Exhibit 1.1
3,000,000 Shares of Common Stock
XXXXXXX DENVER, INC.
UNDERWRITING AGREEMENT
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March 23, 2004
BEAR, XXXXXXX & CO. INC.
As representative of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
Xxxxxxx Denver, Inc., a corporation organized and existing
under the laws of Delaware (the "Company"), proposes, subject to the terms
and conditions stated herein, to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 3,000,000
shares (the "Firm Shares") of its common stock, par value $.01 per share
(the "Common Stock"), and, for the sole purpose of covering over-allotments
in connection with the sale of the Firm Shares, at the option of the
Underwriters, up to an additional 450,000 shares (the "Additional Shares")
of Common Stock. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares." The Shares are more
fully described in the Registration Statement and Prospectus referred to
below. Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") is acting as sole lead
manager (the "Lead Manager") in connection with the offering and sale of the
Shares contemplated herein (the "Offering").
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form S-3
(No. 333-109086), and related preliminary prospectus for the registration
under the Securities Act of 1933, as amended (the "Securities Act"), of the
Shares and the offering from time to time in accordance with Rule 415 under
the Act, which registration statement, as so amended (including
post-effective amendments, if any), has been declared effective by the
Commission and copies of which have heretofore been delivered to the
Underwriters. The registration statement including the prospectus, financial
statements, schedules, exhibits and other information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Securities Act, is hereinafter referred to as the
"Registration Statement." If the Company has filed or is re-
quired pursuant to the terms hereof to file a registration statement
pursuant to Rule 462(b) under the Securities Act increasing the size of the
Offering by registering additional shares of Common Stock (a "Rule 462(b)
Registration Statement"), then, unless otherwise specified, any reference
herein to the term "Registration Statement" shall be deemed to include such
Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration
Statement, which, if filed, becomes effective upon filing, no other document
with respect to the Registration Statement has heretofore been filed with
the Commission. All of the Shares have been registered under the Securities
Act pursuant to the Registration Statement or, if any Rule 462(b)
Registration Statement is filed, will be duly registered under the
Securities Act with the filing of such Rule 462(b) Registration Statement.
No stop order suspending the effectiveness of either the Registration
Statement or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission. The Company, if required by the Securities Act and the rules and
regulations of the Commission (the "Rules and Regulations"), proposes to
file with the Commission pursuant to Rule 424(b) under the Securities Act
("Rule 424(b)") a prospectus supplement to the prospectus included in the
Registration Statement. Such prospectus supplement, in the form in which it
is to be filed with the Commission pursuant to Rule 424(b), and the
prospectus included as part of the Registration Statement at the time the
Registration Statement became effective, is hereinafter collectively
referred to as the "Prospectus," except that if any revised prospectus or
prospectus supplement shall be provided to the Underwriters by the Company
for use in connection with the Offering which differs from the Prospectus
(whether or not such revised prospectus or prospectus supplement is required
to be filed by the Company pursuant to Rule 424(b)), the term "Prospectus"
shall also refer to such revised prospectus or prospectus supplement, as the
case may be, from and after the time it is first provided to the
Underwriters for such use. Any preliminary prospectus or prospectus subject
to completion included in the Registration Statement or filed with the
Commission pursuant to Rule 424 under the Securities Act is hereafter called
a "Preliminary Prospectus." Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act (as
defined below) on or before the effective date of the Registration
Statement, the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be, and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include (i) the filing of any document under the Exchange Act
after the effective date of the Registration Statement, the date of such
Preliminary Prospectus or the date of the Prospectus, as the case may be,
which is incorporated therein by reference and (ii) any such document so
filed. All references in this Agreement to the Registration Statement, the
Rule 462(b) Registration Statement, a Preliminary Prospectus and the
Prospectus, or any amendments or supplements to any of the foregoing, shall
be deemed to include any copy thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
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(b) At the time of the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the Prospectus
is first filed with the Commission pursuant to Rule 424(b), when any
supplement to or amendment of the Prospectus is filed with the Commission,
when any document filed under the Exchange Act was or is filed and at the
Closing Date and the
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Additional Closing Date, if any (as hereinafter respectively defined), the
Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with
the applicable provisions of the Securities Act, the Exchange Act and the
Rules and Regulations and did not and will not contain an untrue statement
of a material fact and did not and will not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein (i) in the case of the Registration Statement, not misleading and
(ii) in the case of the Prospectus or any related Preliminary Prospectus in
light of the circumstances under which they were made, not misleading. When
any Preliminary Prospectus was first filed with the Commission (whether
filed as part of the registration statement for the registration of the
Shares or any amendment thereto or pursuant to Rule 424(a) under the
Securities Act) and when any amendment thereof or supplement thereto was
first filed with the Commission, such Preliminary Prospectus and any
amendments thereof and supplements thereto complied in all material respects
with the applicable provisions of the Securities Act, the Exchange Act and
the Rules and Regulations and did not contain an untrue statement of a
material fact and did not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. No
representation and warranty is made in this subsection (b), however, with
respect to any information contained in or omitted from the Registration
Statement or the Prospectus or any related Preliminary Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter through the Lead Manager specifically for use therein. The
parties acknowledge and agree that such information provided by or on behalf
of any Underwriter consists solely of the material included in the third and
twelfth paragraphs under the caption "Underwriting" in the Prospectus.
(c) KPMG LLP, who have certified the financial statements and
supporting schedules and information of the Company and its subsidiaries, as
of and for the year ended December 31, 2003, and of Syltone plc ("Syltone")
as of and for the year ended March 31, 2003, that are included or
incorporated by reference in the Registration Statement, are independent
public accountants as required by the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Rules and
Regulations. Xxxxxx Xxxxxxxx LLP, who have certified the financial
statements and supporting schedules and information of the Company and its
subsidiaries, as of and for the years ended December 31, 2001 and December
31, 2000, that are included or incorporated by reference in the Registration
Statement, were independent public accountants as required by the Securities
Act, the Exchange Act and the Rules and Regulations at the time of such
certification.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as disclosed
in the Registration Statement and the Prospectus, the Company has not
declared, paid or made any dividends or other distributions of any kind on
or in respect of its capital stock and there has been no material adverse
change or any development involving a prospective material adverse change,
whether or not arising from transactions in the ordinary course of business,
in or affecting (i) the business, condition (financial or otherwise),
results of operations, stockholders' equity, properties or prospects of the
Company and each subsidiary of the Company listed on Exhibit 21.0 to the
Company's Form 10-K for the fiscal year ended December 31, 2002 (the
"Subsidiaries"), individually or taken as a
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whole; (ii) the long-term debt or capital stock of the Company or any of its
Subsidiaries; or (iii) the Offering or consummation of any of the other
transactions contemplated by this Agreement, the Registration Statement or
the Prospectus (a "Material Adverse Change"). Since the date of the latest
balance sheet presented or incorporated by reference in the Registration
Statement and the Prospectus, neither the Company nor any Subsidiary has
incurred or undertaken any liabilities or obligations, whether direct or
indirect, liquidated or contingent, matured or unmatured, or entered into
any transactions, including any acquisition or disposition of any business
or asset, which are material to the Company and the Subsidiaries
individually or taken as a whole, except for liabilities, obligations and
transactions which are disclosed in the Registration Statement and the
Prospectus.
(e) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column headed "Actual"
under the caption "Capitalization" and, after giving effect to the Offering
and the other transactions contemplated by this Agreement, the Registration
Statement and the Prospectus, will be as set forth in the column headed "As
Adjusted" under the caption "Capitalization." All of the issued and
outstanding shares of capital stock of the Company are fully paid and
non-assessable and have been duly and validly authorized and issued, in
compliance with all applicable state, federal and foreign securities laws
and not in violation of or subject to any preemptive or similar right that
does or will entitle any person, upon the issuance or sale of any security,
to acquire from the Company or any Subsidiary any Common Stock or other
security of the Company or any Subsidiary or any security convertible into,
or exercisable or exchangeable for, Common Stock or any other such security
(any "Relevant Security"), except for such rights as may have been fully
satisfied or waived prior to the effectiveness of the Registration
Statement.
(f) The Shares have been duly and validly authorized and, when
delivered in accordance with this Agreement, will be duly and validly
issued, fully paid and non-assessable, will have been issued in compliance
with all applicable state, federal and foreign securities laws and will not
have been issued in violation of or subject to any preemptive or similar
right that does or will entitle any person to acquire any Relevant Security
from the Company or any Subsidiary upon issuance or sale of Shares in the
Offering. The Common Stock and the Shares conform to the descriptions
thereof contained in the Registration Statement and the Prospectus. Except
as disclosed in the Registration Statement and the Prospectus, neither the
Company nor any Subsidiary has outstanding warrants, options to purchase, or
any preemptive rights or other rights to subscribe for or to purchase, or
any contracts or commitments to issue or sell, any Relevant Security.
(g) The Subsidiaries are the only subsidiaries of the Company
within the meaning of Rule 405 under the Securities Act. Except for the
Subsidiaries, the Company holds no ownership or other interest, nominal or
beneficial, direct or indirect, in any corporation, partnership, joint
venture or other business entity. All of the issued shares of capital stock
of or other ownership interests in each Subsidiary have been duly and
validly authorized and issued and are fully paid and non-assessable and are
owned directly or indirectly by the Company free and clear of any lien,
charge, mortgage, pledge, security interest, claim, equity, trust or other
encumbrance, preferential arrangement, defect or restriction of any kind
whatsoever (any "Lien").
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(h) Each of the Company and the Subsidiaries has been duly
organized and validly exists as a corporation, partnership or limited
liability company in good standing under the laws of its jurisdiction of
organization. Each of the Company and the Subsidiaries has all requisite
power and authority to carry on its business as it is currently being
conducted and as described in the Prospectus, and to own, lease and operate
its respective properties. Each of the Company and the Subsidiaries is duly
qualified to do business and is in good standing as a foreign corporation,
partnership or limited liability company in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary, except
for those failures to be so qualified or in good standing which
(individually and in the aggregate) could not reasonably be expected to have
a material adverse effect on (i) the business, condition (financial or
otherwise), results of operations, stockholders' equity, properties or
prospects of the Company and the Subsidiaries, individually or taken as a
whole; (ii) the long-term debt or capital stock of the Company or any
Subsidiary; or (iii) the Offering or consummation of any of the other
transactions contemplated by this Agreement, the Registration Statement or
the Prospectus (any such effect being a "Material Adverse Effect").
(i) Each of the Company and the Subsidiaries has all necessary
consents, approvals, authorizations, orders, registrations, qualifications,
licenses, filings and permits of, with and from all judicial, regulatory and
other legal or governmental agencies and bodies and all third parties,
foreign and domestic (collectively, the "Consents"), to own, lease and
operate its properties and conduct its business as it is now being conducted
and as disclosed in the Registration Statement and the Prospectus, and each
such Consent is valid and in full force and effect, and neither the Company
nor any Subsidiary has received notice of any investigation or proceedings
which results in or, if decided adversely to the Company or any Subsidiary,
could reasonably be expected to result in, the revocation of, or imposition
of a materially burdensome restriction on, any Consent. Each of the Company
and the Subsidiaries is in compliance with all applicable laws, rules,
regulations, ordinances, directives, judgments, decrees and orders, foreign
and domestic, except where failure to be in compliance could not reasonably
be expected to have a Material Adverse Effect. No Consent contains a
materially burdensome restriction that is not disclosed in the Registration
Statement and the Prospectus.
(j) The Company has full right, power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated by this Agreement, the Registration
Statement and the Prospectus. This Agreement and the transactions
contemplated by this Agreement, the Registration Statement and the
Prospectus have been duly and validly authorized by the Company. This
Agreement has been duly and validly executed and delivered by the Company.
(k) The execution, delivery, and performance of this Agreement and
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus do not and will not (i) conflict
with, require consent under or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Subsidiary pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement, instrument,
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franchise, license or permit to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary or their respective
properties, operations or assets may be bound or (ii) violate or conflict
with any provision of the certificate or articles of incorporation, by-laws,
certificate of formation, limited liability company agreement, partnership
agreement or other organizational documents of the Company or any
Subsidiary, or (iii) violate or conflict with any law, rule, regulation,
ordinance, directive, judgment, decree or order of any judicial, regulatory
or other legal or governmental agency or body, domestic or foreign, or (iv)
violate or conflict with any provision of the Rights Agreement dated as of
January 18, 1995, between Xxxxxxx Denver, Inc. and National City Bank, as
rights agent (the "Rights Agreement"), except (in the case of clauses (i)
and (iii) above) as could not reasonably be expected to have a Material
Adverse Effect.
(l) No Consent of, with or from any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or
domestic, is required for the execution, delivery and performance of this
Agreement or consummation of the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus, including the
issuance, sale and delivery of the Shares to be issued, sold and delivered
hereunder, except the registration under the Securities Act of the Shares,
which has become effective, and such Consents as may be required under state
securities or blue sky laws in connection with the purchase and distribution
of the Shares by the Underwriters, each of which has been obtained and is in
full force and effect.
(m) Except as disclosed in the Registration Statement and the
Prospectus, there is no judicial, regulatory, arbitral or other legal or
governmental proceeding or other litigation or arbitration, domestic or
foreign, pending to which the Company or any Subsidiary is a party or of
which any property, operations or assets of the Company or any Subsidiary is
the subject which, individually or in the aggregate, if determined adversely
to the Company or any Subsidiary, could reasonably be expected to have a
Material Adverse Effect; the Company's knowledge, no such proceeding,
litigation or arbitration is threatened or contemplated; and the anticipated
cost of defense of all such proceedings, litigation and arbitrations against
or involving the Company or any Subsidiary could not reasonably be expected
to have a Material Adverse Effect.
(n) The financial statements of the Company and Syltone, including
the notes thereto, and the supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the financial position as of the dates indicated and the cash flows and
results of operations for the periods specified of the Company and its
consolidated subsidiaries; except as otherwise stated in the Registration
Statement and the Prospectus, said financial statements have been prepared
in conformity with United States generally accepted accounting principles
applied on a consistent basis throughout the periods involved; and the
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein. No other financial statements or supporting
schedules are required to be included in the Registration Statement. The
financial and statistical information included or incorporated by reference
in the Registration Statement and the Prospectus present fairly the
information included therein and have been prepared on a basis consistent
with that of the financial statements that are included or incorporated
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by reference in the Registration Statement and the Prospectus and the books
and records of the respective entities presented therein.
(o) The pro forma financial information included in the
Registration Statement and the Prospectus has been properly compiled and
prepared in accordance with the applicable requirements of the Securities
Act and the Rules and Regulations and includes all adjustments and
reconciliations necessary to present fairly in accordance with United States
generally accepted accounting principles the pro forma financial position of
the Company presented therein at the respective dates indicated and their
cash flows and the results of operations for the respective periods
specified; the assumptions used in preparing the pro forma financial
information included in the Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein; the related
adjustments made in the preparation of such pro forma financial information
give appropriate effect to those assumptions; and such pro forma financial
information reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(p) The statistical, industry-related and market-related data
included in the Registration Statement and the Prospectus are based on or
derived from sources which the Company reasonably and in good faith believes
are reliable and accurate, and such data agree with the sources from which
they are derived.
(q) The Company is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act and files reports with the Commission on the
XXXXX System. The Common Stock is registered pursuant to Section 12(b) of
the Exchange Act and the outstanding shares of Common Stock (other than the
Shares) are listed on the NYSE (as defined in Section 11(b) below) and the
Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or
de-listing the Common Stock from the NYSE, nor has the Company received any
notification that the Commission or the NYSE is contemplating terminating
such registration or listing.
(r) The Company and the Subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with United States
generally accepted accounting principles and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance with
management's general or specific authorization, and (iv) the recorded
accounting for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(s) Neither the Company nor any of its affiliates (within the
meaning of Rule 144 under the Securities Act) has taken, directly or
indirectly, any action which constitutes or is designed to cause or result
in, or which could reasonably be expected to constitute, cause or result in,
the stabilization or manipulation of the price of any security to facilitate
the sale or resale of the Shares.
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(t) Neither the Company nor any of its affiliates has, prior to the
date hereof, made any offer or sale of any securities which could be
"integrated" for purposes of the Securities Act or the Rules and Regulations
with the offer and sale of the Shares pursuant to the Registration
Statement. Except as disclosed in the Registration Statement and the
Prospectus, neither the Company nor any of its affiliates has sold or issued
any Relevant Security during the six-month period preceding the date of the
Prospectus, including but not limited to any sales pursuant to Rule 144A or
Regulation D or S under the Securities Act, other than shares of Common
Stock issued pursuant to employee benefit plans, qualified stock option
plans or the employee compensation plans or pursuant to outstanding options,
rights or warrants as described in the Registration Statement and the
Prospectus.
(u) Except as disclosed in the Registration Statement and the
Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise
in connection with, the offer and sale of the Shares contemplated hereby,
and any such rights so disclosed have either been fully complied with by the
Company or effectively waived by the holders thereof, and any such waivers
remain in full force and effect.
(v) The conditions for use of Form S-3 to register the Offering
under the Securities Act, as set forth in the General Instructions to such
Form, have been satisfied.
(w) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the Securities Act, the Exchange Act and the Rules and
Regulations, and, when read together with the other information in the
Prospectus, do not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(x) The Company is not and, at all times up to and including
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, and after giving effect to
application of the net proceeds of the Offering, will not be, subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended, and is not and will not be an entity "controlled" by an
"investment company" within the meaning of such act.
(y) There are no contracts or other documents (including, without
limitation, any voting agreement), which are required to be described in the
Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act, the Exchange Act or the Rules
and Regulations and which have not been so described or filed.
(z) No relationship, direct or indirect, exists between or among
any of the Company or any affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the
Securities Act, the Exchange Act or the Rules and Regulations to be
described in the Registration Statement or the Prospectus which is not so
described and described
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as required. There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company to or for the benefit of any of
the officers or directors of the Company or any of their respective family
members, except as disclosed in the Registration Statement and the
Prospectus. The Company has not, in violation of the Xxxxxxxx-Xxxxx Act,
directly or indirectly, including through a Subsidiary, extended or
maintained credit, arranged for the extension of credit, or renewed an
extension of credit, in the form of a personal loan to or for any director
or executive officer of the Company.
(aa) Except as disclosed in the Registration Statement and the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus or, to the
Company's knowledge, any arrangements, agreements, understandings, payments
or issuance with respect to the Company or any of its officers, directors,
shareholders, partners, employees, Subsidiaries or affiliates that may
affect the Underwriters' compensation as determined by the National
Association of Securities Dealers, Inc. (the "NASD").
(bb) The Company and each Subsidiary own or lease all such
properties as are necessary to the conduct of their respective businesses as
presently operated and as proposed to be operated as described in the
Registration and the Prospectus. The Company and the Subsidiaries have good
and marketable title in fee simple to all real property owned by them and
good and marketable title to all personal property owned by them, in each
case free and clear of all Liens except such as are described in the
Registration Statement and the Prospectus or such as do not (individually or
in the aggregate) materially affect the value of such property or interfere
with the use made or proposed to be made of such property by the Company and
the Subsidiaries; and any real property and buildings held under lease or
sublease by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material
to, and do not interfere with, the use made and proposed to be made of such
property and buildings by the Company and the Subsidiaries. Neither the
Company nor any Subsidiary has received any notice of any claim adverse to
its ownership of any real or personal property or of any claim against the
continued possession of any real property, whether owned or held under lease
or sublease by the Company or any Subsidiary.
(cc) The Company and each Subsidiary (i) own or possess adequate
right to use all patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service xxxx registrations,
copyrights, licenses, formulae, customer lists, and know-how and other
intellectual property (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures,
"Intellectual Property") necessary for the conduct of their respective
businesses as being conducted and as described in the Registration Statement
and Prospectus and (ii) have no reason to believe that the conduct of their
respective businesses does or will conflict with, and have not received any
notice of any claim of conflict with, any such right of others. To the
Company's knowledge, there is no infringement by third parties of any such
Intellectual Property; there is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by others challenging the
Company's or
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any Subsidiary's rights in or to any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any
such claim; and there is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by others that the Company or
any Subsidiary infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and the
Company is unaware of any other fact which would form a reasonable basis for
any such claim.
(dd) The Company and the Subsidiaries maintain insurance in such
amounts and covering such risks as the Company reasonably considers adequate
for the conduct of its business and the value of its properties and as is
customary for companies engaged in similar businesses in similar industries,
all of which insurance is in full force and effect, except where the failure
to maintain such insurance could not reasonably be expected to have a
Material Adverse Effect. There are no claims by the Company or any
Subsidiary under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights
clause which denial or reservation could reasonably be expected to have a
Material Adverse Effect. The Company reasonably believes that it will be
able to renew its existing insurance as and when such coverage expires or
will be able to obtain replacement insurance adequate for the conduct of the
business and the value of its properties at a cost that could not reasonably
be expected to have a Material Adverse Effect.
(ee) The Company has in effect insurance covering the Company and
its directors and officers for liabilities or losses arising in connection
with this Offering, including, without limitation, liabilities or losses
arising under the Securities Act, the Exchange Act, the Rules and
Regulations and applicable foreign securities laws, subject to customary
limitations and exceptions.
(ff) Each of the Company and the Subsidiaries has accurately
prepared and timely filed all federal, state, foreign and other tax returns
that are required to be filed by it and has paid or made provision for the
payment of all taxes, assessments, governmental or other similar charges,
including without limitation, all sales and use taxes and all taxes which
the Company or any Subsidiary is obligated to withhold from amounts owing to
employees, creditors and third parties, with respect to the periods covered
by such tax returns (whether or not such amounts are shown as due on any tax
return). No deficiency assessment with respect to a proposed adjustment of
the Company's or any Subsidiary' federal, state, local or foreign taxes is
pending or, to the Company's knowledge, threatened. The accruals and
reserves on the books and records of the Company and the Subsidiaries in
respect of tax liabilities for any taxable period not finally determined are
adequate to meet any assessments and related liabilities for any such period
and, since date of most recent audited financial statements, the Company and
the Subsidiaries have not incurred any liability for taxes other than in the
ordinary course of its business. There is no tax lien, whether imposed by
any federal, state, foreign or other taxing authority, outstanding against
the assets, properties or business of the Company or any Subsidiary.
(gg) No labor strike, work slowdown, planned absence or similar
labor disturbance by the employees of the Company or any Subsidiary exists
or, to the best of the Company's knowledge, is imminent and the Company is
not aware of any existing or imminent labor disturbances by the employees of
any of its or any Subsidiary's principal suppliers, manufacturers',
-10-
customers or contractors, which, in either case (individually or in the
aggregate), could reasonably be expected to have a Material Adverse Effect.
(hh) Except as specifically disclosed in the Registration Statement
and the Prospectus, no "prohibited transaction" (as defined in either
Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder
("ERISA") or Section 4975 of the Internal Revenue Code of 1986, as amended
from time to time (the "Code")), "accumulated funding deficiency" (as
defined in Section 302 of ERISA) or other event of the kind described in
Section 4043(b) of ERISA (other than events with respect to which the 30-day
notice requirement under Section 4043 of ERISA has been waived) has occurred
with respect to any employee benefit plan for which the Company or any
Subsidiary would have any liability which could (individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect; each
employee benefit plan for which the Company or any Subsidiary would have any
liability is in compliance in all material respects with applicable law,
including (without limitation) ERISA and the Code; the Company has not
incurred and does not expect to incur liability under Title IV of ERISA with
respect to the termination of, or withdrawal from any "pension plan"; and
each plan for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified and nothing
has occurred, whether by action or by failure to act, which could cause the
loss of such qualification.
(ii) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of any
kind of toxic or other wastes or other hazardous substances by, due to, or
caused by the Company or any Subsidiary (or, to the Company's knowledge, any
other entity for whose acts or omissions the Company is or may be liable)
upon any property now or previously owned or leased by the Company or any
Subsidiary, or upon any other property, which would be a violation of or
give rise to any liability under any applicable law, rule, regulation,
order, judgment, decree or permit relating to pollution or protection of
human health and the environment ("Environmental Law"), except for
violations and liabilities which, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect or are
specifically disclosed in the Registration Statement and Prospectus. There
has been no disposal discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of any toxic
or other wastes or other hazardous substances with respect to which the
Company or any Subsidiary has knowledge, except as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect or are specifically disclosed in the Registration Statement and
Prospectus. Neither the Company nor any Subsidiary has agreed to assume,
undertake or provide indemnification for any liability of any other person
under any Environmental Law, including any obligation for cleanup or
remedial action, except as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or are specifically
disclosed in the Registration Statement and Prospectus. There is no pending
or, to the best of the Company's knowledge, threatened administrative,
regulatory or judicial action, claim or notice of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any Subsidiary.
(jj) Neither the Company, any Subsidiary nor, to the Company's
knowledge, any of its employees or agents has at any time during the last
five years (i) made any unlawful
-11-
contribution to any candidate for foreign office, or failed to disclose
fully any contribution in violation of law, or (ii) made any payment to any
federal or state governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments required or
permitted by the laws of the United States of any jurisdiction thereof.
(kk) Neither the Company nor any Subsidiary (i) is in violation of
its certificate or articles of incorporation, by-laws, certificate of
formation, limited liability company agreement, partnership agreement or
other organizational documents (including the Rights Agreement), (ii) is in
default under, and no event has occurred which, with notice or lapse of time
or both, would constitute a default under or result in the creation or
imposition of any lien, charge or encumbrance upon any of its property or
assets pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which it is
bound or to which any of its property or assets is subject or (iii) is in
violation in any respect of any law, rule, regulation, ordinance, directive,
judgment, decree or order of any judicial, regulatory or other legal or
governmental agency or body, foreign or domestic, except (in the case
clauses (ii) and (iii) above) violations or defaults that could not
(individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect and except (in the case of clause (ii) alone) for any lien,
charge or encumbrance disclosed in the Registration Statement and the
Prospectus.
(ll) The Company has established and maintains "disclosure controls
and procedures" (as defined in Rules 13a-14(c) and 15d-14(c) of the Exchange
Act); the Company's "disclosure controls and procedures" are reasonably
designed to ensure that all information (both financial and non-financial)
required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the Rules and Regulations, and
that all such information is accumulated and communicated to the Company's
management as appropriate to allow timely decisions regarding required
disclosure and to make the certifications of the Chief Executive Officer and
Chief Financial Officer of the Company required under the Exchange Act with
respect to such reports.
(mm) The Company is in compliance with applicable provisions of the
Xxxxxxxx-Xxxxx Act that are effective and is actively taking steps to ensure
that it will be in compliance with other applicable provisions of the
Xxxxxxxx-Xxxxx Act upon the effectiveness of such provisions.
(nn) Since the date of the filing of the Company's Annual Report on
Form 10-K for the year ended December 31, 2003, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions
with regard to significant deficiencies and material weaknesses.
Any certificate signed by or on behalf of the Company and delivered
to the Lead Manager or to 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.
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2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter and each
Underwriter, severally and not jointly, agrees to purchase from the Company,
at a purchase price per share of $23.214, the number of Firm Shares set
forth opposite their respective names on Schedule I hereto together with any
additional number of Shares which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of certificates
representing, the Firm Shares shall be made at the office of Xxxxxx Xxxxxx &
Xxxxxxx LLP ("Underwriters' Counsel"), or at such other place as shall be
agreed upon by the Lead Manager and the Company, at 10:00 A.M., New York
City time, on March 29, 2004 (unless postponed in accordance with the
provisions of Section 9 hereof) or such other time not later than ten
business days after such date as shall be agreed upon by the Lead Manager
and the Company (such time and date of payment and delivery being herein
called the "Closing Date").
Payment of the purchase price for the Firm Shares shall be made by
wire transfer in same day funds to the Company upon delivery of certificates
for the Firm Shares to the Lead Manager through the facilities of The
Depository Trust Company for the respective accounts of the several
Underwriters. Certificates for the Firm Shares shall be registered in such
name or names and shall be in such denominations as the Lead Manager may
request at least two business days before the Closing Date. The Company will
permit the Lead Manager to examine and package such certificates for
delivery at least one full business day prior to the Closing Date.
(c) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company hereby grants to the Underwriters,
acting severally and not jointly, the option to purchase up to 450,000
Additional Shares at the same purchase price per share to be paid by the
Underwriters for the Firm Shares as set forth in Section 2(a) above, for the
sole purpose of covering over-allotments in the sale of Firm Shares by the
Underwriters. This option may be exercised at any time and from time to
time, in whole or in part on one or more occasions, on or before the 30th
day following the date of the Prospectus, by written notice from the Lead
Manager to the Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised and the date and
time, as reasonably determined by the Lead Manager, when the Additional
Shares are to be delivered (any such date and time being herein sometimes
referred to as the "Additional Closing Date"); provided, however, that no
Additional Closing Date shall occur earlier than the Closing Date or earlier
than the second full business day after the date on which the option shall
have been exercised nor later than the eighth full business day after the
date on which the option shall have been exercised (unless such time and
date are postponed in accordance with the provisions of Section 9 hereof).
Upon any exercise of the option as to all or any portion of the Additional
Shares, each Underwriter, acting severally and not jointly, agrees to
purchase from the Company the number of Additional Shares that bears the
same proportion to the total number of Additional Shares then being
purchased as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number in-
-13-
creased as set forth in Section 9 hereof) bears to the total number of Firm
Shares that the Underwriters have agreed to purchase hereunder, subject,
however, to such adjustments to eliminate fractional shares as the Lead
Manager in its sole discretion shall make.
(d) Payment of the purchase price for, and delivery of certificates
representing, the Additional Shares shall be made at the office of
Underwriters' Counsel, or at such other place as shall be agreed upon by the
Lead Manager and the Company, at 10:00 A.M., New York City time, on the
Additional Closing Date (unless postponed in accordance with the provisions
of Section 9 hereof), or such other time as shall be agreed upon by the Lead
Manager and the Company.
Payment of the purchase price for the Additional Shares shall be
made by wire transfer in same day funds to the Company upon delivery of
certificates for the Additional Shares to the Lead Manager through the
facilities of The Depository Trust Company for the respective accounts of
the several Underwriters. Certificates for the Additional Shares shall be
registered in such name or names and shall be in such denominations as the
Lead Manager may request at least two business days before the Additional
Closing Date. The Company will permit the Lead Manager to examine and
package such certificates for delivery at least one full business day prior
to the Additional Closing Date.
3. Offering. Upon authorization of the release of the Firm Shares
by the Lead Manager, the Underwriters propose to offer the Shares for sale
to the public upon the terms and conditions set forth in the Prospectus.
4. Covenants of the Company. The Company covenants and agrees with
the Underwriters that:
(a) The Registration Statement and any amendments thereto have been
declared effective, and if Rule 430A is used or the filing of the Prospectus
is otherwise required under Rule 424(b), the Company will file the
Prospectus (properly completed if Rule 430A has been used) pursuant to Rule
424(b) within the prescribed time period and will provide evidence
satisfactory to the Lead Manager of such timely filing.
The Company will notify the Lead Manager immediately (and, if
requested by the Lead Manager, will confirm such notice in writing) (i) when
the Registration Statement and any amendments thereto become effective, (ii)
of any request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional information,
(iii) of the Company's intention to file or prepare any supplement or
amendment to the Registration Statement or the Prospectus, (iv) of the
mailing or the delivery to the Commission for filing of any amendment of or
supplement to the Registration Statement or the Prospectus, including but
not limited to filings pursuant to Rule 462(b) under the Securities Act, (v)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto or of the initiation, or the threatening, of any proceedings
therefor, it being understood that the Company shall make every effort to
avoid the issuance of any such stop order, (vi) of the receipt of any
comments from the Commission, and (vii) of the receipt by the Company of any
notification with respect to the suspension of the
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qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for that purpose. If the Commission shall
propose or enter a stop order at any time, the Company will make every
reasonable effort to prevent the issuance of any such stop order and, if
issued, to obtain the lifting of such order as soon as possible. The Company
will not file any amendment to the Registration Statement or any amendment
of or supplement to the Prospectus (including the prospectus required to be
filed pursuant to Rule 424(b)) that differs from the prospectus on file at
the time of the effectiveness of the Registration Statement or file any
document under the Exchange Act if such document would be deemed to be
incorporated by reference into the Prospectus to which the Lead Manager
shall reasonably object in writing after being timely furnished in advance a
copy thereof. The Company will provide the Lead Manager with copies of all
such amendments, filings and other documents a sufficient time prior to any
filing or other publication thereof to permit the Lead Manager a reasonable
opportunity to review and comment thereon.
(b) The Company shall comply with the Securities Act and the
Exchange Act to permit completion of the distribution as contemplated in
this Agreement, the Registration Statement and the Prospectus. If at any
time when a prospectus relating to the Shares is required to be delivered
under the Securities Act in connection with the sales of Shares, any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would, in the judgment of the Underwriters or the Company,
include an 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 existing at the time of delivery
to the purchaser, not misleading, or if to comply with the Securities Act,
the Exchange Act or the Rules and Regulations it shall be necessary at any
time to amend or supplement the Prospectus or Registration Statement, or to
file any document incorporated by reference in the Registration Statement or
the Prospectus or in any amendment thereof or supplement thereto, the
Company will notify the Lead Manager promptly and prepare and file with the
Commission, subject to Section 4(a) hereof, an appropriate amendment or
supplement (in form and substance satisfactory to the Lead Manager) which
will correct such statement or omission or which will effect such compliance
and will use its best efforts to have any amendment to the Registration
Statement declared effective as soon as possible.
(c) The Company will promptly deliver to each Underwriter and
Underwriters' Counsel a signed copy of the Registration Statement, as
initially filed and all amendments thereto, including all consents and
exhibits filed therewith, and will maintain in the Company's files manually
signed copies of such documents for at least five years after the date of
filing. The Company will promptly deliver to each of the Underwriters such
number of copies of any Preliminary Prospectus, the Prospectus, the
Registration Statement, and all amendments of and supplements to such
documents, if any, and all documents incorporated by reference in the
Registration Statement and Prospectus or any amendment thereof or supplement
thereto, as you may reasonably request. Prior to 10:00 A.M., New York time,
on the business day next succeeding the date of this Agreement and from time
to time thereafter, the Company will furnish the Underwriters with copies of
the Prospectus in New York City in such quantities as you may reasonably
request.
-15-
(d) The Company consents to the use and delivery of the Preliminary
Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b)
of the Securities Act.
(e) The Company will use its best efforts, in cooperation with the
Lead Manager, at or prior to the time of effectiveness of the Registration
Statement, to qualify the Shares for offering and sale under the securities
laws relating to the offering or sale of the Shares of such jurisdictions,
domestic or foreign, as the Lead Manager may designate and to maintain such
qualification in effect for so long as required for the distribution
thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a
general consent to service of process.
(f) The Company will make generally available to its security
holders and to the Underwriters as soon as practicable, but in any event not
later than twelve months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act), an earnings
statement of the Company and the Subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(g) During the period of 90 days from the date of the Prospectus,
without the prior written consent of the Lead Manager the Company (i) will
not, directly or indirectly, issue, offer, sell, agree to issue, offer or
sell, solicit offers to purchase, grant any call option, warrant or other
right to purchase, purchase any put option or other right to sell, pledge,
borrow or otherwise dispose of any Relevant Security, or make any
announcement of any of the foregoing, (ii) will not establish or increase
any "put equivalent position" or liquidate or decrease any "call equivalent
position" (in each case within the meaning of Section 16 of the Exchange Act
and the rules and regulations promulgated thereunder) with respect to any
Relevant Security, and (iii) will not otherwise enter into any swap,
derivative or other transaction or arrangement that transfers to another, in
whole or in part, any economic consequence of ownership of a Relevant
Security, whether or not such transaction is to be settled by delivery of
Relevant Securities, other securities, cash or other consideration; and the
Company will obtain an undertaking in substantially the form of Annex III
hereto of each person listed on Schedule II attached hereto not to engage in
any of the aforementioned transactions on their own behalf, other than the
sale of Shares as contemplated by this Agreement and the Company's issuance
of Common Stock upon the grant and exercise of options under, or the
issuance and sale of shares pursuant to, employee stock option and incentive
plans in effect on the date hereof, each as described in the Registration
Statement and the Prospectus. The Company will not file a registration
statement under the Securities Act in connection with any transaction by the
Company or any person that is prohibited pursuant to the foregoing, except
for registration statements on Form S-8 relating to employee benefit plans
or Form S-4 relating to corporate reorganizations or other transactions
under Rule 145, nor will the Company consent to the disposition of any
shares held by shareholders subject to lock-up agreements prior to the
expiration thereof.
(h) During the period of five years from the effective date of the
Registration Statement, the Company will furnish to you copies of all
reports or other communications (financial or other) furnished to security
holders or from time to time published or publicly disseminated by the
Company, and will deliver to you (i) as soon as they are available, copies of
-16-
any reports, financial statements and proxy or information statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition
of the Company as you may from time to time reasonably request (such
financial information to be on a consolidated basis to the extent the
accounts of the Company and the Subsidiaries are consolidated in reports
furnished to its security holders generally or to the Commission). To the
extent that the Company makes such reports or other communications available
on the Commission's XXXXX filing system, the Company shall be deemed to have
furnished such reports or communications to you for purposes of this
paragraph.
(i) The Company will apply the net proceeds from the sale of the
Shares as set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to list the Shares on the
NYSE and maintain the listing of the Shares on the NYSE.
(k) The Company, during the period when the Prospectus is required
to be delivered under the Securities Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to the
Securities Act, the Exchange Act and the Rules and Regulations within the
time periods required thereby.
(l) The Company will use its best efforts to do and perform all
things required to be done or performed under this Agreement by the Company
prior to the Closing Date or the Additional Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the Firm
Shares and the Additional Shares.
(m) The Company will not take, and will cause its affiliates
(within the meaning of Rule 144 under the Securities Act) not to take,
directly or indirectly, any action which constitutes or is designed to cause
or result in, or which could reasonably be expected to constitute, cause or
result in, the stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Shares.
5. Payment of Expenses. Whether or not the transactions
contemplated by this Agreement, the Registration Statement and the
Prospectus are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of
its obligations hereunder, including the following: (i) all expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and any and all
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Securities Act and the Offering; (iii)
the cost of producing the blue sky survey, closing documents and other
instruments, agreements or documents (including any compilations thereof) in
connection with the Offering (other than fees of counsel to the
Underwriters); (iv) all expenses in connection with the qualification of the
Shares for offering and sale under state or foreign securities or blue sky
laws as provided in Section 4(e) hereof, including the fees, charges and
disbursements of counsel for the Underwriters in connection with such
qualification and in
-17-
connection with any blue sky survey; (v) the filing fees incident to
securing any required review by the NASD of the terms of the Offering; (vi)
all fees and expenses in connection with listing the Shares on the NYSE;
(vii) all travel expenses of the Company's officers and employees and any
other expense of the Company incurred in connection with attending or
hosting meetings with prospective purchasers of the Shares; and (viii) any
stock transfer taxes incurred in connection with this Agreement or the
Offering. The Company also will pay or cause to be paid: (x) the cost of
preparing stock certificates representing the Shares; (y) the cost and
charges of any transfer agent or registrar for the Shares; and (z) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section 5. It is
understood, however, that except as provided in this Section, and Sections
7, 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel and stock transfer taxes on
resale of any of the Shares by them. Notwithstanding anything to the
contrary in this Section 5, in the event that this Agreement is terminated
pursuant to Section 6 hereof, the Company will pay all out-of-pocket
expenses of the Underwriters (including but not limited to fees and
disbursements of counsel to the Underwriters) incurred in connection
herewith.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company herein contained, as of the
date hereof and as of the Closing Date (for purposes of this Section 6
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters
furnished to you or to Underwriters' Counsel pursuant to this Section 6 of
any misstatement or omission, to the performance by the Company of its
obligations hereunder, and to each of the following additional conditions:
(a) The Registration Statement shall have become effective and all
necessary regulatory or stock exchange approvals shall have been received
not later than 5:30 P.M., New York time, on the date of this Agreement, or
at such later time and date as shall have been consented to in writing by
the Lead Manager; if the Company shall have elected to rely upon Rule 430A
under the Securities Act, the Prospectus shall have been filed with the
Commission in a timely fashion in accordance with Section 4(a) hereof and a
form of the Prospectus containing information relating to the description of
the Shares and the method of distribution and similar matters shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period; and, at or prior to the Closing Date no stop order suspending
the effectiveness of the Registration Statement or any post-effective
amendment thereof shall have been issued and no proceedings therefor shall
have been initiated or threatened by the Commission.
(b) At the Closing Date, you shall have received the favorable
written opinion of Xxxxx Xxxxxxxx, General Counsel of the Company, dated the
Closing Date addressed to the Underwriters in the form attached hereto as
Annex I.
(c) At the Closing Date you shall have received the favorable
written opinion of Xxxxx Xxxx LLP, counsel for the Company, dated the
Closing Date addressed to the Underwriters in the form attached hereto as
Annex II.
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(d) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to the Lead Manager and to Underwriters'
Counsel, and the Underwriters shall have received from Underwriters' Counsel
a favorable written opinion, dated as of the Closing Date, with respect to
the issuance and sale of the Shares, the Registration Statement and the
Prospectus and such other related matters as the Lead Manager may require,
and the Company shall have furnished to Underwriters' Counsel such documents
as they may reasonably request for the purpose of enabling them to pass upon
such matters.
(e) At the Closing Date you shall have received a certificate of
the Chief Executive Officer and Chief Financial Officer of the Company,
dated the Closing Date, to the effect that (i) the condition set forth in
subsection (a) of this Section 6 has been satisfied, (ii) as of the date
hereof and as of the Closing Date, the representations and warranties of the
Company set forth in Section 1 hereof are accurate, (iii) as of the Closing
Date all agreements, conditions and obligations of the Company to be
performed or complied with hereunder on or prior thereto have been duly
performed or complied with, (iv) the Company and the Subsidiaries have not
sustained any material loss or interference with their respective businesses
or properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any legal
or governmental proceeding, (v) no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereof has
been issued and no proceedings therefor have been initiated or threatened by
the Commission, (vi) there are no pro forma or as adjusted financial
statements that are required to be included in the Registration Statement
and the Prospectus pursuant to the Rules and Regulations that have not been
included as required and (vii) subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus
there has not been any material adverse change or any development involving
a prospective material adverse change, whether or not arising from
transactions in the ordinary course of business, in or affecting (x) the
business, condition (financial or otherwise), results of operations,
stockholders' equity, properties or prospects of the Company and the
Subsidiaries, individually or taken as a whole; (y) the long-term debt or
capital stock of the Company or any of its Subsidiaries; or (z) the Offering
or consummation of any of the other transactions contemplated by this
Agreement, the Registration Statement and the Prospectus.
(f) At the time this Agreement is executed and at the Closing Date,
you shall have received a comfort letter, from KPMG LLP, independent public
accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in
form and substance satisfactory to the Underwriters and Underwriters'
Counsel.
(g) At the time this Agreement is executed and at the Closing Date,
you shall have received a comfort letter from KPMG Audit Plc, independent
public accountant for Syltone, dated, respectively as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in
form and substance satisfactory to the Underwriters and Underwriters'
Counsel.
(h) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Registration
Statement (exclusive of any
-19-
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been any change in the capital stock or long-term debt
of the Company or any Subsidiary or any change or development involving a
change, whether or not arising from transactions in the ordinary course of
business, in the business, condition (financial or otherwise), results of
operations, stockholders' equity, properties or prospects of the Company and
the Subsidiaries, individually or taken as a whole, including but not
limited to the occurrence of any fire, flood, storm, explosion, accident or
other calamity at any of the properties owned or leased by the Company or
any of its Subsidiaries, the effect of which, in any such case described
above, is, in the judgment of the Lead Manager, so material and adverse as
to make it impracticable or inadvisable to proceed with the Offering on the
terms and in the manner contemplated in the Prospectus (exclusive of any
supplement).
(i) No downgrading shall have occurred in the Company's corporate
credit rating or the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act) and no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities.
(j) The Lead Manager shall have received a duly executed lock-up
agreement from each person listed on Schedule II hereto in each case
substantially in the form attached hereto as Annex II.
(k) At the Closing Date, the Shares shall have been approved for
listing on the NYSE.
(l) At the Closing Date, if applicable, the NASD shall have
confirmed that it has not raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
(m) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that would,
as of the Closing Date, prevent the issuance or sale of the Shares; and no
injunction or order of any federal, state or foreign court shall have been
issued that would, as of the Closing Date, prevent the issuance or sale of
the Shares.
(n) The Company shall have furnished the Underwriters and
Underwriters' Counsel with such other certificates, opinions or other
documents as they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be satisfactory
in form and substance to the Lead Manager and to Underwriters' Counsel, all
obligations of the Underwriters hereunder may be cancelled by the Lead
Manager at, or at any time prior to, the Closing Date and the obligations of
the Underwriters to purchase the Additional
-20-
Shares may be cancelled by the Lead Manager at, or at any time prior to, the
Additional Closing Date. Notice of such cancellation shall be given to the
Company in writing, or by telephone. Any such telephone notice shall be
confirmed promptly thereafter in writing.
7. Indemnification.
(a) The Company shall indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to reasonable attorneys' fees and any
and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in (A) the Registration
Statement, as originally filed or any amendment thereof, or any related
Preliminary Prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, or (B) in any materials or information provided to
investors by, or with the approval of, the Company in connection with the
marketing of the offering of the Shares, including any road show or investor
presentations made to investors by the Company (whether in person or
electronically) ("Marketing Materials"), or (ii) the omission or alleged
omission to state in the Registration Statement, as originally filed or any
amendment thereof, or any related Preliminary Prospectus or the Prospectus,
or in any supplement thereto or amendment thereof, or in any Marketing
Materials, a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the
Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, as
originally filed or any amendment thereof, or any related Preliminary
Prospectus or the Prospectus, or in any supplement thereto or amendment
thereof, in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the Lead
Manager expressly for use therein. The parties agree that such information
provided by or on behalf of any Underwriter through the Lead Manager
consists solely of the material referred to in the last sentence of Section
1(b) hereof. This indemnity agreement will be in addition to any liability
which the Company may otherwise have, including but not limited to other
liability under this Agreement. The foregoing indemnity agreement with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter who failed to deliver a Prospectus (as then amended or
supplemented, provided by the Company to the several Underwriters in the
requisite quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims,
damages and liabilities and judgments caused by any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, if such material misstatement or omission
or alleged material misstatement or omission was cured, as determined by a
court of competent jurisdiction in a decision not subject
-21-
to further appeal, in such Prospectus and such Prospectus was required by
law to be delivered at or prior to the written confirmation of sale to such
person.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, each of the directors of the Company, each of
the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any
and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
as originally filed or any amendment thereof, or any related Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Lead Manager specifically for
use therein; provided, however, that in no case shall any Underwriter be
liable or responsible for any amount in excess of the underwriting discount
applicable to the Shares to be purchased by such Underwriter hereunder. The
parties agree that such information provided by or on behalf of any
Underwriter through the Lead Manager consists solely of the material
referred to in the last sentence of Section 1(b) hereof. This indemnity will
be in addition to any liability which any Underwriter may otherwise have,
including but not limited to other liability under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of any claims or the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the claim or the
commencement thereof (but the failure so to notify an indemnifying party
shall not relieve the indemnifying party from any liability which it may
have under this Section 7 to the extent that it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
that such indemnifying party may have otherwise than on account of the
indemnity agreement hereunder). In case any such claim or action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate, at its own expense in the defense of such action, and to the
extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof with counsel satisfactory to such indemnified
party; provided however, that counsel to the indemnifying party shall not
(except with the written consent of the indemnified party) also be counsel
to the indemnified party. Notwithstanding the foregoing, the indemnified
party or parties shall have the right
-22-
to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
or parties unless (i) the employment of such counsel shall have been
authorized in writing by one of the indemnifying parties in connection with
the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, (iii) the
indemnifying party does not diligently defend the action after assumption of
the defense, or (iv) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have
the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be
borne by the indemnifying parties. No indemnifying party shall, without the
prior written consent of the indemnified parties, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any
pending or threatened claim, investigation, action or proceeding in respect
of which indemnity or contribution may be or could have been sought by an
indemnified party under this Section 7 or Section 8 hereof (whether or not
the indemnified party is an actual or potential party thereto), unless (x)
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
claim, investigation, action or proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or any failure to act,
by or on behalf of the indemnified party, and (y) the indemnifying party
confirms in writing its indemnification obligations hereunder with respect
to such settlement, compromise or judgment.
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof
is for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company
and the Underwriters shall contribute to the aggregate losses, claims,
damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claims asserted, but after deducting
in the case of losses, claims, damages, liabilities and expenses suffered by
the Company, any contribution received by the Company from persons, other
than the Underwriters, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, officers of the Company
who signed the Registration Statement and directors of the Company) as
incurred to which the Company and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the Offering or,
if such allocation is not permitted by applicable law, in such proportions
as are appropriate to reflect not only the relative benefits referred to
above but also the relative fault of the Company and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Underwriters shall be deemed to be in the same proportion as (x) the
total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company bears to
(y) the underwriting discount or commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault of each of the Company and
-23-
of the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party
and referred to above in this Section 8 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any judicial, regulatory or other legal or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this Section
8, (i) no Underwriter shall be required to contribute any amount in excess
of the amount by which the discounts and commissions applicable to the
Shares underwritten by it and distributed to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i)
and (ii) of the immediately preceding sentence. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each
party or parties from whom contribution may be sought, but the omission to
so notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any obligation it or they may have
under this Section 8 or otherwise. The obligations of the Underwriters to
contribute pursuant to this Section 8 are several in proportion to the
respective number of Shares to be purchased by each of the Underwriters
hereunder and not joint.
9. Underwriter Default.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and
if the Firm Shares or Additional Shares with respect to which such default
relates (the "Default Shares") do not (after giving effect to arrangements,
if any, made by the Lead Manager pursuant to subsection (b) below) exceed in
the aggregate 10% of the number of Firm Shares or Additional Shares, each
non-defaulting Underwriter, acting severally and not jointly, agrees to
purchase from the Company that number of Default Shares that bears the same
proportion of the total number of Default Shares then being purchased as the
number of Firm Shares set forth opposite the name of such
-24-
Underwriter in Schedule I hereto bears to the aggregate number of Firm
Shares set forth opposite the names of the non-defaulting Underwriters,
subject, however, to such adjustments to eliminate fractional shares as the
Lead Manager in its sole discretion shall make.
(b) In the event that the aggregate number of Default Shares
exceeds 10% of the number of Firm Shares or Additional Shares, as the case
may be, the Lead Manager may in its discretion arrange for itself or for
another party or parties (including any non-defaulting Underwriter or
Underwriters who so agree) to purchase the Default Shares on the terms
contained herein. In the event that within five calendar days after such a
default the Lead Manager does not arrange for the purchase of the Default
Shares as provided in this Section 9, this Agreement or, in the case of a
default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and of the Company to sell the Additional Shares
shall thereupon terminate, without liability on the part of the Company with
respect thereto (except in each case as provided in Sections 5, 7, 8, 10 and
11(d)) or the Underwriters, but nothing in this Agreement shall relieve a
defaulting Underwriter or Underwriters of its or their liability, if any, to
the other Underwriters and the Company for damages occasioned by its or
their default hereunder.
(c) In the event that any Default Shares are to be purchased by the
non-defaulting Underwriters, or are to be purchased by another party or
parties as aforesaid, the Lead Manager or the Company shall have the right
to postpone the Closing Date or Additional Closing Date, as the case may be
for a period, not exceeding five business days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus or in any other documents and arrangements, and the Company
agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of Underwriters' Counsel,
may thereby be made necessary or advisable. The term "Underwriter" as used
in this Agreement shall include any party substituted under this Section 9
with like effect as if it had originally been a party to this Agreement with
respect to such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All representations
and warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement or in certificates of officers of the Company or
any Subsidiary submitted pursuant hereto, including the agreements contained
in Section 5, the indemnity agreements contained in Section 7 and the
contribution agreements contained in Section 8, shall remain operative and
in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any controlling person thereof or by or on
behalf of the Company, any of its officers and directors or any controlling
person thereof, and shall survive delivery of and payment for the Shares to
and by the Underwriters. The representations contained in Section 1 and the
agreements contained in Sections 5, 7, 8, 10 and 11 hereof shall survive any
termination of this Agreement, including termination pursuant to Section 9
or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution of
this Agreement. Notwithstanding any termination of this Agreement, the
provisions of this Section 11 and
-25-
of Sections 1, 5, 7, 8 and 12 through 17, inclusive, shall remain in full
force and effect at all times after the execution hereof.
(b) The Lead Manager shall have the right to terminate this
Agreement at any time prior to the Closing Date or to terminate the
obligations of the Underwriters to purchase the Additional Shares at any
time prior to the Additional Closing Date, as the case may be, if (i) any
domestic or international event or act or occurrence has materially
disrupted, or in the opinion of the Lead Manager will in the immediate
future materially disrupt, the market for the Company's securities or
securities in general; or (ii) trading on The New York Stock Exchange (the
"NYSE") or The NASDAQ National Market (the "NASDAQ") shall have been
suspended or been made subject to material limitations, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, on the NYSE or the NASDAQ or
by order of the Commission or any other governmental authority having
jurisdiction; or (iii) a banking moratorium has been declared by any state
or federal authority or if any material disruption in commercial banking or
securities settlement or clearance services shall have occurred; or (iv) (A)
there shall have occurred any outbreak or escalation of hostilities or acts
of terrorism involving the United States or there is a declaration of a
national emergency or war by the United States or (B) there shall have been
any other calamity or crisis or any change in political, financial or
economic conditions if the effect of any such event in (A) or (B), in the
judgment of the Lead Manager, makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Firm Shares or the
Additional Shares, as the case may be, on the terms and in the manner
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be
in writing.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than pursuant to (i) notification by the Lead
Manager as provided in Section 11(c) hereof or (ii) Section 9(b) hereof), or
if the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
the Company will, subject to demand by the Lead Manager, reimburse the
Underwriters for all out-of-pocket expenses (including the fees and expenses
of their counsel), incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or
faxed and confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co.
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Parish, Senior Managing Director, Equity Capital Markets (fax:
000-000-0000), with a copy to Underwriters' Counsel at Xxxxxx Xxxxxx &
Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxxx (fax: 000-000-0000);
(b) if sent to the Company, shall be mailed, delivered, or faxed
and confirmed in writing to the Company at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxxx,
Xxxxxxxx 00000, Attention:
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Xxxxx Xxxxxxxx, Vice President and General Counsel (fax: 000-000-0000) with
a copy to the Company's Counsel at Xxxxx Xxxx LLP, 000 Xxxxx Xxxxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. XxXxxxxx (fax: 000-000-0000);
(c) provided, however, that any notice to an Underwriter pursuant
to Section 7 shall be delivered or sent by mail or facsimile transmission to
such Underwriter at its address set forth in its acceptance facsimile to the
Lead Manager, which address will be supplied to any other party hereto by
the Lead Manager upon request. Any such notices and other communications
shall take effect at the time of receipt thereof.
13. Parties. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Underwriters and the Company and the
controlling persons, directors, officers, employees and agents referred to
in Sections 7 and 8 hereof, and their respective successors and assigns, and
no other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of
the parties hereto and said controlling persons and their respective
successors, officers, directors, heirs and legal representatives, and it is
not for the benefit of any other person, firm or corporation. The term
"successors and assigns" shall not include a purchaser, in its capacity as
such, of Shares from any of the Underwriters.
14. Governing Law and Jurisdiction; Waiver of Jury Trial. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. The Company irrevocably (a) submits to the
jurisdiction of any court of the State of New York or the United State
District Court for the Southern District of the State of New York for the
purpose of any suit, action, or other proceeding arising out of this
Agreement, or any of the agreements or transactions contemplated by this
Agreement, the Registration Statement and the Prospectus (each, a
"Proceeding"), (b) agrees that all claims in respect of any Proceeding may
be heard and determined in any such court, (c) waives, to the fullest extent
permitted by law, any immunity from jurisdiction of any such court or from
any legal process therein, (d) agrees not to commence any Proceeding other
than in such courts, and (e) waives, to the fullest extent permitted by law,
any claim that such Proceeding is brought in an inconvenient forum. THE
COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON
BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE
PROSPECTUS.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery
of a signed counterpart of this Agreement by facsimile transmission shall
constitute valid and sufficient delivery thereof.
-27-
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
17. Time Is of the Essence. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
[signature page follows]
-28-
If the foregoing correctly sets forth your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
XXXXXXX DENVER, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President, Administration,
General Counsel and Secretary
-29-
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxxx Parish
-------------------------------
Name: Xxxxxxx Parish
Title: Senior Managing Director
On behalf of itself and the other
Underwriters named in Schedule I hereto.
-30-
SCHEDULE I
Number of Additional
Total Number of Firm Shares to be Purchased if
Underwriter Shares to be Purchased Option is Fully Exercised
----------- ---------------------- -------------------------
Bear, Xxxxxxx & Co. Inc. 1,500,000 225,000
Xxxxxx X. Xxxxx & Co. Incorporated 675,000 101,250
McDonald Investments, Inc. 675,000 101,250
Xxxxxx Xxxxxx & Co., Inc. 150,000 22,500
---------------------- -------------------------
Total......... 3,000,000 450,000
====================== =========================
SCHEDULE II
Names of shareholders subject to the lock-up provision
Xxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxx
J. Xxxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. XxXxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
ANNEX I
Form of Opinion of General Counsel
----------------------------------
1. Each of the Company and its Subsidiaries has been duly organized
and validly exists as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full power and authority to own its
properties and conduct its business as described in the Registration
Statement and the Prospectus. Each of the Company and its Subsidiaries is
duly qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary except as where the failure to be so qualified and
in good standing would not have a Material Adverse Effect.
2. All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and, to such counsel's knowledge, are not in violation of or
subject to any preemptive or similar rights that entitle or will entitle any
person to acquire any Shares from the Company upon issuance or sale thereof.
3. To such counsel's knowledge and other than as set forth in the
Prospectus, there are no judicial, regulatory or other legal or governmental
proceedings pending to which the Company or any of its Subsidiaries is a
party or of which any property of the Company or any of its Subsidiaries is
the subject which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material Adverse
Effect and, to such counsel's knowledge, no such proceedings are threatened
or contemplated.
4. The execution, delivery, and performance of the Underwriting
Agreement and consummation of the transactions contemplated by the
Underwriting Agreement, the Registration Statement and the Prospectus do not
and will not (A) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its Subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or any other agreement,
instrument, franchise, license or permit known to such counsel to which the
Company or any of its Subsidiaries is a party or by which any of the Company
or any of its Subsidiaries or their respective properties or assets may be
bound or (B) violate or conflict with any provision of the certificate of
incorporation or by-laws of the Company or any of its Subsidiaries, or, to
the best knowledge of such counsel, any judgment, decree, order, statute,
rule or regulation of any court or any judicial, regulatory or other legal
or governmental agency or body.
5. Neither the Company nor any of its Subsidiaries is in violation
of its respective charter or by-laws and, to the best of such counsel's
knowledge after due inquiry, neither the Company nor any of its Subsidiaries
is in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument that is material to the Company and its
Subsidiaries, taken as a whole, to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
or their respective property is bound.
6. To the best knowledge of such counsel, no contract or agreement
is required to be filed as an exhibit to the Registration Statement that is
not so filed.
7. The documents filed under the Exchange Act and incorporated by
reference in the Registration Statement and Prospectus or any amendment
thereof or supplement thereto (other than the financial statements and notes
and schedules thereto and other financial, statistical or accounting data
included or incorporated by reference therein, as to which no opinion need
be rendered) comply as to form in all material respects with the
requirements of the Securities Act or Exchange Act, as applicable, and the
Rules and Regulations.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of
the Company, representatives of the independent public accountants for the
Company and the Underwriters at which the contents of the Prospectus and
related matters were discussed and no facts have come to the attention of
such counsel which would lead such counsel to believe that either the
Registration Statement, at the time it became effective (including the
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b), if applicable, but excluding the
financial statements and supporting schedules and other financial data
included in the Registration Statement and Prospectus or omitted therefrom),
or any amendment thereof made prior to the Closing Date, as of the date of
such amendment, contained or incorporated by reference any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus (including the documents incorporated by reference
therein, but excluding the financial statements and supporting schedules and
other financial data included in the Registration Statement and Prospectus
or omitted therefrom), as of its date (or any amendment thereof or
supplement thereto made prior to the Closing Date as of the date of such
amendment or supplement) and as of the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
belief or opinion with respect to the financial statements and schedules and
other financial data included or incorporated by reference therein).
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ANNEX II
Form of Opinion of Company Counsel
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1. The Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus. The Shares to be delivered on the
Closing Date and the Additional Closing Date, if any, have been duly and
validly authorized and, when delivered in accordance with the Underwriting
Agreement, will be duly and validly issued, fully paid and non-assessable
and, to such counsel's knowledge, will not have been issued in violation of
or subject to preemptive or similar rights that entitle or will entitle any
person to acquire any Shares from the Company upon issuance or sale thereof.
The Common Stock, the Firm Shares and the Additional Shares conform to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
2. The Shares are duly authorized for listing on the New York Stock
Exchange.
3. The Underwriting Agreement has been duly and validly authorized,
executed and delivered by the Company.
4. The Registration Statement and the Prospectus and any amendments
thereof or supplements thereto, (other than the documents incorporated by
reference therein, as to which we render no opinion and other than the
financial statements and notes and schedules thereto and other financial,
statistical or accounting data included or incorporated by reference
therein, as to which we render no opinion), comply as to form in all
material respects with the requirements of the Securities Act, the Exchange
Act and the Rules and Regulations.
5. No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
judicial, regulatory or other legal or governmental agency or body is
required for the execution and delivery of the Underwriting Agreement or
will be required for the performance of the Underwriting Agreement or
consummation of the transactions contemplated by the Underwriting Agreement,
the Registration Statement and the Prospectus, except for (1) such as may be
required under state securities or blue sky laws in connection with the
purchase and distribution of the Shares by the Underwriters (as to which
such counsel need express no opinion), (2) such as have been made or
obtained under the Securities Act and (3) such as are required by the NASD.
6. The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Registration Statement and the Prospectus, will not be, an
"investment company" as such term is defined in the Investment Company Act
of 1940, as amended.
7. The statements under the captions "Description of Our Capital
Stock" and "Underwriting" in the Prospectus and Item 15 of Part II of the
Registration Statement, insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein, is a
materially accurate summary of the information called for with respect to
such legal
matters, documents and proceedings (other than the financial statements and
notes and schedules thereto and other financial, statistical or accounting
data included or incorporated by reference therein, as to which no opinion
need be rendered).
8. The Registration Statement is effective under the Securities
Act, and, to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any post-effective
amendment thereof has been issued and no proceedings therefor have been
initiated or threatened by the Commission and all filings required by Rule
424(b) and Rule 430A under the Securities Act have been made.
9. The Company has power and authority to execute and deliver this
Agreement and the Shares and to perform its obligations hereunder, and all
corporate action required to be taken for the due and proper authorization,
execution and delivery of this Agreement and the Shares and consummation of
the transactions contemplated by Underwriting Agreement, the Registration
Statement and the Prospectus and as described in the Registration Statement
and the Prospectus have been duly and validly authorized.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of
the Company, representatives of the independent public accountants for the
Company and the Underwriters at which the contents of the Prospectus and
related matters were discussed and no facts have come to the attention of
such counsel which would lead such counsel to believe that either the
Registration Statement, at the time it became effective (including the
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b), if applicable, but excluding the
financial statements and supporting schedules and other financial data
included in the Registration Statement and Prospectus or omitted therefrom),
or any amendment thereof made prior to the Closing Date, as of the date of
such amendment, contained or incorporated by reference any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus (including the documents incorporated by reference
therein, but excluding the financial statements and supporting schedules and
other financial data included in the Registration Statement and Prospectus
or omitted therefrom), as of its date (or any amendment thereof or
supplement thereto made prior to the Closing Date as of the date of such
amendment or supplement) and as of the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
belief or opinion with respect to the financial statements and schedules and
other financial data included or incorporated by reference therein).
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ANNEX III
Form of Lock-Up Agreement
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Bear, Xxxxxxx & Co. Inc.
As representative of the several
Underwriters referred to below
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Capital Markets
Xxxxxxx Denver, Inc. Lock-Up Agreement
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Ladies and Gentlemen:
This letter agreement (this "Agreement") relates to the proposed
public offering (the "Offering") by Xxxxxxx Denver, Inc., a Delaware
corporation (the "Company"), of its common stock, par value $.01 per share
(the "Stock").
In order to induce you and the other underwriters for which you act
as representative (the "Underwriters") to underwrite the Offering, and
except as otherwise provided below, the undersigned hereby agrees that,
without the prior written consent of Bear, Xxxxxxx & Co. Inc. ("Bear
Xxxxxxx"), during the period from the date hereof until ninety (90) days
from the date of the final prospectus for the Offering (the "Lock-Up Period"),
the undersigned (a) will not, directly or indirectly, offer, sell, agree to
offer or sell, solicit offers to purchase, grant any call option or purchase
any put option with respect to, pledge, borrow or otherwise dispose of any
Relevant Security (as defined below), and (b) will not establish or increase
any "put equivalent position" or liquidate or decrease any "call equivalent
position" with respect to any Relevant Security (in each case within the
meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder), or otherwise enter
into any swap, derivative or other transaction or arrangement that transfers
to another, in whole or in part, any economic consequence of ownership of a
Relevant Security, whether or not such transaction is to be settled by
delivery of Relevant Securities, other securities, cash or other
consideration. As used herein "Relevant Security" means the Stock, any other
equity security of the Company or any of its subsidiaries and any security
convertible into, or exercisable or exchangeable for, any Stock or other
such equity security.
The undersigned hereby authorizes the Company during the Lock-Up
Period to cause any transfer agent for the Relevant Securities to decline to
transfer, and to note stop transfer restrictions on the stock register and
other records relating to, Relevant Securities for which the undersigned is
the record holder and, in the case of Relevant Securities for which the
undersigned is the beneficial but not the record holder, agrees during the
Lock-Up Period to cause the record holder to cause the relevant transfer
agent to decline to transfer, and to note stop transfer restrictions on the
stock register and other records relating to, such Relevant Securities,
subject to
the provisions set forth below. The undersigned hereby further agrees that,
without the prior written consent of Bear Xxxxxxx, during the Lock-up Period
the undersigned (x) will not file or participate in the filing with the
Securities and Exchange Commission of any registration statement, or
circulate or participate in the circulation of any preliminary or final
prospectus or other disclosure document with respect to any proposed
offering or sale of a Relevant Security and (y) will not exercise any rights
the undersigned may have to require registration with the Securities and
Exchange Commission of any proposed offering or sale of a Relevant Security.
Notwithstanding the foregoing, the undersigned may:
(a) (i) transfer Relevant Securities by bona fide gift
(including a contribution to a trust or family partnership), will
or intestate succession and (ii) if the undersigned is a
partnership, limited liability company or corporation, the
undersigned may make a general distribution of Relevant Securities
to its partners, members or shareholders, provided as to both (i)
and (ii) above, each resulting transferee of Relevant Securities
executes and delivers to you an agreement satisfactory to you
certifying that such transferee is bound by the terms of this
Agreement and has been in compliance with the terms hereof since
the date first above written as if it had been an original party
hereto; or
(b) exercise any options to purchase Stock of the Company,
provided that, if such options are exercised for Stock, such Stock
issued upon exercise shall remain subject to this Agreement;
(c) exercise options to purchase up to ______ shares of Stock
which are expiring on May 5, 2004 and sell such Stock issued upon
such exercise without restriction; or
(d) surrender any shares of Stock to the Company in
payment of the exercise price of any options to purchase Stock,
and/or have any shares of Stock issuable upon such exercise
withheld in respect of tax obligations.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the Underwriting Agreement relating
to the Offering does not become effective by May 31, 2004, or if the
Underwriting Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and
delivery of the Stock, the undersigned will be released from the obligations
under this Agreement and this Agreement shall be void and without effect.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Agreement and that this
Agreement constitutes the legal, valid and binding obligation of the
undersigned, enforceable in accordance with its terms. Upon request, the
undersigned will execute any additional documents necessary in connection
with enforcement hereof. Any obligations of the undersigned shall be binding
upon the successors and assigns of the undersigned from the date first above
written.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. Delivery of a signed copy of this
letter by facsimile transmission shall be effective as delivery of the
original hereof.
-2-
Very truly yours,
March , 2004 By:
-----------------------------------
Print Name:
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-3-
