EXHIBIT 1.1
2,700,000
STERICYCLE, INC.
COMMON STOCK
FORM OF
UNDERWRITING AGREEMENT
October __, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
UBS WARBURG LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
BEAR, XXXXXXX & CO. INC. and
XXXXXXX XXXXX & COMPANY, LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1) Introductory. Stericycle, Inc., a Delaware corporation ("COMPANY") proposes
to issue and sell 1,000,000 shares of its common stock, par value $.01 per
share, ("SECURITIES") and the stockholders listed in Schedule A hereto
("SELLING STOCKHOLDERS") propose severally to sell an aggregate of
1,700,000 outstanding shares of the Securities (such 2,700,000 shares of
Securities being hereinafter referred to as the "FIRM SECURITIES"). The
Selling Stockholders also propose to sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 405,000
additional outstanding shares of the Company's Securities, as set forth
below (such 405,000 additional shares being hereinafter referred to as the
"OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities are
herein collectively called the "OFFERED SECURITIES". The Company and the
Selling Stockholders hereby agree with the several Underwriters named in
Schedule B hereto ("UNDERWRITERS") as follows:
2) Representations and Warranties of the Company and the Selling Stockholders.
a) The Company represents and warrants to, and agrees with, the several
Underwriters that:
i) A registration statement (No. 333-68622) relating to the Offered
Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either
(A) has been declared effective under the Securities Act of 1933
("ACT") and is not proposed to be amended or (B) is proposed to
be amended by amendment or post-effective amendment. If such
registration statement (the "INITIAL REGISTRATION STATEMENT") has
been declared effective, either (A) an additional registration
statement (the "ADDITIONAL
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REGISTRATION STATEMENT") relating to the Offered Securities may
have been filed with the Commission pursuant to Rule 462(b)
("RULE 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant
to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional
registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such
additional registration statement. If the Company does not
propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company
does not propose to amend it, and if any post-effective amendment
to either such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement,
the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c) ("RULE
462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this
Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement
means (A) if the Company has advised the Representatives that it
does not propose to amend such registration statement, the date
and time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by
such amendment or post-effective amendment, as the case may be,
is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution
and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the
date and time as of which such registration statement is filed
and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE"
with respect to the initial registration statement or the
additional registration statement (if any) means the date of the
Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all material
incorporated by reference therein, including all information
contained in the additional registration statement (if any) and
deemed to be a part of the initial registration statement as of
the Effective Time of the additional registration statement
pursuant to the General Instructions of the Form on which it is
filed and including all information (if any) deemed to be a part
of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION STATEMENT".
The additional registration statement, as amended at its
Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the
"ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration are hereinafter
referred to collectively as the "REGISTRATION STATEMENTS" and
individually as a "REGISTRATION STATEMENT". The form of
prospectus relating to the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is
hereinafter referred to as the "PROSPECTUS". No document has been
or will be prepared or distributed in reliance on Rule 434 under
the Act.
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ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of
the Additional Registration Statement (if any), each Registration
Statement conformed or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior
to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing
of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration
Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the execution
and delivery of this Agreement: on the Effective Date of the
Initial Registration Statement, the Initial Registration
Statement and the Prospectus will conform in all respects to the
requirements of the Act and the Rules and Regulations, neither of
such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and no Additional Registration Statement has been or
will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the
Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section
7(c) hereof.
iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to
be so qualified as a foreign corporation in good standing would
not have, individually or in the aggregate, a material adverse
effect on the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
iv) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each subsidiary of
the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification, except whee the failure to be so
qualified as a foreign corporation in good standing would have a
Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by
the Company, directly or through subsidiaries, is owned
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free from liens, encumbrances and defects, except as such capital
stock has been pledged as security under the Company's Amended
and Restated Credit Agreement, dated as of October 5, 2001, as
disclosed in the Prospectus.
v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and
validly issued, fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Securities.
vi) Except as disclosed in 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 this offering.
vii) Except for the Registration Rights Agreement, dated as of
November 12, 1999, between the Company and certain investors
affiliated with Xxxx Capital, Inc. and Madison Dearborn Partners
LLC and the Amended and Restated Registration Agreement, dated
October 19, 1994, between the Company, Xxxxxx Healthcare
Corporation, Marquette Venture Partners, L.P., State Farm Mutual
Automobile Insurance Company and Xxxx X. Xxxxxxx, and all
amendments thereto, there are no executory contracts, agreements
or understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in
any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
viii) The Securities are listed on The Nasdaq Stock Market's National
Market.
ix) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with
the sale of the Offered Securities, except such as have been
obtained and made under the Act and such as may be required under
state securities laws.
x) The execution, delivery and performance of this Agreement, and
the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the
Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary.
xi) This Agreement has been duly authorized, executed and delivered
by the Company.
xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with
the use made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal
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property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made
thereof by them.
xiii) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated
by them, except where the failure to possess any such
certificates, authorities or permits would not have a Material
Adverse Effect and have not received any notice of proceedings
relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is
imminent that might have a Material Adverse Effect.
xv) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business
now operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
xvi) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal
or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable
for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have Material
Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
xvii) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect
the ability of the Company to perform its obligations under this
Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge,
contemplated.
xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of
the dates shown and their results of operations and cash flows
for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis;
and the assumptions used in preparing the pro forma financial
information included in each 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 pro forma adjustments give
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appropriate effect to those assumptions, and the pro forma
columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
xix) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a
whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its
capital stock.
xx) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940.
b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
i) Such Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the
Offered Securities to be delivered by such Selling Stockholder on
such Closing Date hereunder; and upon the delivery of and payment
for the Offered Securities on each Closing Date hereunder the
several Underwriters will acquire valid and unencumbered title to
the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date.
ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the
requirements of the Act and the Rules and Regulations and did not
include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading, (B) on the Effective
Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all
respects to the requirements of the Act and the Rules and
Regulations did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit,
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C)
on the date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms,
and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date
of the Additional Registration Statement in which the Prospectus
is included, each Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits,
or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and
the Rules and Regulations, neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to
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make the statements therein not misleading. The two preceding
sentences apply only to the extent that any statements in or
omissions from a Registration Statement or the Prospectus are
based on written information furnished to the Company by such
Selling Stockholder specifically for use therein, it being
understood and agreed that the only such information furnished by
any Selling Stockholder appears under the caption "Management
Ownership and Selling Stockholders - Selling Stockholders".
iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and
any person that would give rise to a valid claim against such
Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with
this offering.
3) Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from
the Company and each Selling Stockholder, at a purchase price of $ per
share, that number of Firm Securities (rounded up or down, as determined by
Credit Suisse First Boston Corporation ("CSFBC") in its discretion, in
order to avoid fractions) obtained by multiplying 1,000,000 Firm Securities
in the case of the Company and the number of Firm Securities set forth
opposite the name of such Selling Stockholder in Schedule A hereto, in the
case of a Selling Stockholder, in each case by a fraction the numerator of
which is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is the total
number of Firm Securities.
The Company and the Selling Stockholders will deliver the Firm
Securities to the Representatives for the accounts of the Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of Stericycle, Inc. in the case of 1,000,000 shares of Firm Securities
and drawn to the order of the respective Selling Stockholder in amounts relating
to the number of Firm Securities set forth opposite such Selling Stockholder's
name in Schedule A hereto at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP ("XXXXXXX XXXX") located at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
10:00 A.M., New York time, on _________, 2001, or at such other time not later
than seven full business days thereafter as CSFBC and the Company determine,
such time being herein referred to as the "FIRST CLOSING DATE". For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, the First Closing Date
(if later than the otherwise applicable settlement date) shall be the settlement
date for payment of funds and delivery of securities for all the Offered
Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the office of Skadden, Arps at least 24 hours prior to
the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholders from time to time not more than 30 days subsequent to
the date of the Prospectus, the Underwriters may purchase all or less than all
of the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholders agree, severally and not jointly, to
sell to the Underwriters the respective numbers of Optional Securities obtained
by multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Stockholders in Schedule A hereto under the caption
"Number of Optional Securities to be Sold" and the denominator of which is the
total number of Optional Securities (subject to adjustment by CSFBC to eliminate
fractions). Such Optional Securities shall be purchased from each Selling
Stockholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment
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by CSFBC to eliminate fractions) and may be purchased by the Underwriters only
for the purpose of covering over-allotments made in connection with the sale of
the Firm Securities. No Optional Securities shall be sold or delivered unless
the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by CSFBC to the
Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Selling Stockholders will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of each Selling Stockholder in amounts relating to the
number of Optional Securities being sold by each such Selling Stockholder as
determined pursuant to the two preceding paragraphs at the above office of
Skadden, Arps. The certificates for the Optional Securities being purchased on
each Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests upon reasonable notice prior to such
Optional Closing Date and will be made available for checking and packaging at
the above office of Skadden, Arps at a reasonable time in advance of such
Optional Closing Date.
4) Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth
in the Prospectus.
5) Certain Agreements of the Company and the Selling Stockholders. The Company
agrees with the several Underwriters and the Selling Stockholders that:
a) If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement, the Company will file
the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date
of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFBC.
b) The Company will advise CSFBC promptly of any proposal to amend or
supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement,
the Additional Registration Statement (if any) or the Prospectus and
will not effect such amendment or supplementation without CSFBC's
consent; and the Company will also advise CSFBC promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or
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supplementation of a Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
c) If, at any time when a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
d) As soon as practicable, but not later than the Availability Date (as
defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
e) The Company will furnish to the Representatives copies of each
Registration Statement ( six of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished
as soon as available. The Company will pay the expenses of printing
and distributing to the Underwriters all such documents.
f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
g) During the period of five years hereafter, the Company will furnish to
the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and
the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Securities Exchange
Act of 1934 or mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as CSFBC may reasonably
request.
h) For a period of 90 days after the date of the initial public offering
of the Offered Securities, the Company will not offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly,
9
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent
of CSFBC, it being understood and agreed that the Company may continue
to grant stock options in the ordinary course of business under the
Company's stock option plans and may issue stock upon the exercise of
stock options granted in the ordinary course of business under the
Company's stock option plans or upon the exercise of warrants
outstanding as of the date of the initial public offering of the
Offered Securities or upon the conversion of shares of the Company's
Series A Convertible preferred stock outstanding as of the the date of
the initial public offering of the Offered Securities.
i) The Company and each Selling Stockholder agree with the several
Underwriters that the Company will pay all expenses incident to the
performance of the obligations of the Company and such Selling
Stockholder, as the case may be, under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel)
in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto for the filing fee incident to
the review by the National Association of Securities Dealers, Inc. of
the Offered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities, for any transfer taxes on the
sale by the Selling Stockholders of the Offered Securities to the
Underwriters and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters; provided, however, that
nothing in this paragraph shall be deemed to modify, supersede or
otherwise alter any agreement between the Selling Stockholders and the
Company with respect to the payment of expenses relating to the
proposed offering.
j) Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
6) Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders herein, to the accuracy of the statements of Company officers
made pursuant to the provisions hereof, to the performance by the Company
and the Selling Stockholders of their obligations hereunder and to the
following additional conditions precedent:
a) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of Ernst & Young LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
10
i) in their opinion the financial statements and schedules examined
by them and included in the Registration Statements comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of
the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(a) the unaudited financial statements included in the
Registration Statements do not comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to
such unaudited financial statements and summary of earnings
for them to be in conformity with generally accepted
accounting principles;
(b) the unaudited consolidated net sales, net operating income,
net income and net income per share amounts for the
six-month periods ended June 30, 2000 and 2001 included in
the Prospectus do not agree with the amounts set forth in
the unaudited consolidated financial statements for those
same periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited statements of income;
(c) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more
than three business days prior to the date of this
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated net current assets or
net assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(d) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of
the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the
period of corresponding length ended the date of the latest
income statement included in the Prospectus, in consolidated
net sales or net operating income in the total or per share
amounts of consolidated net income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of
the Company and its subsidiaries subject to the internal controls
of the Company's accounting system or are derived directly from
such
11
records by analysis or computation) with the results obtained
from inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be
in agreement with such results, except as otherwise specified in
such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements. All financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statements for
purposes of this subsection.
b) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of Xxxxxx Xxxxxxxx LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
i) in their opinion the financial statements and schedules of the
Medical Waste Business of Xxxxxxxx-Xxxxxx Industries, Inc.
("BFI"), for all periods prior to and including November 4, 1999,
examined by them and included in the Registration Statements
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations; and
ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement
but the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements. All financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statements for
purposes of this subsection.
12
c) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on
the date of this Agreement or such later date as shall have been
consented to by CSFBC. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred
not later than 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time
of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop
order suspending the effectiveness of a Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the
Company or the Representatives, shall be contemplated by the
Commission.
d) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading
in the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Underwriters including the
Representatives, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange or
any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (v) any banking moratorium declared
by U.S. Federal or New York authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States;
or (vii) any attack on, outbreak or escalation of hostilities or act
of terrorism involving the United States, any declaration of war by
Congress or any other substantial national or international calamity
or emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
e) The Representatives shall have received an opinion, dated such Closing
Date, of Xxxxxxx and Colmar, counsel for the Company, to the effect
that:
i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such
13
qualification, except where the failure xxxx qualified as a
foreign corporation or in good standing would not have,
individually or in the aggregate, a Material Adverse Effect;
ii) The Offered Securities delivered on such Closing Date and all
other outstanding shares of the Common Stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in
the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities;
iii) Except for the two agreements described in Section 2(a)(vii)
hereof, there are no executory contracts, agreements or
understandings known to such counsel between the Company and any
person granting such person the right to require the Company to
file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
iv) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with
the sale of the Offered Securities, except such as have been
obtained and made under the Act and such as may be required under
state securities laws;
v) The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or
any court having jurisdiction over the Company or any subsidiary
of the Company or any of their properties, or any agreement or
instrument known to us to which the Company or any such
subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws of the Company or any such subsidiary;
vi) The Initial Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with
the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was
included in the Initial Registration Statement or the Additional
Registration Statement (as the case may be), and, to the best of
the knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and each
Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; such
counsel have no reason to believe that any part of a Registration
Statement or any amendment thereto, as of its effective date or
as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; or that the Prospectus or any amendment or supplement
thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; the descriptions in the Registration
Statements and Prospectus of statutes, legal and governmental
proceedings and
14
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of
any legal or governmental proceedings required to be described in
a Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a
character required to be described in a Registration Statement or
the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed or incorporate by
reference as required; it being understood that such counsel need
express no opinion as to the financial statements or schedules or
other financial data contained in the Registration Statements or
the Prospectus;
vii) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940; and
viii) This Agreement has been duly authorized, executed and delivered
by the Company.
f) The Representatives shall have received an opinion, dated such Closing
Date, of local counsel to Company in each jurisdiction listed in
Schedule D hereto, to the effect that:
i) the business, operations and facilities of the Company in the
jurisdiction(s) relevant to such counsel's opinion are being
conducted in compliance with all applicable federal, state,
local, and foreign laws, ordinances, rules, regulations,
licenses, permits, approvals, plans, authorizations, orders,
judgments, directives, decrees, requirements and common law
relating to occupational safety and health, or pollution, or
protection of health or the environment as now or previously in
effect (including, without limitation, those relating to,
regulating, or imposing liability or standards of conduct
concerning emissions, discharges, releases or threatened releases
of pollutants, contaminants or hazardous, dangerous, or toxic
substances, materials constituents or wastes or toxins, viruses,
infectious disease agents, or pathogens, into ambient air,
surface water, groundwater or land, or relating to the
generation, manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of chemical
substances, pollutants, contaminants or hazardous or toxic
substances, materials or wastes, including medical waste, whether
solid, gaseous or liquid in nature) or otherwise relating to
remediating real property or concerning protection of the outdoor
or indoor environment;
ii) the Company has received any notice from a governmental
instrumentality or any third party alleging any violation or
liability under any Environmental Law (including, without
limitation, liability for costs of investigating or remediating
sites containing hazardous substances and/or damages to natural
resources);
iii) there is any claim pending or, to the best of such counsel's
knowledge, threatened or contemplated under any Environmental
Laws against the Company, which, if adversely determined,
individually or in the aggregate, would have a Material Adverse
Effect; and
iv) to the knowledge of such counsel, there are any past or present
actions or conditions including, without limitation, the release
of any hazardous substance or waste regulated under any
Environmental Law, that are likely to form the basis of any such
claim against the Company which, if adversely determined,
individually or in the aggregate would have a Material Adverse
Effect.
g) The Representatives shall have received an opinion, dated such Closing
Date, of Brinks Xxxxx Xxxxxx & Xxxxx, intellectual property counsel
for the Company, to the effect that:
15
i) the statements contained in the Registration Statement and the
Prospectus, insofar as they relate to the Company's and its
Subsidiaries' intellectual property position, have been reviewed
and approved by such counsel, are accurate in all material
respects and fairly present the information set forth therein to
the best of such counsel's knowledge;
ii) to the best of such counsel's knowledge, except as disclosed in
the Registration Statement and the Prospectus, there are no
pending or threatened legal or governmental proceedings relating
to patents, trademarks, service marks or proprietary information
owned or used by the Company or its Subsidiaries to which the
Company or its Subsidiaries is a party or of which any property
of the Company or its Subsidiaries is the subject;
iii) to the best of such counsel's knowledge, neither the Company nor
any of its Subsidiaries is currently in breach of, or in default
under, any agreement or instrument which the Company or any of
its Subsidiaries is a party or by which any of them or any of
their property may be bound or affected;
iv) such counsel has no reason to believe that either the
Registration Statement or the Prospectus or any amendment thereof
or supplement thereto contains any untrue statement of a material
fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading relating to the patents, patent applications,
trademarks, service marks, proprietary information or other
intellectual property of the Company or any of its Subsidiaries;
v) to the best of such counsel's knowledge, the Company owns of
record all right, title and interest in and to the patents,
patent applications, trademarks, service marks, property
information and other intellectual property described in the
Registration Statement and all intellectual property necessary to
conduct the business now being or proposed to be conducted by the
Company and its Subsidiaries free and clear of any adverse claim
known by such counsel of any third party; to the best of such
counsel's knowledge, the Company has not infringed, is not
infringing and has not received any notice of infringement of any
patents or other intellectual property rights of any other person
which individually or in the aggregate could have a Material
Adverse Effect;
vi) to the best of such counsel's knowledge, there is no litigation
or governmental or other proceeding relating to patents or other
intellectual property rights, before any court or before or by
any public body or board pending to which the Company or any of
its Subsidiaries is a party or threatened against the Company or
any of its Subsidiaries which individually or in the aggregate
could have a Material Adverse Effect; to the best of such
counsel's knowledge, the Company has not given notice to any
third party of any claim of infringement of its patents;
vii) to the best of such counsel's knowledge, the applications and
other documents filed by the Company or any of its Subsidiaries
with the United States Patent and Trademark Office, any foreign
patent or trademark offices, have been duly and adequately filed
and to the best of such counsel's knowledge, in connection with
such applications, no fraud on such office was practiced or
attempted and the duty of disclosure required by such office was
not violated through bad faith or gross negligence, and except as
specifically described in the Registration Statement and the
Prospectus such counsel knows of no infringement or conflict with
the existing enforceable intellectual property rights of others
(or of claims thereof) with respect to the products or processes
covered by such applications or documents or utilized by the
Company or any of its Subsidiaries in their respective businesses
which, individually or in the
16
aggregate, if the subject of an unfavorable decision, ruling or
finding, could have a Material Adverse Effect.
viii) to the best of such counsel's knowledge, the Company and its
Subsidiaries take security measures, and take appropriate
contractual measures, to enforce trade secret protection in their
non-patented technology;
ix) to the best of such counsel's knowledge, the agreements executed
by the Company and its Subsidiaries regarding trade secrets,
confidentiality and intellectual property rights are valid,
binding and enforceable in accordance with their express terms;
and
x) such counsel has reviewed all relevant files of the Company and
its Subsidiaries in its possession regarding the Company's and
its Subsidiaries' intellectual property position and has inquired
with officers and employees of the Company and its Subsidiaries
as appropriate.
h) The Representatives shall have received an opinion, dated such Closing
Date, of Xxxxxxxx & Xxxxx, counsel for the Selling Stockholders, to
the effect that:
i) The Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling Stockholders.
ii) The execution and delivery of the Underwriting Agreement by or on
behalf of the Selling Stockholders, the performance by the
Selling Stockholders of their obligations thereunder and the
Selling Stockholders' sale of the Shares to you in accordance
with the Underwriting Agreement do not: (i) violate the charter,
by-laws or other organizational documents of the Selling
Stockholders; (ii) violate any order, judgment or decree known to
us (after inquiry of the Selling Stockholders) of any court or
governmental agency or body having jurisdiction over the Selling
Stockholders which order, judgment or decree is specifically
applicable to the Selling Stockholders; (iii) constitute a
violation by the Selling Stockholders of any applicable provision
of any law, statute or regulation of any governmental agency or
body having jurisdiction over the Selling Stockholders or the
property of the Selling Stockholders (except that we express no
opinion in this paragraph as to compliance with any disclosure
requirement or any prohibition against fraud or
misrepresentation); or (iv) breach, or result in a default under,
any existing obligation of the Selling Stockholders under any
agreement or instrument known to us (after inquiry of the Selling
Stockholders) to which the Selling Stockholders are party or by
which the Selling Stockholders are bound and to which any
property or assets of the Selling Stockholders are subject, in
each case other than such violations, breaches or defaults which,
individually or in the aggregate, would not materially adversely
affect the Selling Stockholders' ability to perform their
obligations under the Underwriting Agreement.
iii) The Selling Stockholders are not required to obtain any consent,
approval, authorization or order of any governmental agency or
body, or to our knowledge, any court for the delivery and sale of
the Shares under the Underwriting Agreement or the performance by
the Selling Stockholders of their obligations under the
Underwriting Agreement, except for the order by the Commission
declaring the Registration Statement effective.
iv) The Selling Stockholders will be, immediately prior to the
Closing Date, the sole registered owners of the Shares to be sold
by the Selling Stockholders as set forth on Schedule A to the
underwriting Agreement. Upon delivery of the Shares to the
Underwriters against payment therefor as contemplated by the
Underwriting Agreement and registration of the Shares in the
names of the Underwriters in the stock records of the Company,
the Underwriters will have acquired valid title to such Shares,
free and clear of all adverse claims. For purposes of this
17
opinion, we have assumed that the Underwriters will have
purchased the Shares for value in good faith and without notice
of any adverse claim or defect in the validity of the Shares and
will take possession at the closing of the certificates
representing the Shares and the instruments pursuant to which the
Selling Stockholders has assigned the Shares to the Underwriters.
The term "adverse claim" as used in this opinion has the meaning
given such term in Article 8 of the Uniform Commercial Code as
adopted in the State of New York (the "UCC") and does not include
(i) any claim which arises through the Underwriters or any person
claiming through the Underwriters (such as any security interest
the Underwriters may have granted in the Securities) and (ii) any
adverse interest which would not be extinguished upon the
purchase of the Shares by a person who qualifies as a "bona fide
purchaser" or "protected purchaser" under Section 8-303 of the
UCC. We advise you that we have no actual knowledge of the
existence of any interest of the kind specified in clause (ii) of
the preceding sentence. We have also assumed that such
Underwriters' rights are not limited by subsection (3) of Section
8-302 of the UCC.
i) The Representatives shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the incorporation
of the Company, the validity of the Offered Securities being offered
by the Company and delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholders and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
j) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall
state that: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and (3) of
Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under
the Act, prior to the time the Prospectus was printed and distributed
to any Underwriter; and, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated
by the Prospectus or as described in such certificate.
k) The Representatives shall have received a letter, dated such Closing
Date, of Ernst & Young LLP and Xxxxxx Xxxxxxxx LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
l) On or prior to the date of this Agreement, the Representatives shall
have received lockup letters from each of executive officers and
directors and other existing stockholders of the Company listed on
Schedule C hereto and each of the Selling Stockholders listed on
Schedule A hereto.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably requests. CSFBC may in
18
its sole discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
7) Indemnification and Contribution.
a) The Company will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any who controls
such Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any
of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (c) below.
b) Each Selling Stockholder, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, directors and
officers and each person who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
prospectus, 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,
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the
Selling Stockholder will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished to the
Company by an Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described as such in subsection (c) below; provided, further, that the
Selling Stockholder shall only be subject to such liability to the
extent that the untrue statement or alleged untrue statement or
omission or alleged omission is based upon information furnished to
the Company by such Selling Stockholder specifically for use therein,
it being understood and agreed that the only such information
furnished by any Selling Stockholder appears under the caption
"Management Ownership and Selling Stockholders - Selling Stockholders"
or contained in a representation or warranty given by the Selling
Stockholders in this Agreement; and provided further that each Selling
Stockholder shall be liable only to the extent of the aggregate gross
proceeds received by such Selling Stockholder from the sale of such
Selling Stockholder's Offered Securities.
19
c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the
Act, and each Selling Stockholder against any losses, claims, damages
or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or
any related preliminary prospectus, or arise out of or are based upon
the omission or the 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 such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Underwriter consists
of (i) the following information in the Prospectus furnished on behalf
of each Underwriter: the concession and reallowance figures appearing
in the fourth paragraph under the caption "Underwriting" and the
information contained in the ninth paragraph under the caption
"Underwriting"; and (ii) the following information in the Prospectus
furnished on behalf of the Representatives:
"DLJ Capital Funding Inc., which serves as the syndication arranger
for the lenders, the lead arranger and the book manager, under our
existing senior secured credit facility, is an affiliate of Credit
Suisse First Boston Corporation."
and;
"Credit Suisse First Boston Corporation, through its investment funds,
CSFB Fund Investments VI, L.P., CSFB Fund Investments 1998, X.X., XXX
Xxxx Xxxxxxxxxx Xxxxxxxx XX, X.X., XXX Private Equity Partners, L.P.,
and DLJ Private Equity Employee Fund, L.P., is an investor in one of
the Madison Dearborn funds. Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, an affiliate of Credit Suisse First Boston Corporation,
was the placement agent in our sale of $125 million of 12 3/8% senior
subordinated notes due 2009. We have engaged, and may in the future
engage, Credit Suisse First Boston Corporation in investment banking
transactions for which they receive customary compensation. Credit
Suisse First Boston Corporation currently makes a market in both our
debt and equity securities."
d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying
party under subsection (a), (b) or (c) above, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under subsection (a), (b)
or (c) above. In case any such 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 therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such
20
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such (i)
settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such
action and (ii) does not include a statement as to, or an admission
of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection
(a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities referred to in subsection
(a), (b) or (c) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company and
the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company, the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are
several in proportion to their respective underwriting obligations and
not joint. In no event shall the liability of a Selling Stockholder
under this Section 7(e) exceed the amount that such Selling
Stockholder would have been required to pay under Section 7(b) had
such indemnification been held to be available thereunder.
f) The obligations of the Company and the Selling Stockholders under this
Section shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any
Underwriter (as hereinafter defined) within the meaning of the Act;
and the obligations of the Underwriters under this Section shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each
21
director of the Company, to each officer of the Company who has signed
a Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
8) Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total number of shares of
Offered Securities that the Underwriters are obligated to purchase on such
Closing Date, CSFBC may make arrangements satisfactory to the Company and
the Selling Stockholders for the purchase of such Offered Securities by
other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares
of Offered Securities with respect to which such default or defaults occur
exceeds 10% of the total number of shares of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to CSFBC, the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons
are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Stockholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities
after the First Closing Date, this Agreement will not terminate as to the
Firm Securities or any Optional Securities purchased prior to such
termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its
default.
9) Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements
of the Selling Stockholders, of the Company or its officers and of the
several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any
Underwriter,--the--any--Selling Stockholder, the Company or any of their
respective Representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for
any reason the purchase of the Offered Securities by the Underwriters is
not consummated, the Company and the Selling Stockholders shall remain
responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of
Section 6(c), the Company and the Selling Stockholders will, jointly and
severally, reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them
in connection with the offering of the Offered Securities.
10) Notices. All communications hereunder will be in writing and:
a) if sent to the Underwriters, will be mailed, delivered or telegraphed
and confirmed to the Representatives, Eleven Madison Avenue, New York,
N.Y. 10010-3629, Attention: Transactions Advisory Group, with a copy
to Skadden, Arps, Slate, Xxxxxxx & Xxxx, Four Times Square, New York,
New York, 10036, Attention: Xxxxxxx X. Xxxxxxxxx, Esq. (Fax: (212)
000-0000; Telephone
22
(000) 000-0000); provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter; or,
b) if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at Stericycle, Inc., 00000 Xxxxx Xxxxx Xxxxx, Xxxx
Xxxxxx, Xxxxxxxx 00000 Attention: Xxxx X. Xxxxxx, with a copy to
Xxxxxxx and Colmar, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000 (Telephone (000) 000-0000), Attention Xxxxx X. Xxxxxx;
or,
c) if sent to the Selling Stockholders, will be mailed, delivered or
telegraphed and confirmed to Xxxxxxxx & Xxxxx at 000 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (Telephone (000) 000-0000, Attention:
Xxxxxx X. Xxxxx.
11) Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12) Representation. The Representatives will act for the several Underwriters
in connection with the transactions contemplated by this Agreement, and any
action under this Agreement taken by the Representatives will be binding
upon all the Underwriters.
13) 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 Agreement.
14) APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby as its authorized agent in the Borough of Manhattan in The
City of New York upon which process may be served in any such suit or
proceeding, and agrees that service of process upon such agent, and written
notice of said service to the Company by the person serving the same to the
address provided in Section 10, shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding. The Company
further agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period
of seven years from the date of this Agreement.
23
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
MADISON DEARBORN CAPITAL PARTNERS III, L.P
By:
-------------------------------------
Name:
Title:
MADISON DEARBORN SPECIAL EQUITY III, L.P.
By:
-------------------------------------
Name:
Title:
SPECIAL ADVISORS FUND I, LLC
By:
-------------------------------------
Name:
Title:
24
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very Truly Yours,
XXXX CAPITAL FUND VI, L.P.
By:
----------------------------------
Name:
Title:
BCIP ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP ASSOCIATES II-C
BCIP TRUST ASSOCIATES II
BCIP TRUST ASSOCIATES II-B
By:
----------------------------------
Name:
Title:
PEP INVESTMENTS PTY. LIMITED
By:
----------------------------------
Name:
Title:
BROOKSIDE CAPITAL PARTNERS FUND, L.P.
By:
----------------------------------
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By:
----------------------------------
Name:
Title:
25
If the foregoing is in accordance with the Representatives' understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement among the Selling Stockholders, the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
STERICYCLE, INC.
By:
------------------------
Name:
Title:
26
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
UBS WARBURG LLC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & COMPANY, L.L.C.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
BY: CREDIT SUISSE FIRST BOSTON
CORPORATION
-----------------------------
Name:
Title:
27
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER TO BE SOLD BE SOLD
------------------- ---------- -------
Madison Dearborn Capital Partners III, L.P. 828,210
Madison Dearborn Special Equity III, L.P. 18,390
Special Advisors Fund I, LLC 3,400
Xxxx Capital Fund VI, L.P. 581,635
BCIP Associates II 102,833
BCIP Associates II-B 14,095
BCIP Associates II-C 30,217
BCIP Trust Associates II 29,563
BCIP Trust Associates II-B 4,718
PEP Investments Pty. Limited 1,939
Brookside Capital Partners Fund L.P. 42,500
Sankaty High Yield Asset Partners, L.P. 42,500
Total......................................... 1,700,000
========= ==========
28
SCHEDULE B
NUMBER OF FIRM SECURITIES TOTAL
TO BE SOLD BY NUMBER OF
------------- FIRM SECURITIES
SELLING TO BE
UNDERWRITER COMPANY STOCKHOLDER PURCHASED
----------- ------- ----------- ---------
Credit Suisse First Boston Corporation.............
UBS Warburg LLC
Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Bear, Xxxxxxx & Co., Inc.
Xxxxxxx Xxxxx & Company L.L.C.
------- ----------- ---------
Total...................................... ======= =========== =========
29
SCHEDULE C
LIST OF OFFICERS, DIRECTORS AND STOCKHOLDERS
SIGNING LOCK-UP AGREEMENTS
NAME
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxxxxxxx
Xxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxx
L. Xxxx Xxxxxxxxx, Ph.D.
Xxxxxxx X. Xxxxxx
Xxxxx X.X. ten Xxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxxx
30
SCHEDULE D:
JURISDICTIONS FOR WHICH AN OPINION IS REQUIRED
Arizona
California
Colorado
Connecticut
Florida
Georgia
Illinois
Indiana
Kansas
Kentucky
Massachusetts
Maryland
Michigan
Nebraska
New Mexico
New York
Ohio
Oklahoma
Oregon
Rhode Island
Tennessee
Texas
Utah
Xxxxxxxxxx
Xxxxxxxxx
Xxxxxxx, Xxxxxx
31
