Exhibit 1.1
K&S DRAFT
07/21/98
ELECTRONICS BOUTIQUE HOLDINGS CORP.
6,250,000(1)
Common Stock
UNDERWRITING AGREEMENT
July __, 1998
PRUDENTIAL SECURITIES INCORPORATED
XXXXX XXXXXX INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Electronics Boutique Holdings Corp., a Delaware corporation (the
"Company"), and EB Nevada Inc., the Company's parent and the selling
securityholder (the "Selling Securityholder"), hereby confirm their agreement
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,
the Company and the Selling Securityholder propose to issue and sell to the
several Underwriters an aggregate of 6,250,000 shares (the "Firm Securities") of
the Company's common stock, par value $.01 per share ("Common Stock"), of which
4,375,000 shares will be issued and sold by the Company
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(1) Plus an option to purchase from the Selling Securityholder up to
937,500 additional shares to cover over-allotments.
(the "Company's Firm Securities") and 1,875,000 shares will be sold by the
Selling Securityholder (the "Selling Securityholder's Firm Securities"). The
Selling Securityholder also proposes to sell to the several Underwriters not
more than 937,500 additional shares of Common Stock if requested by the
Representatives as provided in Section 3 of this Agreement. Any and all
shares of Common Stock to be purchased by the Underwriters 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."
Reorganization. On or as of May 31, 1998, The Electronics Boutique,
Inc. ("EB") (i) transferred certain assets, including its leases, leasehold
improvements, inventory, employee contracts, fixed assets and prepaid expenses,
subject to all of its liabilities, to Electronics Boutique of America Inc.
("EBOA") in exchange for all of the outstanding shares of capital stock of EBOA,
(ii) entered into a two-year lease with EBOA for the West Chester, Pennsylvania
distribution center and headquarters (the "Distribution Center"), which lease
grants EBOA an option to purchase the Distribution Center for $6.7 million and
(iii) assigned its intangible assets, including trademark and tradenames, to
Elbo Inc. ("Elbo") in exchange for all of the outstanding shares of capital
stock of Elbo. EB retained (i) all of the outstanding shares of capital stock of
EBOA, Elbo, EB International, Inc. and Electronics Boutique of Canada, Inc.
(collectively, the "Operating Shares"), (ii) its shares of Electronics Boutique
plc ("EB-UK"), an affiliate of the Company organized under the laws of the
United Kingdom, (iii) the Distribution Center and (iv) $17.5 million of cash,
accounts receivable and cash surrendered value of certain split-dollar life
insurance policies.
Immediately prior to completion of the sale of the Securities, (i) EB
will transfer the Operating Shares and its shares of EB-UK to the Selling
Securityholder in exchange for all of the outstanding shares of capital stock of
the Selling Securityholder, (ii) the Selling Securityholder will contribute the
Operating Shares to the Company in exchange for 15,794,100 shares of Common
Stock and (iii) the Company will acquire from the Xxx Shareholders (as defined
in the Prospectus) and EB Services Corp. ("EB Services Corp."), for an aggregate
of 100 shares of Common Stock, 99.99% of the outstanding partnership interests
of EB Services Company, LLP ("EB Services"), with EB Services Corp. retaining a
0.01% general partnership interest. The transactions described in this and the
preceding paragraph (collectively, the "Reorganization") have been or will be
made pursuant to the terms of certain contribution, assignment and exchange
agreements (collectively, the "Reorganization Agreements") among EB, EBOA, Elbo,
EB Services Corp., EB Services, the Selling Securityholder (collectively, the
"Affiliated Entities") and the Xxx Shareholders.
2. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with, each of
the several Underwriters and the Selling Securityholder that:
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(i) A registration statement on Form S-1 (File No. 333-48523)
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
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 (A)(1) or (A)(2) of this sentence as have been provided 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 shall be effective upon 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 all financial schedules and exhibits thereto and
including any information omitted therefrom pursuant to Rule 430A under
the Act and included in the Prospectus (as hereinafter defined); 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 the 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); 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;
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(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,
and the term "Term Sheet" means any term sheet that satisfies the
requirements of Rule 434 under the Act. Any reference herein to the
"date" of a Prospectus that includes a Term Sheet shall mean the date
of such Term Sheet.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus dated July 6, 1998 or any later date 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 and the 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 and the 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 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) and on the
Firm Closing Date and any Option Closing Date (both as hereinafter
defined), the 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 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, the
Registration Statement or any amendment thereto or the 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.
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(iii) If the Company has elected to rely on Rule 462(b) and
the Rule 462(b) Registration Statement has not been declared effective
(A) the Company has filed a Rule 462(b) Registration Statement in
compliance with and that is effective upon filing pursuant to Rule
462(b) and has received confirmation of its receipt and (B) 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.
(iv) The Company and each of its subsidiaries and Affiliated
Entities have been duly organized and are validly existing as
corporations under the laws of their respective jurisdictions 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 each of its subsidiaries, taken as a
whole.
(v) Except as otherwise described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) 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, 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.
(vi) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus). All of the
issued shares of capital stock of the Company (including but not
limited to the Securities being sold by the Selling Securityholder)
have been duly authorized and validly issued and are fully paid and
nonassessable. The Firm Securities and 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, fully paid and nonassessable. No
holders of outstanding shares of capital stock of the Company are
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 contemplated by this Agreement.
(vii) The issued and outstanding shares of capital stock of
each of the Company's subsidiaries have been duly authorized and
validly issued and are fully paid and nonassessable and are owned
beneficially by the Company free and clear of security interests,
liens, encumbrances or claims.
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(viii) Except for the shares of capital stock of each of the
subsidiaries listed on Exhibit 21.1 to the Registration Statement, the
Company does not, directly or indirectly, own any shares of stock or
any other equity securities of any corporation or have any equity
interest in any firm, partnership, association or other entity, except
as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus).
(ix) The capital stock of the Company conforms to the
description thereof contained in the Prospectus or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus.
(x) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Registration
Statement and the Prospectus (or, if the Prospectus is 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 consolidated
financial data set forth under the caption "Selected Consolidated
Financial and Operating Data" in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) fairly
present, on the basis stated in the Prospectus (or such Preliminary
Prospectus), the information included therein.
(xi) KPMG Peat Marwick LLP, who have audited certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated and
combined financial statements and schedules included in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), are independent
public accountants as required by the Act and the applicable rules and
regulations thereunder.
(xii) 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, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or similar laws affecting the rights and remedies of creditors
generally and subject to general principles of equity whether in a
court of law or equity.
(xiii) The execution and delivery of the Reorganization
Agreements to which the Company and the Affiliated Entities are parties
have been duly authorized by the Company and the Affiliated Entities,
as the case may be, and the Reorganization Agreements have been duly
executed and delivered by the Company, the Affiliated
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Entities and the Xxx Shareholders and are the valid and binding
agreements of the Company, the Affiliated Entities and the Xxx
Shareholders, enforceable against the Company, the Affiliated Entities
and the Xxx Shareholders in accordance with their respective terms ,
except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar
laws affecting the rights and remedies of creditors generally and
subject to general principles of equity whether in a court of law or
equity. The Reorganization has been consummated on the terms and
conditions set forth in the Prospectus.
(xiv) 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 or the
Prospectus and are not described therein (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), and, no such
proceedings have been threatened against the Company or any of its
subsidiaries or with respect to any of its properties; and no contract
or other document is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
or filed as required.
(xv) The issuance, offering and sale of the Securities being
issued and sold by the Company to the Underwriters pursuant to this
Agreement, the compliance by the Company with the other provisions of
this Agreement and the consummation of the other transactions
contemplated hereby and the consummation by the Company and the
Affiliated Entities of the Reorganization 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 the execution
hereof, such as may be required (and shall be obtained as provided in
this Agreement) under the Act or (B) except as otherwise described in
the Registration Statement or the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), conflict
with or result in a breach or violation of any 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 its properties are bound, or the charter
documents or bylaws 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, except, with respect to the
Reorganization, any such conflict, breach, violation or default that
would not have a material adverse effect on the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Company and its subsidiaries.
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(xvi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), (A) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its business 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; (B) neither the Company nor its
subsidiaries, if applicable, has incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction, not in the ordinary course of business; (C) neither the
Company nor any of its subsidiaries has purchased any of its
outstanding capital stock, or declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; and (D)
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 of this paragraph (xvi) as described
in or contemplated by the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus.
(xvii) 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 by the Selling Securityholder under this Agreement).
(xviii) 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, 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 any 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 any such
subsidiary, in each case of this paragraph (xviii) except as described
in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xix) 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
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that would have a material adverse effect on the condition (financial
or otherwise), management, business prospects, net worth or results of
operations of the Company and its subsidiaries, except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xx) The Company and its subsidiaries own or possess, 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 used by them in
connection with their respective businesses, and neither the Company
nor any such subsidiary has received any notice of, or has any
reasonable belief that its use constitutes, an 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, would have a material adverse
effect on the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the Company or such
subsidiary, except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xxi) 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 business
in which they are engaged; neither the Company nor any such subsidiary
has been refused any insurance coverage sought or applied for; and the
neither Company nor any such subsidiary has reason to believe that it
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not have a material adverse effect on the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Company and its subsidiaries, except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xxii) The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
its business except where failure to possess such certificates,
authorizations and permits would not have a material adverse effect on
the condition (financial or otherwise), management, business prospects,
net worth or results of operations of the Company or any of its
subsidiaries, 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 permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a material adverse effect on the
condition (financial or otherwise), management, business prospects, net
worth or results of operations of the Company and its subsidiaries,
except
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as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus).
(xxiii) 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 (the
"Investment Company Act"), and consummation of the transactions herein
contemplated will not cause the Company to become an investment
company subject to registration under the Investment Company Act.
(xxiv) The Company and its subsidiaries have filed all
foreign, federal, state and local tax returns that are required to be
filed or have requested extensions thereof (except in any case in which
the failure so to file would not have a material adverse effect on the
condition (financial or otherwise), management, business prospects, net
worth or results of operations of the Company or any of its
subsidiaries and have paid all taxes required to be paid by them and
any other assessment, fine or penalty levied against them, 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 the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) or except as would not otherwise have a material adverse
effect on the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the Company and its
subsidiaries.
(xxv) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to (A) the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants or to the storage, handling or transportation of hazardous
or toxic materials ("Environmental Laws") or (B) occupational safety
and health and the Company and its subsidiaries have received all
permits, licenses or other approvals required of it under applicable
federal and state Environmental Laws and occupational safety and health
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 for any such
violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals which would not,
singly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), management, business prospects, net
worth or results of operations of the Company and its subsidiaries,
except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). Neither the Company nor any of its subsidiaries has any
pending or, to the best of the Company's knowledge, threatened
environmental or occupational safety and health claims against it nor
are there circumstances with respect to any property or operations of
the Company or any such subsidiary that could reasonably be anticipated
to form the basis of a claim against the Company under any
Environmental Laws or occupational health and safety laws and
regulations which, singly
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or in the aggregate, would have a material adverse effect on the
condition (financial or otherwise), management, business prospects,
net worth or results of operations of the Company and its
subsidiaries, except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxvi) Each certificate signed by any officer of the Company
in his or her capacity as such and delivered to the Representatives or
counsel for the Underwriters shall be deemed to be a representation and
warranty by the Company to each Underwriter as to the matters covered
thereby.
(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) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), 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, except any such default that would not
have a material adverse effect on the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Company and its subsidiaries.
(xxix) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), 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.
(xxx) The Company has not distributed and, prior to the later
of (A) 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
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other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus, or any materials, if any,
permitted by the Act.
(xxxi) The Company and its subsidiaries have complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws
of Florida) to the extent such provisions are applicable to the Company
and its subsidiaries.
(xxxii) 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 the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(xxxiii) All offers and sales of the Company's capital stock
prior to the date hereof were at all relevant times exempt from the
registration requirements of the Act, and were the subject of an
available exemption from the registration requirements of all
applicable state securities or blue sky laws.
(b) The Selling Securityholder represents and warrants to, and agrees
with, each of the several Underwriters that:
(i) The Selling Securityholder has been duly organized and is
validly existing as a corporation under the laws of its jurisdiction of
incorporation 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 business requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Selling Securityholder.
(ii) Such Selling Securityholder has full power and authority
(corporate and other) to enter into this Agreement and to sell, assign,
transfer and deliver to the Underwriters the Securities to be sold by
such Selling Securityholder hereunder in accordance with the terms of
this Agreement; and this Agreement has been duly executed and delivered
by such Selling Securityholder and is the valid and binding agreement
of such Selling Securityholder, enforceable against such Selling
Securityholder in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws affecting the
rights and remedies of creditors generally and subject to general
principles of equity whether in a court of law or equity.
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(iii) Such Selling Securityholder has full power and authority
(corporate and other) to enter into the Reorganization Agreements to
which it is a party; and such Reorganization Agreements have been duly
executed and delivered by such Selling Securityholder and are the valid
and binding agreements of such Selling Securityholder, enforceable
against such Selling Securityholder in accordance with their terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally and subject to
general principles of equity whether in a court of law or equity.
(iv) Such Selling Securityholder has duly executed and
delivered a power of attorney and custody agreement (with respect to
such Selling Securityholder, the "Custody Agreement") in the form
heretofore delivered to the Representatives, appointing Xxxxx X. Xxx,
Xxxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxxxxx, and each of them as such
Selling Securityholder's attorney-in-fact (the "Attorneys-in-Fact")
with authority to execute, deliver and perform this Agreement on behalf
of the Selling Securityholder and appointing First Chicago Trust
Company of New York, 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
Securityholder hereunder have been deposited with the Custodian
pursuant to the Custody Agreement for the purpose of delivery pursuant
to this Agreement. Such Selling Securityholder has full power and
authority (corporate and other) to enter into the Custody Agreement and
to perform its obligations under the Custody Agreement. The Custody
Agreement has been duly executed and delivered by such Selling
Securityholder and, assuming due authorization, execution and delivery
by the Custodian, is the valid and binding agreement of such Selling
Securityholder, enforceable against such Selling Securityholder in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws affecting the rights and remedies of
creditors generally and subject to general principles of equity whether
in a court of law or equity.
(v) Such Selling Securityholder agrees that each of the
Securities represented by the certificates held in custody under the
Custody Agreement is subject to the interests of the Underwriters
hereunder, that the arrangements made for such custody, the appointment
of the Attorneys-in-Fact and the right, power and authority of the
Attorneys- in-Fact to execute and deliver this Agreement, to agree on
the price at which the Securities (including the Selling
Securityholder's Securities) are to be sold to the Underwriters, and to
carry out the terms of this Agreement, are to the extent provided in
the Custody Agreement irrevocable and that the obligations of the
Selling Securityholder hereunder shall not be terminated, except as
provided in this Agreement or the Custody Agreement, by any act of the
Selling Securityholder, by operation of law or otherwise.
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(vi) Such Selling Securityholder is the lawful record and
beneficial owner of the Securities to be sold by such Selling
Securityholder hereunder and upon sale and delivery of, and payment
for, such Securities as provided herein, the Selling Securityholder
will convey good and marketable title to such Securities, free and
clear of any security interests, liens, encumbrances, claims or other
defects.
(vii) Such Selling Securityholder 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 by such
Selling Securityholder under this Agreement).
(viii) The sale by such Selling Securityholder of Securities
pursuant hereto is not prompted by any adverse information concerning
the Company that is not set forth in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(ix) The sale of the Securities to the Underwriters by such
Selling Securityholder pursuant to this Agreement, the compliance by
such Selling Securityholder with the other provisions of this Agreement
and the Custody Agreement and the consummation of the other
transactions contemplated hereby and the consummation by such Selling
Securityholder of the transactions contemplated by the Reorganization
Agreements do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as has 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 material agreement or
instrument to which such Selling Securityholder is a party or by which
such Selling Securityholder or any of such Selling Securityholder's
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 Securityholder.
(x) To the extent that any statements or omissions are made in
the Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by such
Selling Securityholder specifically for use therein,
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such information in the Preliminary Prospectus, the Registration
Statement or the Prospectus and any amendments or supplements thereto,
when they become effective or are filed with the Commission, as the
case may be, did and will conform in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading. Such
Selling Securityholder has reviewed the Prospectus (or if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Registration Statement, and the information
regarding such Selling Securityholder set forth therein under the
caption "Principal and Selling Shareholders" is complete and accurate.
(xi) Such Selling Securityholder has not distributed and,
prior to the later of (A) 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
Preliminary Prospectus and the Prospectus or any supplement or
amendment thereto, or any materials, if any permitted by the Act.
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, the Company agrees to issue and sell to, and the Selling Securityholder
agree to sell to, each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company and the Selling
Securityholder at a purchase price of $_____ per share, the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule 1 hereto.
The Company's Firm Securities shall consist of 4,375,000 shares of Common Stock
and the Selling Securityholder's Firm Securities shall consist of 1,875,000
shares of Common Stock. The number of Firm Securities to be purchased by each
Underwriter from the Company and each Selling Securityholder shall be as nearly
as practicable in the same proportion to the total number of Firm Securities
being sold by the Company and each Selling Securityholder (with the number of
shares to be sold by each Selling Securityholder being set forth opposite such
Selling Securityholder's name in Schedule 2 hereto) as the total number of Firm
Securities to be purchased by such Underwriter bears to the total number of Firm
Securities to be purchased by the Underwriters hereunder. 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 the Selling Securityholder at least 48
hours prior to the Firm Closing Date, shall be delivered by or on behalf of the
Company and the Selling Securityholder 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 payable in same-day
funds (the "Wired Funds") to the account of the Company in the case of the
Company's Firm Securities and to the order of the Custodian in the case of the
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Selling Securityholder's Firm Securities. Such delivery of and payment for the
Firm Securities shall be made at the offices of King & Xxxxxxxx, 0000 Avenue of
the Americas, Xxx Xxxx, Xxx Xxxx 00000-0000 at 9:30 A.M., New York City time, on
July___, 1998; 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 the Selling
Securityholder will make such certificate or certificates for the Firm
Securities available for checking and packagingby the Representatives at the
offices of the Company's transfer agent or registrar or of Prudential Securities
Incorporated in New York, New York 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 Selling Securityholder 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 price per share 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 Nasdaq Stock
Market's National Market (the "Nasdaq National Market") 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 Selling Securityholder 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
Selling Securityholder 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 Option Securities. Upon exercise of the option as provided
herein, the Selling Securityholder 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 (severally and not jointly) shall become obligated 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 with respect to the sale of the
Firm Securities, except that reference therein to
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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 Securityholder hereby acknowledge that the wire
transfer by or on behalf of the Underwriters of the purchase price for any
Securities does not constitute the 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 the Securities
from the Company and the Selling Securityholder. Furthermore, in the event that
the Underwriters wire funds to the Company and the Selling Securityholder prior
to the completion of the closing of a purchase of the Securities, the Company
and the Selling Security holder hereby acknowledge that until the Underwriters
execute and deliver a receipt for the Securities, by facsimile or otherwise, the
Company and the Selling Securityholder 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 the Securities is not completed and the Wired Funds are not returned
by the Company and the Selling Securityholder to the Underwriters on the same
day the Wired Funds were received by the Company and the Selling Securityholder,
the Company and the Selling Securityholder agree to pay to the Underwriters in
respect of each day the Wired Funds are not returned by it, in same- day funds,
interest on the amount of Wired Funds in an amount representing the
Underwriters' cost of financing as reasonably determined by Prudential
Securities Incorporated. Upon satisfactory receipt of the Securities by the
Underwriters in accordance with all the terms of this Agreement and the
compliance by the Company and the Selling Securityholder with all terms of this
Agreement to be performed on or before the Closing Date, the Underwriters shall
execute the receipt described above for the Securities.
(d) It is understood that either 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 of the Company and the Selling Securityholder.
(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
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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 and the 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, 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, Term Sheet or any amendment to the Registration
Statement or any Rule 462(b) Registration Statement of which the
Representatives 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,
which consent shall not have been unreasonably withheld. 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 any Rule 462(b) Registration Statement or
amendments or supplements to the 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 or any amendment or
supplement thereto has been filed and will provide evidence reasonably
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 preventing
or suspending the use of any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, (B) the suspension of the
qualification of the 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 Prospectus or the 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 arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws
of such jurisdictions as the Representatives may designate and will
continue such qualifications in effect for as long
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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 Option Closing Date, any event occurs as a
result of which the 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 to comply with the Act or the 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 that corrects such statement or omission
or effects such compliance.
(v) The Company will, without charge, provide (A) to each of
the Representatives and counsel for the Underwriters a signed copy of
the registration statement originally filed with respect to the
Securities and each amendment thereto and any Rule 462(b) Registration
Statement (in each case including exhibits thereto), (B) to each other
Underwriter, a conformed copy of such registration statement or any
Rule 462(b) 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 or the 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 PM, New York City time,
on the date of determination of the public offering price, if such
determination occurred at or prior to 10:00 AM, New York City time, on
such date or (2) 2:00 PM, New York City time, on the business day
following the date of determination of the public offering price, if
such determination occurred after 10:00 AM, New York City time, on such
date, will deliver to the Underwriters, 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.
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(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 any securities
convertible into, or exchangeable or exercisable for, shares of
Common Stock or other capital stock of the Company, or any right to
purchase or acquire Common Stock or other capital stock of the
Company for a period of 360 days after the date hereof, except (A)
pursuant to this Agreement and (B) for issuances of options
pursuant to stock option plans and employment agreements in
existence on the date hereof or as disclosed in the Prospectus (or
if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(ix) 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 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 by the Selling
Securityholder under this Agreement).
(x) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the
Option Closing Date, any rumor, publication or event relating to or
affecting the Company or its subsidiaries shall occur as a result of
which in your reasonable 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), the Company will, after 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.
(xi) The Company will obtain the agreements described in
Section 7(h) hereof from all persons other than the Selling
Securityholder prior to the Firm Closing Date.
(xii) The Company will cause the Securities to be issued and
sold by it to be duly included for quotation on the Nasdaq National
Market prior to the Firm Closing Date. The Company will ensure that the
Securities remain included for quotation on the Nasdaq National Market
or will be listed on a national exchange following the Firm Closing
Date for a period of at least two years.
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(xiii) During a period of five years from the effective date
of the Registration Statement, the Company will furnish to you and,
upon request, to each of the other Underwriters, without charge, (A)
copies of all reports or other communications (financial or other)
furnished to securityholders, (B) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange and (C) such additional
publicly available information concerning the business and financial
condition of the Company and its subsidiaries, if any, as you may
reasonably request.
(xiv) 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
(A) 10:00 P.M. Eastern time on the date of this Agreement and (B) the
time confirmations are sent or given, as specified by Rule 462(b)(2).
(b) The Selling Securityholder covenants and agrees with each of the
Underwriters that:
(i) Such Selling Securityholder 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 any securities
convertible into, or exchangeable or exercisable for, Common Stock or
other capital stock of the Company, or any right to purchase or acquire
Common Stock or other capital stock of the Company for a period of 360
days after the date hereof, except (A) pursuant to this Agreement or
(B) as consented to in writing by Prudential Securities Incorporated.
(ii) Such Selling Securityholder will not, directly or
indirectly, (A) take 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) (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 by the Selling Securityholder 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 Securityholder agrees to deliver to the
Representatives prior to or on the Firm Closing Date a properly
completed and
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executed United States Treasury Department Form W-8 or W-9 (or other
applicable form or statement specified by the Treasury Department
regulations in lieu thereof).
6. Expenses. The Company will pay all costs and expenses incident to
the performance of the obligations of the Company and the Selling
Securityholder under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant
to Section 12 hereof, including all costs and expenses incident to (a) the
printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed
with respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda,
(b) all arrangements relating to the delivery to the Underwriters of copies
of the foregoing documents, (c) the fees and disbursements of the counsel,
the accountants and any other experts or advisors retained by the Company,
(d) preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Securities, including transfer agent's and
registrar's fees and the Custodian's fees, (e) the qualification of the
Securities under state securities and blue sky laws, including filing fees
and reasonable fees and disbursements of counsel for the Underwriters
relating thereto, (f) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities, (g) any
listing of the Securities on the Nasdaq National Market, (h) 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 (i) 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). Any transfer taxes imposed on the sale
of the Securities to the several Underwriters will be paid by the Company and
the Selling Securityholder pro rata. 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 12 hereof (other than Section
12(a)(v) hereof) or because of any failure, refusal or inability on the part
of the Company or the Selling Securityholder to perform all obligations and
satisfy all conditions on its part to be performed or satisfied hereunder
other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters upon demand for all reasonable out-of-pocket
expenses (including reasonable counsel fees and disbursements) that shall
have been incurred by them in connection with the proposed purchase and sale
of the Securities. The Company and the Selling Securityholder 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 Securityholder
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 made pursuant to the provisions hereof, to the
performance by the Company and the
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Selling Securityholder of its 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 upon 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 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, 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
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 shall have been issued, and
no proceedings for that purpose shall have been instituted or threatened
or, to the knowledge of the Company 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 or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP, counsel
for the Company, to the effect that:
(i) The Company, EBOA and Elbo have been duly organized and are
validly existing as corporations in good standing under the laws of
their respective jurisdictions 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 would not have a material adverse effect on the condition
(financial or otherwise), management, business prospects, net worth or
results of operations of the Company and its subsidiaries.
(ii) Except as disclosed in the Prospectus, the Company and each
of the Company's domestic subsidiaries listed in Exhibit 21.1 to the
Registration Statement (the "Domestic Subsidiaries") have the
corporate power to own or lease their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Prospectus, and the Company has the corporate
-23-
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; all of the issued
shares of capital stock of the Company (including but not limited to
the Securities being sold by the Selling Securityholder) have been
duly authorized and validly issued and are fully paid and
nonassessable, have been issued in compliance with all applicable
federal and state securities laws and were not issued in violation of
or subject to any statutory or, to such counsel's knowledge,
contractual preemptive rights or other rights to subscribe for or
purchase securities; the Securities being issued and sold by the
Company 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; the Securities have been duly listed for
trading on the Nasdaq National Market; no holders of outstanding
shares of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Securities;
and, except as disclosed in the Prospectus, no holders of securities
of the Company are entitled to have such securities registered under
the Registration Statement.
(iv) (A) the issued and outstanding shares of capital stock of
each of the Domestic Subsidiaries have been duly authorized and
validly issued and are fully paid and nonassessable and, to the
knowledge of such counsel, are owned beneficially by the Company free
and clear of security interests, liens, encumbrances or claims and (B)
to the knowledge of such counsel, other than the subsidiaries and the
entities of the Company listed in exhibit 21.1 to the Registration
Statement (the "Subsidiaries"), the Company does not directly or
indirectly own any shares of stock or any other equity securities of
any corporation or have any direct or indirect equity interest in any
firm, partnership, association or other entity, which corporation,
firm, partnership, association or other entity would, individually or
when aggregated with all such other corporations, firms, partnerships,
associations or other entities, be considered a "significant
subsidiary" within the meaning of Rule 1-02 of Regulation S-X under
the Act.
(v) The capital stock of the Company conforms as to legal matters
in all material respects to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock," and the
statements set forth under the headings "Reorganization" and "Business
- Legal Proceedings" in the Prospectus, insofar as such statements
constitute a summary of the legal matters, documents and proceedings
referred to therein, provide a fair summary of such legal matters,
documents and proceedings.
-24-
(vi) 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.
(vii) The execution and delivery of the Reorganization Agreements
to which the Company and the Affiliated Entities are parties have been
duly authorized by the Company and the Affiliated Entities, as the
case may be, and the Reorganization Agreements have been duly executed
and delivered by the Company, the Affiliated Entities and the Xxx
Shareholders and are the valid and binding agreements of the Company,
the Affiliated Entities and the Xxx Shareholders, enforceable against
the Company, the Affiliated Entities and the Xxx Shareholders in
accordance with their respective terms, except as such enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws now or hereafter in effect
relating to creditors' rights generally and subject to general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Reorganization
has been consummated on the terms and conditions set forth in the
Prospectus.
(viii) To such counsel's knowledge, (A) no legal or governmental
proceedings are pending to which the Company or any of the
Subsidiaries is a party or to which the property of the Company or any
of the Subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not described
therein, no such proceedings have been threatened against the Company
or any of the Subsidiaries or with respect to any of their respective
properties and (B) all contracts or other documents required by Item
601 of Regulation S-K to be filed as exhibits to the Registration
Statement have been so filed.
(ix) Except as disclosed in the Prospectus and except with
respect to the UK Services Agreement as to which such counsel need
express no opinion, the issuance, offering and sale of the Securities
being issued and sold by the Company to the Underwriters pursuant to
this Agreement, the compliance by the Company with the other
provisions of this Agreement and the consummation of the 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, (1) any indenture,
mortgage, deed of trust, lease or other agreement or instrument filed
as an exhibit to the Registration Statement or any other material
agreement otherwise known to such counsel to which the Company or any
of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties
-25-
are bound, (2) the charter documents or by-laws of the Company or any
of the Subsidiaries, or (3) any statute, rule or regulation, or any
judgment, decree or order of any court or other governmental authority
or any arbitrator known to such counsel, and applicable to the Company
or any of the Subsidiaries.
(x) To the knowledge of such counsel, (A) the Company and the
Subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, the
absence of which could have a material adverse effect on the condition
(financial or otherwise), management, business prospects, net worth or
results of operations of the Company and the Subsidiaries, and (B)
neither the Company nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition
(financial or otherwise), management, business prospects, net worth or
results of operations of the Company and the Subsidiaries, except, in
all cases, as described in or contemplated by the Prospectus.
(xi) 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) has been made in the
manner and within the time period required by Rules 434 and 424(b);
and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto
has been issued, and no proceedings for that purpose have been
instituted or, to the knowledge of such counsel, are contemplated or
threatened by the Commission.
(xii) The registration statement originally filed with respect to
the Securities and each amendment thereto, any Rule 462(b)
Registration Statement and the Prospectus (in each case other than the
financial statements and other financial 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 and the rules and regulations of the Commission thereunder.
(xiii) The Company is not an "investment company" under the
Investment Company Act, and consummation of the transactions herein
contemplated will not cause the Company to become an investment
company subject to registration under the Investment Company Act.
(xiv) To such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding (A) securities or obligations of
the Company
-26-
convertible into or exchangeable for any capital stock of the Company,
(B) warrants, rights or options to subscribe for or purchase from the
Company any such capital stock or any such convertible or exchangeable
securities or obligations, or (C) obligations of the Company to issue
any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(xv) If the Company elects to rely on Rule 434, the Prospectus is
not "materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time of its
effectiveness or any effective post-effective amendment thereto
(including such information that is permitted to be omitted pursuant
to Rule 430A).
Such counsel shall also state that they have participated in
conferences with officers and representatives of the Company at which the
contents of the Prospectus and the Registration Statement and related
matters and documents were discussed. The limitations inherent in the
review of factual and other matters included in or contemplated by the
Prospectus and the Registration Statement and the character of
determinations involved in the registration process are such, however, that
such counsel does not make any warranty or representation concerning, or
assume any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Prospectus and the Registration Statement
(other than as set forth in Section 7(b)(v) hereof). Based upon and subject
to the foregoing, nothing has come to such counsel's attention which would
lead them to believe that (A) the Registration Statement (other than the
financial statements, including the notes thereto, and schedules and other
financial and statistical data included therein, as to which they express
no belief nor render any opinion), 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 in order to make the statements
therein not misleading, and (B) the Prospectus (other than the financial
statements, including the notes thereto, and schedules and other financial
and statistical data included therein, as to which they express no belief
nor render any opinion), as of its date or the date of such opinion,
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact necessary in order to make the statements
therein, in 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.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date
of such opinion.
-27-
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Fladgate Xxxxxxx to the effect that:
(i) Except as disclosed in the Prospectus, the issuance, offering
and sale of the Securities being issued and sold by the Company to the
Underwriters 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, the UK Services Agreement.
(d) The Representatives shall have received an opinion, dated the
Firm Closing Date of, Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP,
counsel for the Selling Securityholder, to the effect that:
(i) Such Selling Securityholder has been duly incorporated
and is validly existing as a corporation under the laws of its
jurisdiction of incorporation and has the corporate power to own,
lease and operate its properties and to execute, deliver and
perform this Agreement and the Custody Agreement.
(ii) Such Selling Securityholder has full corporate power
and authority to enter into this Agreement and the Custody
Agreement. Such Selling Securityholder has duly authorized,
executed and delivered this Agreement and the Custody Agreement,
and the Custody Agreement constitutes the valid and binding
agreement of such Selling Securityholder enforceable against such
Selling Securityholder in accordance with its respective terms,
except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or
similar laws now or hereafter in effect relating to creditors'
rights generally and subject to general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity).
(iii) Such Selling Securityholder has full corporate power
and authority to enter into the Reorganization Agreements to
which it is a party; and such Reorganization Agreements have been
duly executed and delivered by such Selling Securityholder and
are the valid and binding agreements of such Selling
Securityholder, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws now or hereafter in effect relating to
creditors' rights generally and subject to general principles of
equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
(iv) Immediately prior to the delivery of the Securities
being sold by such Selling Securityholder, such Selling
Securityholder was the sole registered
-28-
owner of such Securities and, upon registration of such
Securities in the names of the purchasers thereof or their
nominees, assuming that such purchasers purchased such Securities
in good faith without notice of any adverse claims as defined in
Section 8-102 of the Uniform Commercial Code in effect in the
state of New York, such purchasers will have acquired all the
rights of such Selling Securityholder in such Securities free of
any adverse claim, any lien in favor of the Company or
restrictions on transfer imposed by the Company.
(v) Except as disclosed in the Prospectus and except with
respect to the UK Services Agreement as to which such counsel
need express no opinion, the sale of the Securities to the
Underwriters by such Selling Securityholder pursuant to this
Agreement, the compliance by the Selling Securityholder with
the other 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 has 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 material agreement or instrument to which a Selling
Securityholder is a party or by which a Selling
Securityholder or any of such Selling Securityholder's
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 such counsel applicable
to such Selling Securityholder.
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, the Selling
Securityholder and public officials.
References to the Registration Statement and the 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 King & Spalding, counsel for the
Underwriters, with respect to the issuance and sale of the Firm
Securities, the Registration Statement, the Prospectus and such other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(f) The Representatives shall have received from KPMG Peat
Marwick 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:
-29-
(i) they are independent accountants with respect to the
Company and its consolidated subsidiaries within the meaning of
the Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated and combined
financial statements and schedules of the Company included in the
Registration Statement and the Prospectus comply in form in all
material respects with the applicable accounting requirements of
the Act and the related published rules and regulations;
(iii) on the basis of (A) a reading of the interim
consolidated and combined financial data for the period from the
date of the latest balance sheet included in the Registration
Statement and the Prospectus to the date of the latest available
interim consolidated financial data, (B) a reading of the minute
books of the shareholders, the board of directors and any
committees thereof of the Company and its consolidated
subsidiaries, from February 1, 1998 through a date not more than
five days prior to the date of such letter, and (C) 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:
(Y) at the date of the latest available interim
consolidated financial data and at a specific date not more
than five business days prior to the date of such letter,
there was any change in long-term or short-term debt of the
Company and its consolidated subsidiaries or any decreases
in net current assets (working capital) or shareholders'
equity of the Company and its consolidated subsidiaries, in
each case compared with amounts shown on the January 31,
1998 audited consolidated and combined balance sheet
included in the Registration Statement and the Prospectus,
or for the period from January 31, 1998 to such specified
date there were any decreases, as compared with the prior
comparable period, in net sales or 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 (as
requested by the Representatives), 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 and the Prospectus and have
compared such amounts, percentages and financial information with
such records of the Company and its consolidated subsidiaries and
with information derived from
-30-
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 from 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.
References to the Registration Statement and the Prospectus in
this paragraph (f) with respect to either letter referred to above
shall include any amendment or supplement thereto at the date of such
letter.
(g) The Representatives shall have received a certificate, dated
the Firm Closing Date, of the principal executive officer and the
principal financial or accounting officer 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,
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 has been issued,
and no proceedings for that purpose have been instituted or, to
the best of such officer's knowledge, are contemplated or
threatened by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, (A) neither the Company nor any of its subsidiaries
has sustained any material loss or interference with its business
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
-31-
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
its subsidiaries; (B) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation,
direct or contingent, or entered into any material transaction
not in the ordinary course of business; (C) neither the Company
nor any of its subsidiaries has purchased any of its outstanding
capital stock, or declared, paid or otherwise made any dividend
or distribution of any kind on its capital stock; and (D) 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 the Prospectus (exclusive of any amendment or supplement
thereto).
(h) The Representatives shall have received from the Selling
Securityholder, the Xxx Shareholders and each executive officer and
director of the Company an agreement to the effect that such person or
entity 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, granted any
option to purchase or other sale or disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock or other capital stock of the
Company, or any right to purchase or acquire Common Stock or other
capital stock of the Company for a period of 360 days after the date
of this Agreement, except (A) pursuant to this Agreement, (B) for
issuances of options pursuant to stock option plans and employment
agreements in existence on the date hereof and (C) pursuant to that
letter agreement, dated July __, 1998, between Prudential Securities
Incorporated and Xx. Xxxxx X. Xxx.
(i) 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.
(j) Prior to the commencement of the offering of the Securities,
the Securities to be issued and sold by the Company shall have been
included for quotation on the Nasdaq National Market.
(k) The Underwriters shall have received a certificate from the
Selling Securityholder, signed by the Selling Securityholder, dated
the Firm Closing Date, to the effect that:
(i) the representations and warranties of the Selling
Securityholder in this Agreement are true and correct as if made
on and as of the Firm Closing Date;
-32-
(ii) with respect to statements or omissions in (A) the
Registration Statement, as amended as of the Firm Closing Date,
made in reliance upon and in conformity with written information
furnished to the Company by the Selling Securityholder
specifically for use therein, the Registration Statement 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 (B) the Prospectus, as amended or supplemented as
of the Firm Closing Date, made in reliance upon and in conformity
with written information furnished to the Company by the Selling
Securityholder specifically for use therein does not include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statement therein, in the
light of the circumstances under which they were made, not
misleading; and
(iii) the Selling Securityholder has performed all covenants
and agreements on its part to be performed or satisfied at or
prior to the Firm Closing Date.
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.
8. Indemnification and Contribution.
(a) Except as provided in Section 8(e), the Company, the Selling
Securityholder and the Xxx Shareholders, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Securities and Exchange Act of 1934, as amended (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 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,
-33-
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the 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 or the 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, in the light
of the circumstances under which they were made, not misleading,
or
(iv) any untrue statement or alleged untrue statement of any
material fact required to be stated in or necessary to make the
statements in any audio or visual materials provided by the
Company and used in connection with the marketing of the
Securities, in light of the circumstances under which they were
made, not misleading, including without limitation, slides,
videos, films and tape recordings, 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 Company, the
Selling Securityholder and the Xxx Shareholders 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
amendment or supplement thereto or any Application in reliance
upon and in conformity with written information furnished to the
Company, the Selling Securityholder or the Xxx Shareholders by
such Underwriter through the Representatives specifically for use
therein. This indemnity agreement will be in addition to any
liability which the Company, the Selling Securityholder or the
Xxx Shareholders may otherwise have. The Company, the Selling
Securityholder and the Xxx Shareholders 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
-34-
such controlling persons from all liability arising out of such claim,
action, suit or proceeding.
(b) 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, the Selling Securityholder, the Xxx
Shareholders and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which the Company or any such
director or officer of the Company, the Selling Securityholder, the Xxx
Shareholders or any such controlling person of the Company or the Selling
Securityholder may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the 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
or the Prospectus or any amendment or supplement thereto, or any Application
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
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 or any such director, officer or controlling person or the
Selling Securityholder or the Xxx Shareholders 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.
(c) 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 ction on behalf of such indemnified party or
parties. After notice from
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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) of this
Section 8, representing the indemnified parties under such paragraph (a) who
are parties to such action or actions) or (ii) the indemnifying party does
not promptly retain counsel reasonably 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.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 8 is 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, the Selling Securityholder and the Xxx Shareholders 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, the Selling Securityholder and the Xxx
Shareholders 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 Securityholder 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 Securityholder 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
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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 (d). Notwithstanding any
other provision of this paragraph (d), 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 within 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.
(e) Notwithstanding anything contained herein to the contrary, the
liability of the (i) Selling Securityholder under the indemnity and
contribution agreements contained in this Section 8 shall be limited to an
amount equal to the initial public offering price of the Securities to be
sold by such Selling Securityholder to the Underwriters less the amount of
the underwriting discount and commission paid thereon to the Underwriters by
the Selling Securityholder, and (ii) Xxx Shareholders under the indemnity and
contribution agreements contained in this Section 8 shall be limited to an
amount that equals the sum of (A) the amounts distributed to the Xxx
Shareholders in 1998, including any amounts to be distributed prior to
completion of the Reorganization, plus (B) the value of any assets retained
by EB pursuant to the Reorganization, as more fully described in "Certain
Transactions" of the Prospectus, plus (C) an amount equal to the proceeds
received by the Selling Securityholder in connection with the sale of the
Securities. The parties hereto agree that the amounts referred to in the
foregoing clauses (A) and (B) shall not exceed in the aggregate $50 million.
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
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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 11 hereof. Nothing contained
herein shall relieve a defaulting Underwriter of any liability it may have to
the Company or the Selling Securityholder for damages caused by its default.
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. Default by Selling Securityholder. If on either the Firm Closing
Date or the Option Closing Date, the Selling Securityholder fails to sell the
Firm Securities or the Option Securities, whichever is applicable, that the
Selling Securityholder has agreed to sell on such date as set forth herein,
the Company agrees that it will sell that number of shares of Common Stock to
the Underwriters which represents either the Selling Securityholder's Firm
Securities or Option Securities, whichever is applicable, that the Selling
Securityholder has failed to so sell or such lesser number as may be
requested by you.
11. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and its officers,
the Selling Securityholder 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, the Selling Securityholder, 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
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.
12. 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 or the Selling Securityholder given prior to the Firm
Closing Date or the related Option Closing Date, respectively, in the event
that the Company or the Selling Securityholder shall have failed,
-38-
refused or been unable to perform all obligations and satisfy all conditions
on their 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 its business 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), management, 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 (exclusive of any subsequent amendment or supplement
thereto);
(ii) trading in the Common Stock shall have been suspended by
the Commission or the Nasdaq National Market;
(iii) trading in securities generally on the Nasdaq National
Market shall have been suspended or minimum or maximum prices shall
have been established on any such exchange or market system;
(iv) a banking moratorium shall have been declared by New York
or United States authorities; or
(v) 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.
(b) Termination of this Agreement pursuant to this Section 12 shall be
without liability of any party to any other party except as provided in Section
11 hereof.
13. Information Supplied by Underwriters. The statements set forth in
the last paragraph on the front cover page and in the first, third and ninth
paragraphs under the heading "Underwriting" in any Preliminary Prospectus or the
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.
-39-
14. 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; if sent to the Company, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to the Company at 000
Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Chief
Executive Officer and President; if sent to the Selling Securityholder, shall be
delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to the Selling Securityholder at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxx 00000, Attention: President.
15. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the several Underwriters, the Company, the
SellingSecurityholder, the Xxx Shareholders 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 Securityholder contained in Section 8 of this Agreement
shall also be for the benefit of any person 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
and the Selling Securityholder, the officers of the Company who have signed the
Registration Statement and any person or persons who control the Company or the
Selling Securityholder within the meaning of Section 15 of the Act or Section 20
of the Exchange Act. No purchaser of Securities from any Underwriter shall be
deemed a successor because of such purchase.
16. 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.
17. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, each Selling Securityholder accepts
for itself and in connection with its properties, generally and unconditionally,
the nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. The Selling Securityholder designates
and appoints _______________, and such other persons as may hereafter be
selected by the Selling Securityholder irrevocably agreeing in writing to so
serve, as its agent to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby acknowledged by the
Selling Securityholder to be effective and binding service in every respect. A
copy of any such process so served shall be mailed by registered mail to the
Selling
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Securityholder at the address provided in Section 14 hereof; provided, however,
that, unless otherwise provided by applicable law, any failure to mail such copy
shall not affect the validity of service of such process. If any agent appointed
by the Selling Securityholder refuses to accept service, the Selling
Securityholder hereby agrees that service of process sufficient for personal
jurisdiction in any action against the Selling Securityholder in the State of
New York may be made by registered or certified mail, return receipt requested,
to the Selling Securityholder at its address provided in Section 14 hereof, and
the Selling Securityholder hereby acknowledges that such service shall be
effective and binding in every respect. Nothing herein shall affect the right to
serve process in any other manner permitted by law or shall limit the right of
any Underwriter to bring proceedings against the Selling Securityholder in the
courts of any other jurisdiction.
18. 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.
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 and each
of the several Underwriters.
Very truly yours,
ELECTRONICS BOUTIQUE HOLDINGS CORP.
By:________________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: President, Chief Executive Officer
EB NEVADA INC.
By:________________________________________
Name:
Title: Attorney-in-fact acting on behalf
of the Selling Securityholder
XXX SHAREHOLDERS
___________________________________________
Name: Xxxxx X. Xxx
___________________________________________
Name: Xxxxx X. Xxx
Trust of Xxxxx X. Xxx
Dated December 31, 1987,
By:____________________________________
Name: Xxxxx X. Xxx
Title: Trustee
By:____________________________________
Name: Xxxx X. Xxx
Title: Trustee
By:____________________________________
Name: Xxxx X.X. Xxxxxx
Title: Trustee
Trust of Xxxxx X. Xxx
Dated December 31, 1987
By:____________________________________
Name: Xxxxx X. Xxx
Title: Trustee
By:____________________________________
Name: Xxxxx X. Xxx
Title: Trustee
By:____________________________________
Name: Xxxx X.X. Xxxxxx
Title: Trustee
Trust of Xxxx X. Xxx
Dated December 31, 1987
By:____________________________________
Name: Xxxxx X. Xxx
Title: Trustee
By:____________________________________
Name: Xxxx X. Xxx
Title: Trustee
By:____________________________________
Name: Xxxx X.X. Xxxxxx
Title: Trustee
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
PRUDENTIAL SECURITIES INCORPORATED
XXXXX XXXXXX INC.
By: PRUDENTIAL SECURITIES INCORPORATED
By: ____________________________________
Name: Xxxx-Xxxxxx Canfin
Title: Managing Director
For itself and on behalf of the Underwriters.
SCHEDULE I
UNDERWRITERS
Number of Firm
Securities
Underwriter to be Purchased
----------- ---------------
Prudential Securities Incorporated...................
Xxxxx Xxxxxx Inc.....................................
Total..........................................
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---------------
