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EXHIBIT 1.1
Shares
COMPLETE BUSINESS SOLUTIONS, INC.
Common Stock
UNDERWRITING AGREEMENT
__________, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX, XXXXX XXXXX, INCORPORATED
As representatives of the
several underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Complete Business Solutions, Inc., a Michigan corporation (the "Company"),
and the shareholders of the Company named in Schedule II hereto (collectively,
the "Selling Shareholders"), severally propose to sell an aggregate of
__________ shares of common stock, par value $.01, of the Company (the "Firm
Shares"), to the several underwriters named in Schedule I hereto (the
"Underwriters"). The Firm Shares consist of __________ shares to be issued and
sold by the Company and __________ outstanding shares to be sold by the Selling
Shareholders. The Selling Shareholders also propose to issue and sell to the
several Underwriters not more than __________ additional shares of common
stock, par value $.01, of the Company (the "Additional Shares"), if requested
by the Underwriters as provided in Section 2 hereof. The Firm Shares and the
Additional Shares are herein collectively called the Shares. The shares of
common stock of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the Common Stock. The
Company and the Selling Shareholders are hereinafter collectively called the
Sellers.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and
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regulations of the Commission thereunder (collectively called the "Act"), a
registration statement on Form S-1 including a prospectus relating to the
Shares, which may be amended. The registration statement, as amended at the
time when it becomes effective, including a registration statement (if any)
filed pursuant to Rule 462(b) under the Act increasing the size of the offering
registered under the Act and information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter referred to as the Registration Statement; and the
prospectus in the form first used to confirm sales of Shares is hereinafter
referred as the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations
and warranties contained in this Agreement, and subject to its terms and
conditions, (i) the Company agrees to issue and sell __________ Firm Shares,
(ii) each Selling Shareholder agrees, severally and not jointly, to sell the
number of Firm Shares set forth opposite such Selling Shareholder's name in
Schedule II hereto, and (iii) each Underwriter agrees, severally and not
jointly, to purchase from each Seller at a price per share of $______ (the
"Purchase Price") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Firm Shares to be sold by such Seller as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) each Selling
Shareholder agrees, severally and not jointly, to sell the number of Additional
Shares set forth opposite such Selling Shareholder's name in Schedule __
hereto, and (ii) the Underwriters shall have the right to purchase, severally
and not jointly, up to an aggregate __________ Additional Shares from such
Selling Shareholders at the Purchase Price. Additional Shares may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. The Underwriters may exercise their
right to purchase Additional Shares in whole or in part from time to time by
giving written notice thereof to the Company within 30 days after the date of
this Agreement. You shall give any such notice on behalf of the Underwriters
and such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof. The date specified in any such notice shall be a business day (i) no
earlier than the Closing Date (as hereinafter defined), (ii) no later than ten
business days after such notice has been given and (iii) no earlier than two
business days after such notice has been given. If any Additional Shares are
to be purchased, each Underwriter, severally and not jointly, agrees to
purchase from the Company the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) which bears
the same proportion to the total number of Additional Shares to be purchased
from the Company as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I bears to the total number of Firm Shares.
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The Sellers hereby agree, severally and not jointly, and the Company
shall, concurrently with the execution of this Agreement, deliver an agreement
executed by (i) each of the directors and officers of the Company who is not a
Selling Shareholder and (ii) each shareholder listed on Annex I hereto,
pursuant to which each such person agrees, not to offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any common stock of
the Company or any securities convertible into or exercisable or exchangeable
for such common stock or in any other manner transfer all or a portion of the
economic consequences associated with the ownership of any such common stock,
except to the Underwriters pursuant to this Agreement, for a period of 180 days
after the date of the Prospectus without the prior written consent of
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. Notwithstanding the
foregoing, during such period (i) the Company may grant stock options pursuant
to the Company's existing stock option plan and (ii) the Company may issue
shares of its common stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof.
3. Terms of Public Offering. The Sellers are advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Shares as soon after the effective date of the Registration Statement as
in your judgment is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and payment for
the Firm Shares shall be made at 10:00 A.M., New York City time, on the third
or fourth business day unless otherwise permitted by the Commission pursuant to
Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (the "Closing Date") following the date of the initial public offering,
at such place outside the State of New York as you shall designate. The
Closing Date and the location of delivery of and the form of payment for the
Firm Shares may be varied by agreement between you and the Sellers.
Delivery to the Underwriters of, and payment for, any Additional Shares to
be purchased by the Underwriters shall be made at such place as you shall
designate at 10:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "Option
Closing Date"). Any such Option Closing Date and the location of delivery of
and the form of payment for such Additional Shares may be varied by agreement
between you and the Company.
Certificates for the Shares shall be registered in such names and issued
in such denominations as you shall request in writing not later than two full
business days prior to the Closing Date or an Option Closing Date, as the case
may be. Such certificates shall be made available to you for inspection not
later than 9:30 A.M., New York City time, on the business day next preceding
the Closing Date or an Option Closing Date, as the case may be. Certificates
in definitive form evidencing the Shares shall be delivered to you on the
Closing Date or an Option Closing Date, as the case may be, with any transfer
taxes, if any, thereon duly paid by the respective Sellers, for the respective
accounts of the
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several Underwriters, against payment of the Purchase Price therefor by wire
transfer of same day funds to the order of the applicable Sellers.
5. Agreements of the Company. The Company agrees with you:
(a)To use its best efforts to cause the Registration Statement to
become effective at the earliest possible time.
(b)To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) when the Registration Statement has become effective and
when any post-effective amendment to it becomes effective, (ii) of any request
by the Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of the Shares
for offering or sale in any jurisdiction, or the initiation of any proceeding
for such purposes, and (iv) of the happening of any event during the period
referred to in paragraph (e) below which makes any statement of a material fact
made in the Registration Statement or the Prospectus untrue or which requires
the making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest possible time.
(c)To furnish to you, without charge, five signed copies of the
Registration Statement as first filed with the Commission and of each amendment
to it, including all exhibits, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the Registration Statement
as so filed and of each amendment to it, without exhibits, as you may
reasonably request.
(d)Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or to
make any amendment or supplement to the Prospectus of which you shall not
previously have been advised or to which you shall reasonably object; and to
prepare and file with the Commission, promptly upon your reasonable request,
any amendment to the Registration Statement or supplement to the Prospectus
which may be necessary or advisable in connection with the distribution of the
Shares by you, and to use its best efforts to cause the same to become promptly
effective.
(e)Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as in the reasonable opinion of
counsel for the Underwriters a prospectus is required by law to be delivered in
connection with sales by an Underwriter or a dealer, to furnish to each
Underwriter and dealer as many copies of the Prospectus (and of any amendment
or supplement to the Prospectus) as such Underwriter or dealer may reasonably
request.
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(f)If during the period specified in paragraph (e) any event shall
occur as a result of which, in the reasonable opinion of counsel for the
Underwriters it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply with law,
and to furnish to each Underwriter and to such dealers as you shall specify,
such number of copies thereof as such Underwriter or dealers may reasonably
request.
(g)Prior to any public offering of the Shares, to cooperate with you
and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such qualification in effect so long as required
for distribution of the Shares and to file such consents to service of process
or other documents as may be necessary in order to effect such registration or
qualification.
(h)To mail and make generally available to its shareholders as soon as
reasonably practicable an earnings statement covering a period of at least
twelve months after the effective date of the Registration Statement (but in no
event commencing later than 90 days after such date) which shall satisfy the
provisions of Section 11(a) of the Act.
(i)During the period of five years after the date of this Agreement,
(i) to mail as soon as reasonably practicable after the end of each fiscal year
to the record holders of its Common Stock a financial report of the Company and
its subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified
by independent certified public accountants, and (ii) to mail and make
generally available as soon as practicable after the end of each quarterly
period (except for the last quarterly period of each fiscal year) to such
holders, a consolidated balance sheet, a consolidated statement of operations
and a consolidated statement of cash flows (and similar financial reports of
all unconsolidated subsidiaries, if any) as of the end of and for such period,
and for the period from the beginning of such year to the close of such
quarterly period, together with comparable information for the corresponding
periods of the preceding year.
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(j)During the period referred to in paragraph (i), to furnish to you as
soon as available a copy of each report or other publicly available information
of the Company mailed to the holders of Common Stock or filed with the
Commission and such other publicly available information concerning the Company
and its subsidiaries as you may reasonably request.
(k)To pay all costs, expenses, fees and taxes (other than expenses of
counsel to the Underwriters, except as provided in subcvlause (iii) below)
incident to (i) the preparation, printing, filing and distribution under the
Act of the Registration Statement (including financial statements and
exhibits), each preliminary prospectus and all amendments and supplements to
any of them prior to or during the period specified in paragraph (e), (ii) the
printing and delivery of the Prospectus and all amendments or supplements to it
during the period specified in paragraph (e), (iii) the printing and delivery
of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all
other agreements, memoranda, correspondence and other documents printed and
delivered in connection with the offering of the Shares (including in each case
any disbursements of counsel for the Underwriters relating to such printing and
delivery), (iv) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states (including in
each case the fees and disbursements of counsel for the Underwriters relating
to such registration or qualification and memoranda relating thereto), (v)
filings and clearance with the National Association of Securities Dealers, Inc.
in connection with the offering, (vi) the listing of the Shares on the Nasdaq
National Market (vii) furnishing such copies of the Registration Statement, the
Prospectus and all amendments and supplements thereto as may be requested for
use in connection with the offering or sale of the Shares by the Underwriters
or by dealers to whom Shares may be sold and (viii) the performance by the
Sellers of their other obligations under this Agreement.
(l)To use its best efforts to maintain the inclusion of the Common
Stock in the Nasdaq National Market (or on a national securities exchange) for a
period of five years after the effective date of the Registration Statement.
(m)To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
6. Representations and Warranties of the Company and the Selling
Shareholders. The Company and the Selling Shareholders represent and warrant
to each Underwriter that:
(a)The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
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(b) (i) Each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply
in all material respects with the Act and (iii) the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c)Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, and each Registration Statement filed
pursuant to Rule 462(b) under the Act, if any, complied when so filed in all
material respects with the Act; and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d)The Company owns, beneficially and of record, 100% of the capital
stock of CBS Complete Business Solutions (Mauritius) Limited, a company
organized under the laws of Mauritius ("CBSI Mauritius"), which owns 100% of
the capital stock of Complete Business Solutions (India) Private Limited, a
company organized under the laws of India ("CBSI India" and collectively with
CBSI Mauritius, the "Subsidiaries"); all such shares of capital stock are owned
by the Company free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature. The Company does not own or
control, directly or indirectly, any corporation, association or other entity
other than the Subsidiaries.
(e)The Company and each of the Subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to
carry on its business as it is currently being conducted and to own, lease and
operate its properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and the Subsidiaries, taken as a whole.
(f)The purchases by the Company of the minority interests in CBSI
Mauritius [and CBSI India] contemplated by the CBSI Minority Stock Purchase
Agreement, dated __________, 199_ (the "Minority Stock Purchase Agreement"),
between the holders of the minority interests in each of the Subsidiaries, and
the
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Company has been duly and validly consummated and is effective under applicable
law. No consent, approval, authorization or order of any government or
governmental agency, which has jurisdiction over any of the parties to the
Minority Stock Purchase Agreement or over their respective properties is
required for the execution and delivery of the Minority Stock Purchase
Agreement and the consummation of the transactions contemplated thereby, except
for such consents, approvals, authorizations or orders as have been duly and
timely received or obtained. The performance of the Minority Stock Purchase
Agreement and the consummation of the transactions therein contemplated will
not result in a breach or violation of any of the terms or provisions of, or
constitute a default under, (i) any bond, debenture, note or other evidence of
indebtedness, indenture, mortgage, deed of trust or loan agreement, or under
any material lease, contract, joint venture or other agreement, in each case to
the best of the Company's knowledge, to which any of the parties to the
Minority Stock Purchase Agreement was a party or by which any of such parties
or their respective properties were bound, (ii) the charter or by-laws of
either of the parties to the Minority Stock Purchase Agreement, or (iii) any
law or, to the best of the Company's knowledge, order of any court which had
jurisdiction over any of the parties to the Minority Stock Purchase Agreement
or over their respective property.
(g)All the outstanding shares of capital stock of the Company and the
Subsidiaries (including the Shares to be sold by the Selling Shareholders) have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights; and the Shares to be issued
and sold by the Company hereunder have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor as provided by this
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights.
(h)The authorized capital stock of the Company, including the Common
Stock, conforms as to legal matters to the description thereof contained in the
Prospectus.
(i)Neither the Company nor either of the Subsidiaries is in violation
of its respective charter or by-laws or in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or
any other evidence of indebtedness or in any other agreement, indenture or
instrument material to the conduct of the business of the Company and the
Subsidiaries, taken as a whole, to which the Company or either of the
Subsidiaries is a party or by which it or either of the Subsidiaries or their
respective property is bound.
(j)The execution, delivery and performance of this Agreement, the [S
Corporation Termination Agreement, the Tax Allocation and Indemnification
Agreement] collectively, the "Ancillary Agreements"), compliance by the Company
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and by the Ancillary Agreements will not
require any consent, approval, authorization or other order of any court,
regulatory body, administrative
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agency or other governmental body, except as such may be required under the
securities or Blue Sky laws of the various states, and will not conflict with
or constitute a breach of any of the terms or provisions of, or a default
under, the charter or by-laws of the Company or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any of its subsidiaries
is a party or by which it or any of the Subsidiaries or their respective
property is bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company or the
Subsidiaries, or their respective property.
(k)Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any of their respective property is
the subject, and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated. No contract or document of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement is not so described or
filed as required.
(l)Neither the Company nor either of the Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection
of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), nor any foreign,
federal or state law relating to discrimination in the hiring, promotion or pay
of employees nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might result in any
material adverse change in the business, prospects, financial condition or
results of operation of the Company and the Subsidiaries, taken as a whole.
(m)The Company and each of the Subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease and operate its respective properties and
to conduct its business; the Company and each of its subsidiaries has fulfilled
and performed all of its material obligations with respect to such permits and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit; and, except as
described in the Prospectus, such permits contain no restrictions that are
materially burdensome to the Company or any of its subsidiaries.
(n)Except as otherwise set forth in the Prospectus or such as are not
material to the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, the Company
and each of the Subsidiaries has good and marketable title, free and clear of
all liens, claims, encumbrances and restrictions except liens for taxes not yet
due and payable, to all property and assets described in the Registration
Statement as being owned by it. All leases to which the Company or either of
the Subsidiaries is a party are valid and binding
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and no default has occurred or is continuing thereunder, which might result in
any material adverse change in the business, prospects, financial condition or
results of operation of the Company and its subsidiaries taken as a whole, and
the Company and the Subsidiaries enjoy peaceful and undisturbed possession
under all such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the Company or
such Subsidiary.
(o)The Company and each of the Subsidiaries maintain reasonably
adequate insurance.
(p)Xxxxxx Xxxxxxxx LLP are independent public accountants with
respect to the Company as required by the Act.
(q)The financial statements, together with related schedules and notes
forming part of the Registration Statement and the Prospectus (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of the
Company and the Subsidiaries on the basis stated in the Registration Statement
at the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Registration Statement and
the Prospectus (and any amendment or supplement thereto) is, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(r)The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own, lease and operate its
respective properties and to conduct its business in the manner described in
the Prospectus, subject to such qualifications as may be set forth in the
Prospectus; the Company and each of the Subsidiaries has fulfilled and
performed all of its material obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment
of the rights of the holder of any such permit, subject in each case to such
qualification as may be set forth in the Prospectus; and, except as described
in the Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of its subsidiaries.
(s)Except as disclosed in or specifically contemplated by the
Prospectus, the Company and the Subsidiaries have sufficient intellectual
property rights (including, without limitation, trademarks, trade names, patent
rights, mask works, copyrights and licenses), approvals and governmental
authorizations to conduct their businesses as now conducted; the expiration of
any intellectual property rights (including, without limitation, trademarks,
trade names, patent rights, mask works, copyrights and licenses), approvals or
governmental authorizations would not have a material adverse effect on the
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condition (financial or otherwise), business, results of operations or
prospects of the Company or the Subsidiaries; and the Company has no knowledge
of any infringement by it or the Subsidiaries of intellectual property rights
(including, without limitation, trademarks, trade names, patent rights, mask
works, copyrights and licenses), trade secret or other similar rights of
others, and there is no claim being made against the Company or the
Subsidiaries regarding trademark, trade name, patent, mask work, copyright,
license, trade secret or other infringement of intellectual property rights
which could have a material adverse effect on the condition (financial or
otherwise), business, results of operations or prospects of the Company or on
the operations or prospects of Subsidiaries.
(t)The Company is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(u)No holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the Company.
(v)The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(w)The Company has filed a registration statement pursuant to Section
12(g) of the Exchange Act, to register the Common Stock, has filed an
application to list the Shares on the Nasdaq National Market, and has received
notification that the listing has been approved, subject to notice of issuance.
(x)Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed therein by
Item 404 of Regulation S-K of the Commission.
(y)There is (i) no significant unfair labor practice complaint pending
against the Company or any of its subsidiaries or, to the best knowledge of the
Company, threatened against any of them, before the National Labor Relations
Board or any state or local labor relations board, and no significant grievance
or more significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened against any
of them, and (ii) no significant strike, labor dispute, slowdown or stoppage
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against it or any of its subsidiaries
except for such actions specified in clause (i) or (ii) above, which, singly or
in the aggregate could not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(z)All material tax returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest,
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assessments, fees and other charges due pursuant to such returns or pursuant to
any assessment received by the Company or any of its subsidiaries have been
paid, other than those being contested in good faith and for which adequate
reserves have been provided.
7. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder severally represents and warrants to each Underwriter that:
(a)Such Selling Shareholder is the lawful owner of the Shares to be
sold by such Selling Shareholder pursuant to this Agreement and has, and on the
Closing Date (and Option Closing Date, if applicable) will have, good and clear
title to such Shares, free of all restrictions on transfer, liens,
encumbrances, security interests and claims whatsoever.
(b)Upon delivery of and payment for such Shares pursuant to this
Agreement, good and clear title to such Shares will pass to the Underwriters,
free of all restrictions on transfer, liens, encumbrances, security interests
and claims whatsoever.
(c)Such Selling Shareholder has, and on the Closing Date will have,
full legal right, power and authority to enter into this Agreement and the
Custody Agreement between the Selling Shareholders and ___________________, as
Custodian (the "Custody Agreement") and to sell, assign, transfer and deliver
such Shares in the manner provided herein and therein, and this Agreement and
the Custody Agreement have been duly authorized, executed and delivered by such
Selling Shareholder and each of this Agreement and the Custody Agreement is a
valid and binding agreement of such Selling Shareholder enforceable in
accordance with its terms, except as rights to indemnity and contribution
hereunder may be limited by applicable law.
(d)The power of attorney signed by such Selling Shareholder appointing
_________________ and ________________, or either one of them, as his
attorney-in-fact to the extent set forth therein with regard to the
transactions contemplated hereby and by the Registration Statement and the
Custody Agreement has been duly authorized, executed and delivered by or on
behalf of such Selling Shareholder and is a valid and binding instrument of
such Selling Shareholder enforceable in accordance with its terms, and,
pursuant to such power of attorney, such Selling Shareholder has authorized
_________________ and ________________, or either one of them, to execute and
deliver on his behalf this Agreement and any other document necessary or
desirable in connection with transactions contemplated hereby and to deliver
the Shares to be sold by such Selling Shareholder pursuant to this Agreement.
(e)Such Selling Shareholder has not taken, and will not take, directly
or indirectly, any action designed to, or which might reasonably be expected to,
cause or result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares pursuant to the
distribution contemplated by this Agreement, and other than as permitted by the
Act, the Selling Shareholder has not
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distributed and will not distribute any prospectus or other offering material
in connection with the offering and sale of the Shares.
(f)The execution, delivery and performance of this Agreement by such
Selling Shareholder, compliance by such Selling Shareholder with all the
provisions hereof and the consummation of the transactions contemplated hereby
will not require any consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body
(except as such may be required under the Act, state securities laws or Blue
Sky laws) and will not conflict with or constitute a breach of any of the terms
or provisions of, or a default under, organizational documents of such Selling
Shareholder, if not an individual, or any agreement, indenture or other
instrument to which such Selling Shareholder is a party or by which such
Selling Shareholder or property of such Selling Shareholder is bound, or
violate or conflict with any laws, administrative regulation or ruling or court
decree applicable to such Selling Shareholder or property of such Selling
Shareholder.
(g)Such parts of the Registration Statement under the caption
"Principal and Selling Shareholders" which specifically relate to such Selling
Shareholder do not, and will not on the Closing Date (and any Option Closing
Date, if applicable), contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of circumstances under which they were made,
not misleading.
(h)At any time during the period described in paragraph 5(e) hereof, if
there is any change in the information referred to in paragraph 7(g) above, the
Selling Shareholders will immediately notify you of such change.
8. Indemnification. (a) The Company and each Selling Shareholder,
jointly and severally, agree to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), from and against any and all losses, claims,
damages, liabilities and judgments caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriters
furnished in writing to the Company by or on behalf of any Underwriter through
you expressly for use therein. Notwithstanding the foregoing, the aggregate
liability of any Selling Shareholder pursuant to the provisions of this
paragraph shall be limited to an amount equal to the aggregate purchase price
received by such Selling Shareholder from the sale of such Selling
Shareholder's Shares hereunder; provided, however, that the foregoing indemnity
agreement with respect to
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any preliminary prospectus shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages and liabilities
and judgments purchased Shares, or any person controlling such Underwriter, if
a copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended and supplemented)
would have cured the defect giving rise to such loss, claim, damage, liability
or judgment.
(b) In case any action shall be brought against any Underwriter or any
person controlling such Underwriter, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Company and the
Selling Shareholders, such Underwriter shall promptly notify the Company and
the Selling Shareholders in writing and the Company and the Selling
Shareholders shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all
fees and expenses. Any Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the
employment of such counsel has been specifically authorized in writing by the
Company, (ii) the Company and the Selling Shareholders shall have failed to
assume the defense and employ counsel or (iii) the named parties to any such
action (including any impleaded parties) include both such Underwriter or such
controlling person and the Company or any Selling Shareholder, as the case may
be, and such Underwriter or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the Company or the
Selling Shareholders, as the case may be, (in which case the Company and the
Selling Shareholders shall not have the right to assume the defense of such
action on behalf of such Underwriter or such controlling person, it being
understood, however, that the Company and the Selling Shareholders shall not,
in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all such
Underwriters and controlling persons, which firm shall be designated in writing
by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and that all such fees
and expenses shall be reimbursed as they are incurred). A Seller shall not be
liable for any settlement of any such action effected without the written
consent of such Seller but if settled with the written consent of such Seller,
such Seller agrees to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss or liability by reason of such
settlement. Notwithstanding the immediately preceding sentence, if in any case
where the fees and expenses of counsel are at the expense of the indemnifying
party and an indemnified party shall have requested the indemnifying party to
reimburse the indemnified party for such fees and expenses of counsel as
incurred,
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such indemnifying party agrees that it shall be liable for any settlement of
any action effected without its written consent if (i) such settlement is
entered into more than ten business days after the receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall have
failed to reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding 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 settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, any person controlling the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, each Selling
Shareholder and each person, if any, controlling such Selling Shareholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Sellers to each
Underwriter but only with reference to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any preliminary
prospectus. In case any action shall be brought against the Company, any of
its directors, any such officer or any person controlling the Company or any
Selling Shareholder or any person controlling such Selling Shareholder based on
the Registration Statement, the Prospectus or any preliminary prospectus and in
respect of which indemnity may be sought against any Underwriter, the
Underwriter shall have the rights and duties given to the Sellers (except that
if any Seller shall have assumed the defense thereof) such Underwriter shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Underwriter), and the Company, its directors,
any such officers and any person controlling the Company and the Selling
Shareholders and any person controlling such Selling Shareholders shall have
the rights and duties given to the Underwriter, by Section 8(b) hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Sellers on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Sellers and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or
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judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Sellers and the Underwriters shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Sellers, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Sellers and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by the Company, the
Selling Shareholders or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares 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 to
contribute pursuant to this Section 8(d) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint.
(e) Each Seller hereby designates Complete Business Solutions, Inc.,
00000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx, a Michigan
corporation, as its authorized agent, upon which process may be served in any
action, suit or proceeding which may be instituted in any state or federal
court in the State of New York by any Underwriter or person controlling an
Underwriter asserting a claim for indemnification or contribution under or
pursuant to this Section 8, and each Seller will accept the jurisdiction of
such court in such action, and waives, to the fullest extent permitted by
applicable law, any defense based upon lack of personal jurisdiction or venue.
A copy of any such process shall be sent or given to such Seller, at the
address for notices specified in Section 13 hereof.
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9. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Shares under this Agreement are subject to
the satisfaction of each of the following conditions:
(a)All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(b)The Registration Statement shall have become effective not later
than 5:00 P.M. (and in the case of a Registration Statement filed under Rule
462(b) of the Act, not later than 10:00 p.m.), New York City time, on the date
of this Agreement or at such later date and time as you may approve in writing,
and at the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission.
(c)(i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings,
affairs or business prospects, whether or not arising in the ordinary course of
business, of the Company, (ii) since the date of the latest balance sheet
included in the Registration Statement and the Prospectus there shall not have
been any change, or any development involving a prospective material adverse
change, in the capital stock or in the long-term debt of the Company from that
set forth in the Registration Statement and Prospectus, (iii) the Company and
its subsidiaries shall have no liability or obligation, direct or contingent,
which is material to the Company and its subsidiaries, taken as a whole, other
than those reflected in the Registration Statement and the Prospectus and (iv)
on the Closing Date you shall have received a certificate dated the Closing
Date, signed by _______________ and _______________, in their capacities as the
_______________ and _________________ of the Company, confirming the matters
set forth in paragraphs (a), (b), and (c) of this Section 9.
(d)All the representations and warranties of the Selling Shareholders
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and you
shall have received a certificate to such effect, dated the Closing Date, from
each Selling Shareholder.
(e)You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of Camhy
Xxxxxxxxx & Xxxxx LLP, counsel for the Company and the Selling Shareholders, to
the effect that:
(i) the Company [and each of the domestic Subsidiaries] has been
duly incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power and
authority required to carry
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on its business as it is currently being conducted and to own, lease and
operate its properties;
(ii) the Company [and each of the domestic Subsidiaries] is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Company and the Subsidiaries, taken as a whole;
(iii) all of the outstanding shares of capital stock of, or other
ownership interests in, each of the domestic Subsidiaries have been duly and
validly authorized and issued and are fully paid and non-assessable, and are
owned by the Company, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature;
(iv) all the outstanding shares of Common Stock (including the
Shares to be sold by the Selling Shareholders) have been duly authorized and
validly issued and are fully paid, non-assessable and not subject to any
preemptive or similar rights;
(v) the Shares to be issued and sold by the Company hereunder have
been duly authorized, and when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will have been validly issued
and will be fully paid and non-assessable, and the issuance of such Shares is
not subject to any preemptive or similar rights;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and each of the Selling Shareholders and is a valid
and binding agreement of the Company and each Selling Shareholder enforceable
in accordance with its terms (except as rights to indemnity and contribution
hereunder may be limited by applicable law);
(vii) the authorized capital stock of the Company, including the
Common Stock, conforms as to legal matters to the description thereof
contained in the Prospectus;
(viii) the Registration Statement has become effective under the
Act, no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to the knowledge of such counsel, pending
before or contemplated by the Commission;
(ix) the statements under the captions "_______________",
"_______________", "_______________", "_______________", "_______________",
"_______________", and "Description of Capital Stock" in the Prospectus and
Items 14 and 15 of Part II of the Registration Statement insofar as such
statements constitute a 18 152206/0013/42094 summary of legal matters documents
or proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings;
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(x) neither the Company nor any of the domestic Subsidiaries is in
violation of its respective charter or by-laws and, to the best of such
counsel's knowledge after due inquiry, neither the Company nor either of the
Subsidiaries is in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument material to the
conduct of the business of the Company and its subsidiaries, taken as a whole,
to which the Company or either of the Subsidiaries is a party or by which it or
either of the Subsidiaries or their respective property is bound;
(xi) the execution, delivery and performance of this Agreement by
the Company and each Selling Shareholder, compliance by the Company and each
Selling Shareholder with all the provisions hereof and the consummation of the
transactions contemplated hereby will not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except as such may be required under the Act
or other securities or Blue Sky laws) and will not conflict with or constitute
a breach of any of the terms or provisions of, or a default under, the charter
or by-laws of the Company or any of its subsidiaries or the organizational
documents of any Selling Shareholder that is not an individual or any
agreement, indenture or other instrument to which the Company or any of its
subsidiaries or any Selling Shareholder is a party or by which the Company or
any of its subsidiaries or any Selling Shareholder or their respective
properties are bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company or any of its
subsidiaries or any Selling Shareholder or their respective properties;
(xii) after due inquiry, such counsel does not know of any legal or
governmental proceeding pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of their respective property is
subject which is required to be described in the Registration Statement or the
Prospectus and is not so described, or of any contract or other document which
is required to be described in the Registration Statement or the Prospectus or
is required to be filed as an exhibit to the Registration Statement which is
not described or filed as required;
(xiii) to the best of such counsel's knowledge, after due inquiry,
neither the Company nor any of its subsidiaries has violated any Environmental
Laws, nor any federal or state law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable federal or state wages and
hours laws, nor any provisions of the Employee Retirement Income Security Act
or the rules and regulations promulgated thereunder, which in each case might
result in any material adverse change in the business, prospects, financial
condition or results of operation of the Company and its subsidiaries, taken as
a whole;
(xiv) the Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities
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("permits"), including, without limitation, under any applicable Environmental
Laws, as are necessary to own, lease and operate its respective properties and
to conduct its business in the manner described in the Prospectus; to the best
of such counsel's knowledge, after due inquiry, the Company and each of its
subsidiaries has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus; and, except as described in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company or either of the
Subsidiaries;
(xv) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended;
(xvi) to the best of such counsel's knowledge, after due inquiry, no
holder of any security of the Company has any right to require registration of
shares of Common Stock or any other security of the Company;
(xvii) to the best of such counsel's knowledge, after due inquiry,
except as otherwise set forth in the Registration Statement or such as are not
material to the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, the Company
and each of the Subsidiaries has good and marketable title, free and clear of
all liens, claims, encumbrances and restrictions except liens for taxes not yet
due and payable, to all property and assets described in the Registration
Statement as being owned by it;
(xviii) to the best of such counsel's knowledge, after due inquiry,
all leases to which the Company or any of its subsidiaries is a party are
valid and binding and no default has occurred or is continuing thereunder,
which might result in any material adverse change in the business, prospects,
financial condition or results of operation of the Company and the Subsidiaries
taken as a whole, and the Company and the Subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of them is a party as
lessee with such exceptions as do not materially interfere with the use made by
the Company or such subsidiary;
(xix) (1) the Registration Statement (including any Registration
Statement filed under 462(b) of the Act, if any) and the Prospectus and any
supplement or amendment thereto (except for financial statements as to which
no opinion need be expressed) comply as to form in all material respects with
the Act, and (2) such counsel believes that (except for financial statements,
as aforesaid) the Registration Statement and the prospectus included therein
at the time the Registration Statement became effective did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and that the Prospectus, as amended or supplemented, if applicable
(except for financial
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statements, as aforesaid) does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(xx) the Custody Agreement has been duly authorized, executed and
delivered by each Selling Shareholder and is a valid and binding agreement of
such Selling Shareholder enforceable in accordance with its terms;
(xxi) each Selling Shareholder has full legal right, power and
authority, and any approval required by law (other than any approval imposed by
the applicable state securities and Blue Sky laws) to sell, assign, transfer and
deliver the Shares to be sold by him in the manner provided in this Agreement
and the Custody Agreement;
(xxii) each Selling Shareholder has good and clear title to the
certificates for the Shares to be sold by him and upon delivery thereof,
pursuant hereto and payment therefor, good and clear title will pass to the
Underwriters, severally, free of all restrictions on transfer, liens,
encumbrances, security interests and claims whatsoever; and
(xxiii) the power of attorney signed by each Selling Shareholder
appointing _________________ and ___________, or either of them, as his
attorney-in-fact to the extent set forth therein with regard to the
transactions contemplated hereby and by the Registration Statement has been
duly authorized, executed and delivered by or on behalf of each Selling
Shareholder and are valid and binding instruments of such Selling Shareholder
enforceable in accordance with its terms, and pursuant to such power of
attorney, each of the Selling Shareholders has authorized _________________ and
________________, or either of them, to execute and deliver on their behalf
this Agreement and any other document necessary or desirable in connection with
transactions contemplated hereby and to deliver the Shares to be sold by them
pursuant to this Agreement
In giving such opinion with respect to the matters covered by clause
(xvii) such counsel may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
The opinion of Camhy Xxxxxxxxx & Xxxxx LLP described in paragraph (e)
above shall be rendered to you at the request of the Company or one or more of
the Selling Shareholders, as the case may be, and shall so state therein.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of ____________________, counsel for the non-domestic Subsidiaries to the effect
that:
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(i) Each of such Subsidiaries has been duly organized and is validly
existing as a {__________} in good standing under the laws of [India];
(ii) CBSI (India) has _____ {shares} of {type of} stock authorized,
_______ of which are issued and outstanding; all necessary and proper corporate
proceedings have been taken in order to authorize validly such authorized
stock; all outstanding shares of {type of} stock have been duly and validly
issued, are fully paid and non-assessable, have been issued in compliance with
Indian law, were not issued in violation of or subject to any preemptive rights
or other rights to subscribe for or purchase any securities;
(iii) all of the outstanding shares of capital stock of, or other
ownership interests in, each of the foreign Subsidiaries have been duly and
validly authorized and issued and are fully paid and non-assessable, and are
owned by the Company, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature;
(iv) The {describe transactions contemporaneous with offering or
other material transaction} and the consummation of the transactions
contemplated hereby and by the Ancillary Agreements will not result in a breach
of, or constitute a default under, any indenture, mortgage, deed of trust,
trust {constructive or other}, loan agreement, lease, franchise, license or
other agreement or instrument to which any of the Subsidiaries is a party or by
which any of its properties may be bound, or violate any statute, judgment,
decree, order, rule or regulation known to such counsel of any court or
governmental body having jurisdiction over the Subsidiaries or any of their
properties and to the best of such counsel's knowledge, no approval,
authorization, order or consent of any court, regulatory body, administrative
agency or other governmental body is required for {describe transactions
contemporaneous with offering or other material transaction} the execution and
delivery of this Agreement, the Ancillary Agreements or the Shareholders
Agreement or the consummation by the Selling Shareholders of the transactions
contemplated herein and therein, except as have been made or obtained;
(v) The statements set forth in the Prospectus under the headings
"__________," "__________" and "__________," insofar as such statements
constitute a summary of the terms of legal matters, documents, agreements or
other instruments or governmental, regulatory or other legal proceedings, are
fair and accurate in all material respects.
In rendering such opinion, such counsel may rely as to matters of fact, on
certificates of the officers of the Subsidiaries and of governmental officials,
in which case their opinion is to state that they are so doing and that the
Underwriters are justified in 22 152206/0013/42094 relying on such opinions or
certificates and copies of said opinions or certificates are to be attached to
the opinion.
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(g)[Opinion of Immigration counsel.]
(h)You shall have received on the Closing Date an opinion, dated
the Closing Date, of Xxxxxxxx & Xxxxxx, Ltd., counsel for the Underwriters, as
to the matters referred to in clauses (v), (vi) (but only with respect to the
Company), (viii), (ix) (but only with respect to the statements under the
captions "Description of Capital Stock" and "Underwriting") and (xvii) of the
foregoing paragraph (e). In giving such opinion with respect to the matters
covered by clause (xix) such counsel may state that their opinion and belief
are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and review
and discussion of the contents thereof, but are without independent check or
verification except as specified.
(i)You shall have received a letter on and as of the Closing Date,
in form and substance satisfactory to you, from Xxxxxx Xxxxxxxx LLP, independent
public accountants, with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus and substantially in the form and substance of the letter delivered
to you by Xxxxxx Xxxxxxxx LLP on the date of this Agreement.
(j)The Company and the Selling Shareholders shall not have failed
at or prior to the Closing Date to perform or comply with any of the agreements
herein contained and required to be performed or complied with by the Company
at or prior to the Closing Date.
(k)You shall have received on the Closing Date, a certificate of
each Selling Shareholder who is not a US Person to the effect that such Selling
Shareholder is not a US Person (as defined under applicable US federal tax
legislation), which certificate may be in the form of a properly completed and
executed United States Treasury Department Form W-8 (or other applicable form
or statement specified by Treasury Department regulations in lieu thereof).
(l) You shall have received on the Closing Date a properly
completed and executed United States Treasury Department Form W-9 from each
selling shareholder.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to
the good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
10. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the later of (i) execution of this Agreement and (ii)
when
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notification of the effectiveness of the Registration Statement has been
released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Sellers if any of the following has occurred: (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or development
involving a prospective material adverse change in the condition, financial or
otherwise, of the Company and subsidiaries, taken as a whole, or the earnings,
affairs, or business prospects of the Company and its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business, which would,
in your judgment, make it impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus, (ii) any outbreak or escalation
of hostilities or other national or international calamity or crisis or change
in economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and would, in your
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market or limitation on prices
for securities on any such exchange or Nasdaq National Market, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company or any Subsidiary,
(v) the declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it or they have agreed
to purchase hereunder on such date and the aggregate number of Firm Shares or
Additional Shares, as the case may be, which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase is
not more than one-tenth of the total number of Shares to be purchased on such
date by all Underwriters, each non-defaulting Underwriter shall be obligated
severally, in the proportion which the number of Firm Shares set forth opposite
its name in Schedule I bears to the total number of Firm Shares which all the
non-defaulting Underwriters, as the case may be, have agreed to purchase, or in
such other proportion as you may specify, to purchase the Firm Shares or
Additional Shares, as the case may be, which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase on
such date; provided that in no event shall the number of Firm Shares or
Additional Shares, as the case may be, which any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 10
by an amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter.
If on the Closing Date or on an Option Closing Date, as the case may be, any
Underwriter or
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Underwriters shall fail or refuse to purchase Firm Shares, or Additional
Shares, as the case may be, and the aggregate number of Firm Shares or
Additional Shares, as the case may be, with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date by all Underwriters and arrangements satisfactory to you and the
applicable Sellers for purchase of such Shares are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter and the applicable Sellers. In any such case
which does not result in termination of this Agreement, either you or the
Sellers shall have the right to postpone the Closing Date or the applicable
Option Closing Date, as the case may be, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and the Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of any such Underwriter under this
Agreement.
11. Agreements of the Selling Shareholders. Each Selling Shareholder
severally agrees with you and the Company:
(a)To pay or to cause to be paid all transfer taxes, if any, with
respect to the Shares to be sold by such Selling Shareholder; and
(b)To take all reasonable actions in cooperation with the Company
and the Underwriters to cause the Registration Statement to become effective
at the earliest possible time, to do and perform all things to be done and
performed under this Agreement prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Shares pursuant to this Agreement.
12. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to Complete
Business Solutions, Inc., , (b) if to the Selling Shareholders, to [NAME OF
ATTORNEY-IN-FACT] c/o [ADDRESS OF ATTORNEY-IN-FACT] and (c) if to any
Underwriter or to you, to you c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Selling Shareholders, the Company, its
officers and directors and of the several Underwriters set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or by or on behalf of the Sellers, the officers or directors of
the Company or any controlling person of the Sellers, (ii) acceptance of the
Shares and payment for them hereunder and (iii) termination of this Agreement.
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If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Sellers to comply with the terms or to
fulfill any of the conditions of this Agreement, the Sellers agree to reimburse
the several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Sellers, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, wihtout reference to the rules coverning the
conflicts of laws.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Selling Shareholders and the several Underwriters.
Very truly yours,
Complete Business Solutions, Inc.
By:
_________________________________
Title:
THE SELLING SHAREHOLDERS NAMED
IN SCHEDULE II HERETO
By: ____________________________
Attorney-in-fact
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXX, XXXXX XXXXX, INCORPORATED
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: __________________________
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SCHEDULE I
Underwriters Number of Firm Shares
to be Purchased
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXX, XXXXX XXXXX,
INCORPORATED
________________________
Total
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SCHEDULE II
Selling Shareholders
Number of Firm
Name Shares Being Sold
________________________
Total
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ANNEX I
Required Shareholder Lock-Ups
30
