own, directly or indirectly, any capital stock or other equity
securities in any other corporation or any interest in any partnership,
joint venture, limited liability company or other association other
than (i) the shares of capital stock of the corporations partnership
interests in and the limited partnership listed on Schedule D
(collectively, the "Subsidiaries"), and (ii) securities issued by
publicly-held corporations constituting, in each case, less than 1% of
the corporation's outstanding securities of the same class; all of the
issued and outstanding shares of capital stock of each corporate
Subsidiary have been duly authorized and validly issued and are fully
paid and nonassessable and all of the outstanding partnership interests
of the limited partnership Subsidiary have been duly and validly
issued; the shares of capital stock of and the partnership interests in
the Subsidiaries which are joint ventures (the "Joint Ventures") shown
on Schedule D as owned by the Company and all of the issued and
outstanding shares of capital stock of the other Subsidiaries are owned
directly or indirectly by the Company and, except as described in the
Prospectus, are owned free and clear of any pledge, lien, encumbrance,
security interest or other claim; there are no outstanding rights,
subscriptions, warrants, calls, preemptive rights, options or other
agreements of any kind with respect to the capital stock of or
partnership interest in any of the Subsidiaries.
(e) Each of the corporate Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, and the limited
partnership Subsidiary has been duly organized and is validly existing
as a
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limited partnership in good standing under the laws of its jurisdiction
of organization, each with full corporate or partnership power and
authority to own its properties and to conduct its businesses.
(f) Each of the Company and the Subsidiaries is duly qualified
or licensed by and is in good standing in each jurisdiction in which it
owns or leases property or conducts its business and in each other
jurisdiction in which the failure, individually or in the aggregate, to
be so qualified or licensed could have a material adverse effect on the
properties, assets, operations, business, business prospects or
condition (financial or other) of the Company and the Subsidiaries
taken as a whole; each of the Company and the Subsidiaries is in
compliance in all material respects with the laws, orders, rules,
regulations and directives issued or administered by each such
jurisdiction.
(g) Neither the Company nor any of the Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice,
lapse of time or both would constitute a breach of, or default under),
its charter or bylaws or limited partnership agreement, or in the
performance or observance of any obligation, agreement, covenant or
condition contained in any license, indenture, lease, mortgage, deed of
trust, bank loan or credit agreement, material supply agreement or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them may be bound or
affected. The execution, delivery and performance of this Agreement,
the issuance of the Shares to be sold by the Company hereunder and the
consummation of the transactions contemplated hereby will not conflict
with, or result in any breach of or constitute a default under (nor
constitute any event which with notice, lapse of time or both would
constitute a breach of, or default under), the charter or bylaws or
limited partnership agreement of the Company or any of the Subsidiaries
or under any provision of any license, indenture, lease, mortgage, deed
of trust, bank loan or credit agreement, material supply agreement or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or their properties may
be bound or affected, or under any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order applicable to
the Company or any of the Subsidiaries.
(h) The Firm Shares to be sold by the Company hereunder and the
Additional Shares, when issued and delivered to and paid for by the
Underwriters as contemplated hereby, will be duly authorized and
validly issued and fully paid and nonassessable, free and clear of any
pledge, lien, encumbrance, security interest, preemptive right or other
claim.
(i) This Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms, except as rights to
indemnity and contribution hereunder may be limited by federal or state
securities or blue sky laws and except as the enforceability hereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and general
principles of equity.
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(j) The capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus and the certificates for the
Shares are in due and proper form and the holders of the Shares after
making payment therefor will not be subject to personal liability by
reason of being such holders; all offers and sales of the Company's
capital stock since August 2, 1994 were at all relevant times
registered under the Act or exempt from the registration requirements
of the Act, and were registered under the applicable state securities
or blue sky laws or exempt from the registration requirements of such
laws.
(k) No approval, authorization, consent or order of or filing with
any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares as contemplated hereby, other
than registration of the Shares under the Act, clearance of the
offering of the Shares with the National Association of Securities
Dealers, Inc. (the "NASD") and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters.
(l) No person has the right, contractual or otherwise, to cause the
Company to issue to it, or, except as disclosed in the Registration
Statement and the Prospectus, to register pursuant to the Act, any
securities of the Company in consequence of the issue and sale of the
Shares to the Underwriters hereunder nor does any person have
preemptive rights, rights of first refusal or other rights to purchase
any of the Shares. Each person who has the right, contractual or
otherwise, to cause the Company to register pursuant to the Act any
securities of the Company in consequence of the issue and sale of the
Shares to the Underwriters hereunder either included such securities in
the Registration Statement or duly waived such right.
(m) Xxxxxx Xxxxxxxx LLP, whose reports on the consolidated financial
statements of the Company and the Subsidiaries are included or
incorporated by reference in the Registration Statement and the
Prospectus, are independent public accountants with respect to the
Company as required by the Act and the applicable published rules and
regulations thereunder.
(n) All legal or governmental proceedings, contracts, documents or
understandings of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement have been so described or filed as
required.
(o) There is no action, suit or proceeding pending or threatened
against the Company or any of the Subsidiaries or any of their
properties, at law or in equity, or before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority or agency that could result in a judgment, decree or order
having a material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the
Company and the Subsidiaries taken as a whole.
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(p) The audited and unaudited financial statements (including the
related notes) and the financial schedules included in the Registration
Statement and the Prospectus present fairly the consolidated financial
condition of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the
Company and the Subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved; and no other financial statements or schedules are required
by the Act or the applicable published rules and regulations thereunder
to be included in the Registration Statements or Prospectus.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as
may be otherwise stated in the Registration Statement or the
Prospectus, there has not been: (A) any material adverse change in the
properties, assets, operations, business, business prospects or
condition (financial or other), present or prospective, of the Company
and the Subsidiaries taken as a whole; (B) any transaction, that is
material to the Company and the Subsidiaries taken as a whole,
contemplated or entered into by the Company or any of the Subsidiaries;
or (C) any obligation, contingent or otherwise, directly or indirectly
incurred by the Company or any of the Subsidiaries that is material to
the Company and the Subsidiaries taken as a whole.
(r) The Company has obtained the agreement of the directors,
executive officers and shareholders listed on Schedule C not to sell,
contract to sell, grant any option to sell, transfer or otherwise
dispose of, directly or indirectly, any shares of Common Stock, or
securities convertible into or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock for a period of
_________ days from the date of the Prospectus without the prior
written consent of Xxxxxx, Read & Co. Inc.
(s) Neither the Company nor any of the Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable federal or
state wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act or the rules and regulations promulgated
thereunder, which in each case might result in any material adverse
effect on the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole.
(t) Each of the Company and the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including without limitation under any
applicable Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its business; the
Company and each of the Subsidiaries has fulfilled and performed all of
its material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of
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any such permit; and, except as described in the Prospectus, such
permits contain no restrictions that are materially burdensome to the
Company or any of the Subsidiaries.
(u) The effect of Environmental Laws on the business, operations and
properties of the Company and the Subsidiaries, and associated costs
and liabilities (including without limitation any capital or operating
expenditure required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties), singly or in the aggregate, do not and would not have a
material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the
Company and the Subsidiaries taken as a whole.
(v) Neither the Company nor any of the Subsidiaries, nor any
employee of the Company or any of the Subsidiaries, has made any
payment of funds of the Company or any of the Subsidiaries prohibited
by law, and no funds of the Company or any of the Subsidiaries have
been set aside to be used for any payment prohibited by law.
(w) The Company and the Subsidiaries have filed all federal or state
income or franchise tax returns required to be filed and have paid all
taxes shown thereon as due, and there is no material tax deficiency
which has been or might be asserted against the Company or any of the
Subsidiaries; all material tax liabilities are adequately provided for
on the books of the Company and the Subsidiaries.
(x) The Company has not incurred any liability for any finder's fees
or similar payments in connection with the transactions herein
contemplated.
(y) The Company and the Subsidiaries have good title to all
properties and assets owned by them, in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, mortgages
and defects (except such as are described or referred to in the
Prospectus and the financial statements and the notes thereto contained
therein or such as do not interfere with the use made and proposed to
be made of such property by the Company and the Subsidiaries); the
property held under lease by the Company or any of the Subsidiaries is
held by it under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property by the Company or any of the
Subsidiaries, as the case may be.
(z) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or is subject to regulation under such Act.
(aa) No labor dispute with employees of the Company or any of the
Subsidiaries exists or is imminent, and the Company is not aware of any
existing or imminent labor disturbance by employees of any of its
principal customers which might be expected to have
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a material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the
Company and the Subsidiaries taken as a whole.
(bb) The Company or one of the Subsidiaries owns or possesses, or
can acquire on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know how (including trade secrets and other
unpatented and unpatentable proprietary or confidential information,
systems or procedures), trade marks, service marks and trade names
presently employed by the Company or any of the Subsidiaries in
connection with the business now operated by it, and neither the
Company nor any of the Subsidiaries has received any notice of
continuing infringement of or continuing conflict with asserted rights
of others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the properties,
assets, operations, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole.
4. Further Representations and Warranties of the Selling Shareholders.
Each Selling Shareholder, severally and not jointly, further represents and
warrants to each Underwriter that:
(a) Such Selling Shareholder is and at the time of delivery of the
Shares to be sold by such the Selling Shareholder will be the lawful
owner of the number of Shares or securities convertible into or options
exercisable for the number of Shares to be sold by such Selling
Shareholder pursuant to this Agreement and, at the time of delivery
thereof, will have valid and marketable title to such Shares, and upon
delivery of and payment for such Shares the Underwriters will acquire
valid and marketable title to such Shares free and clear of any claim,
lien, encumbrance, security interest, community property right,
restriction on transfer or other defect in title, assuming each of the
Underwriters has purchased the Shares purchased by it in good faith and
without notice of any adverse claim.
(b) Such Selling Shareholder has and at the time of delivery of such
Shares will have full legal right, power and capacity, and any approval
required by law to sell, assign, transfer and deliver such Shares in
the manner provided in this Agreement.
(c) This Agreement has been duly authorized, executed and delivered
by such Selling Shareholder and is legal, valid and binding agreement
of such Selling Shareholder, enforceable in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited
by federal or state blue sky laws and except as the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditor's rights generally and
general principles of equity. The Power of Attorney executed by the
Selling Shareholders (the "Power of Attorney") and the Custody
Agreement among the Selling Shareholders and ________ (the "Custody
Agreement") have been duly executed and delivered by such Selling
Shareholder and are legal, valid and binding agreements of such
Selling Shareholder, enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization,
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moratorium or similar laws affecting creditors' rights generally and
general principles of equity.
(d) Such Selling Shareholder has duly and irrevocably authorized the
Attorney-in-Fact (as defined in the Power of Attorney), on behalf of
such Selling Shareholder, to execute and deliver this Agreement and any
other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the Shares to be sold
by such Selling Shareholder and receive payment therefor pursuant
hereto.
(e) The sale of the Shares by such Selling Shareholder pursuant
hereto is not prompted by any material adverse information concerning
the Company; and all information furnished in writing by or on behalf
of such Selling Shareholder specifically for use in the Registration
Statement and the Prospectus, and any supplement or amendment thereto,
is and will be when the Registration Statement became effective and at
all times subsequent thereto up to the time of purchase, true and
correct and complete and at all such times did not and will not contain
any untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(f) The consummation of the transactions contemplated hereby and by
the Power of Attorney and by the Custody Agreement and the fulfillment
of the terms hereof and thereof will not constitute a breach or
violation of or default under any trust, indenture, agreement or other
instrument to which such Selling Shareholder is a party or by which
such Selling Shareholder is bound.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect as long as required for the
distribution of the Shares, provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such state (except service of
process with respect to the offering and sale of the Shares); promptly
to advise you of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and to use its best efforts to obtain the withdrawal
of any order of suspension at the earliest practicable moment;
(b) to make available to you in New York City, as soon as
practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendment or supplement
thereto after the effective date of the Registration Statement) as the
Underwriters may request for the purposes contemplated by the Act;
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(c) to advise you promptly and if requested by you to confirm such
advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes
effective and (ii) when the Prospectus is filed with the Commission
pursuant to Rule 424(b) under the Act, if required under the Act (which
the Company agrees to file in a timely manner under such Rule);
(d) to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for or
the entry of a stop order suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its
best efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement
the Registration Statement or the Prospectus, including by filing any
document that would be incorporated therein by reference, and to file
no such amendment or supplement to which you shall object in writing;
(e) to furnish to you and, upon request to each of the other
Underwriters, for a period of five years from the date of this
Agreement (i) copies of all reports or other communications that the
Company shall send to its shareholders or from time to time shall
publish or publicly disseminate and (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar form as may be designated by the
Commission, and any other document filed by the Company pursuant to
Section 12, 13, 14 or 15(d) of the Exchange Act;
(f) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act that,
in the reasonable judgment of the Company, would require the making of
any change in the Prospectus then being used, or in the information
incorporated therein by reference, so that the Prospectus, as then
supplemented, would not include an untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made,
not misleading and, during such time, promptly to prepare and furnish,
at the Company's expense, to the Underwriters such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change in such quantities as requested by the Underwriters, and to
furnish to you a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission;
(g) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which need not be
audited and which will satisfy the provisions of Section 11(a) of the
Act including, at the option of the Company, Rule 158) covering a
period of 12 months beginning after the effective date of the
Registration Statement but ending not later than 15 months after the
date of the Registration Statement, as soon as is reasonably
practicable after the termination of such 12-month period;
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(h) to furnish to you four signed copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient conformed copies of
the foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(i) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but
not later than two business days prior thereto, a copy of the latest
available unaudited interim consolidated financial statements, if any,
of the Company and the Subsidiaries that have been read by the
Company's independent certified public accountants as stated in their
letter to be furnished pursuant to Section 8(b);
(j) to apply the net proceeds from the sale of the Shares sold by
the Company in the manner set forth under the caption "Use of Proceeds"
in the Registration Statement and the Prospectus;
(k) to use its best efforts to cause the Shares to be sold by the
Company hereunder to be listed for trading on the New York Stock
Exchange upon official notice of issuance;
(l) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement otherwise becomes effective or is
terminated, to pay all expenses, fees and taxes (other than (x) any
transfer taxes and (y) fees and disbursements of your counsel except as
set forth under Section 5 and clauses (iii) and (iv) below) in
connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus and any
amendment or supplement thereto, and the printing and furnishing of
copies of each thereof to you and to dealers (including costs of
mailing and shipment), (ii) the issuance, sale and delivery of the
Shares, (iii) the word processing or printing of this Agreement and any
dealer agreements, and the reproduction or printing and furnishing of
copies of each thereof to you and to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for
offering and sale under state laws as aforesaid (including legal fees
and filing fees and other disbursements of your counsel) and the
printing and furnishing of copies of any blue sky surveys to you and to
dealers, (v) any listing of the Shares on the New York Stock Exchange,
(vi) any filing for review of the public offering of the Shares by the
NASD and (viii) the performance of the Company's and the Selling
Shareholders' other obligations hereunder;
(m) not to sell, contract to sell, grant any option to sell,
transfer or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or permit
the registration under the Act of any shares of Common Stock, except
for (i) the registration of the Shares and the sales to you pursuant to
this Agreement, (ii) the issuance of shares of Common Stock upon the
exercise of stock options outstanding on the date hereof, and (iii) the
registration under the Act of 590,000 shares of Common Stock pursuant
to a registration statement on Form S-8 upon shareholder approval of
the increase in the number of share reserved for issuance under the
Company's 1994 Stock Incentive Plan, for a period
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commencing on the date hereof and continuing for________ days after
the date of the Prospectus, without the prior written consent of
Xxxxxx, Read & Co. Inc.; and
(n) to refrain from investing the proceeds from the sale of the
Shares in a manner to cause the Company or any of the Subsidiaries to
become an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
6. Certain Covenants of the Selling Shareholders. Each Selling
Shareholder agrees with each Underwriter that:
(a) such Selling Shareholder will not sell, contract to sell, grant
any option to sell, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into
or exchangeable for Common Stock or warrants or other rights to
purchase Common Stock, except for the sales to you pursuant to this
Agreement, for a period commencing on the date hereof and continuing
for________ days after the date of the Prospectus, without the prior
written consent of Xxxxxx, Read & Co. Inc.; and
(b) the Shares represented by the certificates held in custody
pursuant to the Custody Agreement are for the benefit of and coupled
with and subject to the interests of the Underwriters and the Selling
Stockholders hereunder, and the arrangement for such custody and the
appointment of the Attorney-in-Fact pursuant to the Power of Attorney
is irrevocable; the obligations of the Selling Shareholders shall not
be terminated by operation of law, whether by the liquidation,
dissolution, death or incapacity of such Selling Shareholder, or any
other event; if such Selling Shareholder should be liquidated,
dissolved, die or become incapacitated or any other event occur before
the delivery of the Shares hereunder, certificates for the Shares to be
sold by such Selling Shareholder shall be delivered on behalf of such
Selling Shareholder in accordance with the terms and conditions of this
Agreement and the Custody Agreement and Power of Attorney, and action
taken by the Attorney-in-Fact under the Custody Agreement and Power of
Attorney shall be as valid as if such death, incapacity or other event
had not occurred, whether or not the Custodian or the Attorney-in-Fact
shall have notice of such liquidation, dissolution, death, incapacity
or other event.
7. Reimbursement of Underwriters' Expenses. If the Firm Shares or the
Additional Shares are not delivered for any reason, other than the failure of
the Underwriters to purchase the Firm Shares or the Additional Shares as
provided herein (unless such failure is permitted under the provisions of
Section 8 or Section 9(b) of this Agreement), the Company will reimburse the
Underwriters for all of their out-of-pocket expenses, including the fees and
disbursements of their counsel.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Shareholders on the
date hereof and at the time of purchase (and the several obligations of the
Underwriters at any additional time of purchase are subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Shareholders on the date
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hereof and at the time of purchase and at such additional time of purchase, as
the case may be), the performance by each of the Company and the Selling
Shareholders of its and their obligations hereunder and to the following
conditions:
(a) The Company shall furnish to you at the time of purchase and at
such additional time of purchase, as the case may be, an opinion of
Xxxxxxxx Xxxxxxx LLP, counsel for the Company and the Selling
Shareholders, addressed to the Underwriters and dated the time of
purchase or such additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
satisfactory to Powell, Goldstein, Xxxxxx & Xxxxxx LLP, counsel for the
Underwriters, stating that:
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Georgia with full corporate power and authority (A) to own its
properties and conduct its business as described in the Registration
Statement and the Prospectus and (B) to execute and deliver this
Agreement and to issue, sell and deliver the Shares to be sold by it as
herein contemplated;
(ii) each of the corporate Subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the state in which such Subsidiary is incorporated, and the
limited partnership Subsidiary has been duly organized and is validly
existing as a limited partnership in good standing under the laws of
its jurisdiction of organization, each with full corporate or
partnership power and authority to own its properties and to conduct
its business as described in the Registration Statement and the
Prospectus; to the best of such counsel's knowledge after due inquiry,
the Company does not own any interest in any other corporation, joint
venture, partnership, limited liability company or other association
other than (A) shares of capital stock or partnership interests in the
Subsidiaries, and (B) securities issued by publicly-held corporations
constituting less than 1% of the corporation's outstanding securities
of the same class;
(iii) each of the Company and the Subsidiaries is duly qualified or
licensed to do business by and is in good standing as a foreign
corporation or limited partnership in each jurisdiction in which it
conducts business or owns property and in which the failure,
individually or in the aggregate, to be so licensed or qualified could
have a material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the
Company and the Subsidiaries taken as a whole;
(iv) all of the issued and outstanding shares of capital stock of
each corporate Subsidiary have been duly authorized and validly issued
and are fully paid and nonassessable and all the outstanding
partnership interests of the limited partnership Subsidiary have been
duly and validly issued; the shares of capital stock of and the
partnership interests in the Joint Ventures shown on Schedule D as
owned by the Company and all of the issued and outstanding shares of
capital stock of the other
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Subsidiaries are owned directly or indirectly by the Company and,
except as set forth in the Prospectus, are owned free and clear of any
pledge, lien, encumbrance, security interest, preemptive right or other
claim; there are no rights, warrants, options or other agreements to
acquire or instruments convertible into or exchangeable for any shares
of capital stock or other equity interest of any Subsidiary;
(v) this Agreement has been duly authorized, executed and
delivered by the Company and is legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or
state securities or blue sky laws and except as the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and
general principles of equity;
(vi) (A) the Shares, when delivered to and paid for by the
Underwriters, will be duly authorized, validly issued, fully paid and
nonassessable, and will be free of any pledge, lien, encumbrance, claim
or preemptive right; and (B) the certificates for the Shares are in due
and proper form and the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(vii) (A) the Company has an authorized capitalization as set forth
under the heading "Capitalization" in the Registration Statement and
the Prospectus, and (B) the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid, nonassessable and free of statutory and contractual preemptive
rights;
(viii) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and the Prospectus;
(ix) the Registration Statement and the Prospectus (except as to
the financial statements and schedules contained or incorporated by
reference therein as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Act;
(x) the Registration Statement has become effective under the Act
and, to the best of such counsel's knowledge, no stop order proceedings
with respect thereto are pending or threatened under the Act;
(xi) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance or sale of the Shares as contemplated hereby other
than registration of the Shares under the Act (except such counsel need
express no opinion as to any necessary qualification under the state
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securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters);
(xii) the execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not conflict with, or result in any
breach of, or constitute a default under (nor constitute any event
which with notice, lapse of time or both would constitute a breach of
or default under), the charter or bylaws of the Company or the charter
or bylaws or the limited partnership agreement of any of the
Subsidiaries, or any provision of any license, indenture, lease,
mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of the Subsidiaries
is a party or by which the Company or any of the Subsidiaries or their
properties are bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any of the Subsidiaries;
(xiii) to the best of such counsel's knowledge after due inquiry,
neither the Company nor any of the Subsidiaries is in breach of or in
default under (nor has any event occurred which with notice, lapse of
time or both would constitute a breach of or default under) any
license, indenture, lease, mortgage, deed of trust, bank loan or credit
agreement or any other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries or their properties are bound or affected or under any
law, regulation or rule or any decree, judgment or order applicable to
the Company or any of the Subsidiaries, except for such matters as
could not, individually or in the aggregate, have a material adverse
effect on the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole;
(xiv) to the best of such counsel's knowledge after due inquiry,
neither the Company nor any of the Subsidiaries has violated any
Environmental Laws, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might result in
any material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the
Company and the Subsidiaries taken as a whole;
(xv) the Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including without limitation under any
applicable Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its business in the
manner described in the Prospectus; to the best of such counsel's
knowledge after due inquiry, the Company and each of the Subsidiaries
has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which
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allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as
described in the Prospectus, such permits contain no restrictions that
are materially burdensome to the Company or any of the Subsidiaries;
(xvi) all legal or government proceedings, contracts, documents
or understandings of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement have been so described or filed;
(xvii) to the best of such counsel's knowledge after due inquiry,
except as described in the Registration Statement and the Prospectus,
there are no actions, suits or proceedings pending or threatened
against the Company or any of the Subsidiaries, or any of their
respective properties, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency that individually or in the aggregate
could result in a judgment, decree or order having a material adverse
effect on the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole;
(xviii) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed (or, if
an amendment with respect to any such document was filed, when such
amendment was filed), complied as to form in all material respects
with the Exchange Act (except as to the financial statements and
schedules and other financial and statistical data contained or
incorporated by reference therein, as to which such counsel need
express no opinion);
(xix) to the best of such counsel's knowledge after due
inquiry, no person has the right, contractual or otherwise, to cause
the Company to issue to it, or, except as disclosed in the
Registration Statement and Prospectus, to register pursuant to the
Act, any securities of the Company in consequence of the issue and
sale of the Shares to the Underwriters hereunder nor does any person
have preemptive rights, rights of first refusal or other rights to
purchase any of the Shares; to the best of such counsel's knowledge
after due inquiry, each person who has the right, contractual or
otherwise, to cause the Company to register pursuant to the Act any
securities of the Company in consequence of the issue and sale of the
Shares to the Underwriters hereunder either included such securities
in the Registration Statement or duly waived such right;
(xx) the statements in the Registration Statement and the
Prospectus under the captions "Risk Factors", "Business --
____________________" and "_______________________________", insofar as
they are descriptions of laws, regulations and rules, of legal and
governmental proceedings or of contracts, agreements, leases and other
legal documents, or refer to statements of law or legal
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conclusions, have been reviewed by such counsel and are accurate in all
material respects;
(xxi) neither the Company nor any of the Subsidiaries is an
"investment company" or a person "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
(xxii) to the best of such counsel's knowledge after due inquiry,
the Company or one of the Subsidiaries owns or possesses, or can
acquire on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know how (including trade secrets and other
unpatented and unpatentable proprietary or confidential information,
systems or procedures), trade marks, service marks and trade names
presently employed by the Company or any of the Subsidiaries in
connection with the business now operated by it, and neither the
Company nor any of the Subsidiaries has received any notice of
continuing infringement of or continuing conflict with asserted rights
of others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the properties,
assets, operations, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole.
(xxiii) all offers and sales of the Company's capital stock since
August 2, 1994 were at all relevant times registered under the Act or
exempt from the registration requirements of the Act;
(xxiv) this Agreement has been duly executed and delivered by each
of the Selling Shareholders and is a legal, valid and binding agreement
of the Selling Shareholder, enforceable in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited
by federal or state securities or blue sky laws and except as the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity; the Power of Attorney and
the Custody Agreement have been duly executed and delivered by each of
the Selling Shareholders and are legal, valid and binding agreements of
each of the Selling Shareholders enforceable in accordance with their
respective terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the creditors' rights generally and general principles of
equity;
(xxv) each of the Selling Shareholders has full legal right and
power, and has obtained any authorization or approval required by law
(other than those imposed by the Act and the securities or blue sky
laws of certain jurisdictions), to sell, assign, transfer and deliver
the Shares to be sold by such Selling Shareholder in the manner
provided in this Agreement;
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(xxvi) delivery of certificates for the Shares to be sold by the
Selling Shareholders pursuant hereto will pass title thereto to the
Underwriters severally, free and clear of any claim, lien, encumbrance,
security interest, community property right, restriction on transfer or
other defect in title assuming that the several Underwriters are good
faith purchasers and without notice of any adverse claim;
(xxvii) to the best of such counsel's knowledge after due inquiry,
the consummation of the transactions contemplated hereby and by the
Power of Attorney and the Custody Agreement and the fulfillment of the
terms hereof and thereof will not constitute a breach or violation of
or default under any trust, indenture, agreement or other instrument to
which any of the Selling Shareholders is a party or by which any of the
Selling Shareholders is bound;
(xxviii) the Attorney-in-Fact has been duly authorized by each
Selling Shareholder to execute and deliver on behalf of such Selling
Shareholder this Agreement and any other document necessary or
desirable in connection with the transactions contemplated hereby and
to deliver the Shares to be sold by such Selling Shareholder and
receive payment therefor pursuant hereto; and
(xxix) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the sale of the Shares to be sold by the Selling Shareholders as
contemplated hereby other than registration of the Shares under the Act
(except such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters).
In addition, such counsel shall state that such counsel have participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company, the
Selling Shareholders and representatives of the Underwriters at which the
contents of the Registration Statement and the Prospectus were discussed and,
although such counsel is not passing upon and does not assume responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as and to the extent stated in
clauses (vii) and (xx) of this Section 8(a) and except for the statements in the
Registration Statement or the Prospectus relating to the description of the
capital stock of the Company and the Shares insofar as such statements concern
legal matters), on the basis of the foregoing nothing has come to the attention
of such counsel that causes them to believe that the Registration Statement or
any amendment thereto at the time such Registration Statement or amendment
became effective contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or any supplement
thereto at the date of such Prospectus or such supplement, and at all times up
to and including the time of purchase contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
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express no opinion with respect to the financial statements and schedules
included in the Registration Statement or Prospectus).
In rendering such opinion, counsel may rely, to the extent they deem such
reliance proper, upon an opinion or opinions, each dated the time of purchase or
the additional time of purchase, as the case may be, of other counsel with
respect to Subsidiaries incorporated or organized under the laws of
jurisdictions other than the State of Georgia and the State of Delaware;
provided, that (i) each such local counsel is acceptable to you and your
counsel, (ii) counsel shall state in their opinion that they have no reason to
believe that they and you are not justified in relying thereon and (iii) such
reliance is expressly authorized by each opinion so relied upon and a copy of
each such opinion is delivered to you and is in form and substance satisfactory
to you and your counsel.
(b) You shall have received from Xxxxxx Xxxxxxxx LLP letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in form
and substance satisfactory to the Managing Underwriters.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, opinions from Powell,
Goldstein, Xxxxxx & Xxxxxx LLP in form and substance satisfactory to you.
(d) No amendment or supplement to the Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference
therein, shall be filed prior to the time the Registration Statement
becomes effective to which you shall have objected in writing.
(e) The Registration Statement shall become effective at or before
5:00 P.M., New York City time, on the date of this Agreement and, if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act at or before 5:00 P.M.,
New York City time, on the second full business day after the date of this
Agreement; provided, however, that the Company, the Selling Shareholders
and you and any group of Underwriters, including you, who have agreed
hereunder to purchase in the aggregate at least 50% of the Firm Shares from
time to time may agree in writing or by telephone, confirmed in writing, on
a later date.
(f) Prior to the time of purchase or the additional time of purchase,
as the case may be: (i) no stop order with respect to the effectiveness of
the Registration Statement shall have been issued under the Act or
proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the
Registration Statement and all amendments thereto, or modifications
thereof, if any, shall not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and (iii) the Prospectus and
all amendments or supplements thereto, or modifications thereof, if any,
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
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(g) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, there has
not been: (i) any material and adverse change, present or prospective, in
the properties, assets, operations, business, business prospects or
condition (financial or other) of the Company and the Subsidiaries taken as
a whole; (ii) any transaction that is material to the Company and the
Subsidiaries taken as a whole contemplated or entered into by the Company
or any of the Subsidiaries; or (iii) any obligation, contingent or
otherwise, directly or indirectly, incurred by the Company or any of the
Subsidiaries that is material to the Company and the Subsidiaries taken as
a whole.
(h) The Company, at the time of purchase or additional time of
purchase, as the case may be, shall have delivered to you a certificate of
the President and Chief Executive Officer, Executive Vice President and the
Vice President and Chief Financial Officer of the Company to the effect
that the representations and warranties of the Company as set forth in this
Agreement are true and correct as of each such date and the conditions set
forth in Section 8(f) and Section 8(g) have been met.
(i) You shall have received a signed letter, dated the date of this
Agreement, from each of the directors, executive officers and shareholders
listed in Schedule C to the effect that such persons shall not sell,
contract to sell, grant any option to sell, transfer or otherwise dispose
of, directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable for Common Stock or warrants or other
rights to purchase Common Stock for a period of ___________ days from
the date of the Prospectus without the prior written consent of Xxxxxx,
Read & Co. Inc.
(j) The Company and the Selling Shareholders shall have furnished to
you such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement or the
Prospectus as of the time of purchase and the additional time of purchase,
as the case may be, as you reasonably may request.
(k) The Company and the Selling Shareholders shall have performed such
of their respective obligations under this Agreement as are to be performed
by the terms hereof at or before the time of purchase and at or before the
additional time of purchase, as the case may be.
(l) The Shares shall have been listed for trading on the New York
Stock Exchange upon official notice of issuance.
(m) At the time of purchase, you shall have received from each Selling
Shareholder a certificate (which may be signed by the Attorney-in-Fact), to
the effect that the representations and warranties of such Selling
Shareholder as set forth in this Agreement are true and correct as of such
date.
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(n) On or prior to the date hereof, the New York Stock Exchange shall
have approved the Underwriters' participation in the distribution of the
Shares to be sold by the Selling Shareholders.
9. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective (i) if Rule 430A under the
Act is not used, when you shall have received notification of the
effectiveness of the Registration Statement, or (ii) if Rule 430A under the
Act is used, when the parties hereto have executed and delivered this
Agreement.
(b) The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares if, at any time prior to the time
of purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on
the New York Stock Exchange shall have been suspended or minimum prices
shall have been established on the New York Stock Exchange or if a banking
moratorium shall have been declared either by the United States or New York
State authorities, or if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred
any material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on, or any
material adverse change in, any financial market which, in each case, in
your judgment or in the judgment of such group of Underwriters, makes it
impracticable to market the Shares. If you or any group of Underwriters
elect to terminate this Agreement as provided in this Section 9(b), the
Company and each other Underwriter shall be notified promptly by letter or
telegram.
(c) If any Underwriter shall default in its obligation to take up and
pay for the Firm Shares to be purchased by it hereunder and if the number
of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for does not exceed 10% of the total number of
Firm Shares, the non-defaulting Underwriters shall take up and pay for (in
addition to the aggregate principal amount of Firm Shares they are
obligated to purchase pursuant to Section 1) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate
with the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number
of Firm Shares set opposite the names of such non-defaulting Underwriters
in Schedule A.
(d) If any Underwriter shall default in its obligation to take up and
pay for the Firm Shares to be purchased by it hereunder and if the number
of Firm Shares which all Underwriters so defaulting shall have agreed but
failed to take up and pay for exceeds 10% of the total number of Firm
Shares, and arrangements satisfactory to you and the Company are
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not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter.
(e) Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it
will not sell any Firm Shares hereunder unless all of the Firm Shares are
purchased by the Underwriters (or by substituted underwriters selected by
you with the approval of the Company or selected by the Company with your
approval pursuant to Section 9(d)). If a new Underwriter or Underwriters
are substituted for a defaulting Underwriter or Underwriters in accordance
with Section 9(d), the Company or you shall have the right to postpone the
time of purchase for a period not exceeding five business days in order
that any necessary change in the Registration Statement and the Prospectus
and other documents may be effected. The term Underwriter as used in this
Agreement shall refer to and include any Underwriter substituted under this
Section 9 with like effect as if such substituted Underwriter had
originally been named in Schedule A.
(f) If the purchase of the Shares by the Underwriters, as contemplated
by this Agreement, is not consummated for any reason permitted under this
Agreement or if such purchase is not consummated because the Company shall
be unable to comply with any of the terms of this Agreement, the Company
shall not be under any obligation or liability under this Agreement (except
to the extent provided in Sections 5(l), 7 and 10), and the Underwriters
shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 10).
10. Indemnity by the Company, the Selling Shareholders and the
Underwriters.
(a) The Company and the Selling Shareholders, jointly and severally,
agree to indemnify, defend and hold harmless each Underwriter, each person
that controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and each Underwriter's agents,
employees, officers and directors and the agents, employees, officers and
directors of any such controlling person (collectively, the "Underwriter
indemnified parties") from and against any and all losses, claims, damages,
judgments, liabilities and expenses (including the fees and expenses of
counsel and other expenses in connection with investigating, defending or
settling any such action or claim) which, jointly or severally, any
Underwriter indemnified party may incur as they are incurred (and
regardless of whether such Underwriter indemnified party is a party to the
litigation, if any) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any Preliminary Prospectus, or arising out
of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, judgments, liabilities or expenses arise out of, or are based
upon, any such untrue statement or omission or alleged untrue statement or
omission based upon and in conformity with information with respect to any
Underwriter furnished in writing by any Underwriter through you to the
Company expressly for use therein with reference to such Underwriter;
provided, however, that no Selling Shareholder shall be liable under this
Section 11 in an
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amount exceeding the total price at which the Shares sold by such Selling
Shareholder were offered to the public. This indemnity agreement will be in
addition to any liability the Company or the Selling Shareholders otherwise
may have.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted
against any Underwriter indemnified party, with respect to which indemnity
may be sought against the Company or the Selling Shareholders pursuant to
this Section 10, such Underwriter indemnified party shall promptly notify
the Company and each Selling Shareholder in writing, and the Company and
the Selling Shareholders shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Underwriter
indemnified party and payment of all fees and expenses; provided that the
omission so to notify the Company and the Selling Shareholders shall not
relieve them from any liability that they may have to any Underwriter
indemnified party. An Underwriter indemnified party shall have the right to
employ separate counsel in any such action or proceeding and to assume the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter indemnified party unless (i) the employment of
such counsel has been authorized in writing by the Company or the Selling
Shareholders, (ii) the Company and the Selling Shareholders have failed
promptly to assume the defense and employ counsel satisfactory to the
Underwriter indemnified party or (iii) the named parties to any such action
or proceeding (including any impleaded parties) include both the
Underwriter indemnified party and the Company or the Selling Shareholders
and such Underwriter indemnified party shall have reasonably concluded that
there may be one or more legal defenses available to it that are different
from or additional to those available to the Company and the Selling
Shareholders (in which case the Company and the Selling Shareholders shall
not have the right to assume the defense of such action on behalf of such
Underwriter indemnified party), in any of which events such fees and
expenses shall be borne by the Company and the Selling Shareholders and
reimbursed as they are incurred. It is understood, however, that the
Company and the Selling Shareholders shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time
for all such Underwriter indemnified parties, which firm shall be
designated in writing by Xxxxxx, Read & Co. Inc., and that all such fees
and expenses shall be reimbursed as they are incurred. The Company and the
Selling Shareholders shall not be liable for any settlement of any such
action effected without the written consent of the Company or the Selling
Shareholders (which consent shall not be unreasonably withheld or delayed),
but if settled with the written consent of the Company or the Selling
Shareholders, or if there is a final judgment with respect thereto, the
Company and the Selling Shareholders agree to indemnify and hold harmless
each Underwriter indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(c) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration
Statement, and any person that controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act
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(collectively, the "Company indemnified parties") and each Selling
Shareholder to the same extent as the foregoing indemnity from the Company
and the Selling Shareholders to the Underwriter indemnified parties, but
only with respect to information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company
expressly for use with respect to such Underwriter in the Registration
Statement, any Preliminary Prospectus or the Prospectus. In case any action
shall be brought against any Company indemnified party or any Selling
Shareholder based on the Registration Statement, any Preliminary Prospectus
or the Prospectus and in respect of which indemnity may be sought against
any Underwriter pursuant to this Section 10(c), such Underwriter shall have
the rights and duties given to the Company and the Selling Shareholders by
Section 10(b) (except that if the Company and the Selling Shareholders
shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and participate
in the defense thereof, provided that the fees and expenses of such
separate counsel shall be at the expense of such Underwriter), and the
Company indemnified parties and the Selling Shareholders shall have the
rights and duties given to the Underwriter indemnified parties by Section
10(b).
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless any Underwriter indemnified
party or any Company indemnified party or any Selling Shareholder, then the
party required to indemnify such indemnified party under this Section 10,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages, judgments, liabilities and expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company and the Selling Shareholders on the one hand and the
Underwriters on the other hand from the offering of the Shares, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Shareholders on the one hand and the Underwriters
on the other hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Shareholders on the one hand and
the Underwriters on the other hand shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company and the Selling Shareholders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
of the Company and the Selling Shareholders on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue statement 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, by the Selling Shareholders
or by the Underwriters, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, judgments, liabilities and expenses referred to above
shall be deemed to include any legal or other fees or
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expenses reasonably incurred by such party in connection with investigating
or defending any claim or action.
The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section
10(d) were determined by pro rata allocation or by any other method of
allocation (even if the Underwriters were treated as one entity for such
purpose) that does not take account of the equitable considerations
referred to in this Section 10(d). Notwithstanding the provisions of this
Section 10(d), no Underwriter indemnified party shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by such Underwriter indemnified party and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter indemnified party otherwise has been
required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 10 are several in proportion to their respective
underwriting commitments and are not joint.
The statements under the caption "Underwriting" in the Prospectus (to
the extent such statements relate to an Underwriter) constitute the only
information furnished to the Company in writing by such Underwriter
expressly for use in the Registration Statement, any Preliminary Prospectus
or the Prospectus.
(e) The indemnity and contribution agreements contained in this
Section 10 and the representations, warranties and covenants of the Company
and the Selling Shareholders contained in this Agreement shall remain in
full force and effect, regardless of any investigation made by or on behalf
of any Underwriter indemnified party or by or on behalf of any Company
indemnified party or any Selling Shareholder, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares.
Subject to the provisions of Section 10(b) and Section 10(c), the Company,
each Selling Shareholder and each Underwriter agree promptly to notify the
other of the commencement of any litigation or proceeding against it in
connection with the issuance and sale of the Shares or in connection with
the Registration Statement or the Prospectus.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Xxxxxx, Read & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at
0000 Xxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: ____________; and
if to the Selling Shareholders, shall be sufficient in all respects, if
delivered or sent to ____________.
12. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
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WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS
IN THIS AGREEMENT HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF
REFERENCE AND ARE NOT A PART OF THIS AGREEMENT.
13. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company, the Selling
Shareholders, the Underwriter indemnified parties and the Company indemnified
parties, and their respective successors, assigns, executors and administrators.
No other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing correctly sets forth the understanding among the Company,
the Selling Shareholders and the Underwriters, please so indicate in the space
provided below for such purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company, the Selling Shareholders and
the Underwriters, severally.
Very truly yours,
XXXXXXX CORPORATION
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
THE SELLING SHAREHOLDERS NAMED
IN SCHEDULE B ATTACHED HERETO
By:
--------------------------
[ATTORNEY-IN-FACT]
Accepted and agreed to as of
the date first above written,
on behalf of themselves,
The Xxxxxxxx-Xxxxxxxx Company, Inc.
and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
and the other several
Underwriters named in
Schedule A
XXXXXX, READ & CO. INC., as
Managing Underwriter
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
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SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
Xxxxxx, Read & Co. Inc. ........................................ -------
The Xxxxxxxx-Xxxxxxxx Company, Inc. ............................ -------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.............. -------
Total ---------
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SCHEDULE B
Number of Firm
Name Shares to be Sold
---- -----------------
32
SCHEDULE C
DIRECTORS, EXECUTIVE OFFICERS AND SHAREHOLDERS
WHO HAVE EXECUTED LOCK-UP AGREEMENTS
33
SCHEDULE D
SUBSIDIARIES
