1
EXHIBIT 1.1
3,000,000 SHARES*
LASON, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
, 1996
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.,
as Representatives of the several Underwriters
(the "Representatives")
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Lason, Inc., a Delaware corporation (the "Company"), addresses you as
the Representatives of each of the firms and corporations listed in Schedule A
hereto (collectively, the "Underwriters") and hereby confirms its respective
agreements with the several Underwriters as follows:
1. Description of Shares. The Company proposes to issue and sell
3,000,000 shares of the Company's authorized and unissued Common Stock to the
several Underwriters (the "Firm Shares"). The Company also proposes to grant
to the Underwriters an option to purchase up to 450,000 additional shares of
the Company's Common Stock (the "Option Shares"), as provided in Section 7. As
used in this Agreement, the term "Shares" shall include the Firm Shares and the
Option Shares. All shares of Common Stock of the Company, including the
Shares, are hereinafter referred to as "Common Stock".
2. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to and agrees with each Underwriter that:
______________________
* Plus an option to purchase up to 450,000 additional shares of Common Stock
from the Company solely to cover over-allotments, if any.
2
(a) A registration statement on Form S-1 (File No.
333-09799) with respect to the Shares, including a prospectus subject to
completion, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
applicable rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") under the Act and has
been filed with the Commission; such amendments to such registration statement
and such amended prospectuses subject to completion, as may have been required
prior to the date hereof, have been similarly prepared and filed with the
Commission; and the Company will file such additional amendments to such
registration statement and such amended prospectuses subject to completion, as
may hereafter be required. Copies of such registration statement and
amendments and of each related prospectus subject to completion (the
"Preliminary Prospectuses") have been delivered to you.
If the registration statement has been declared effective under
the Act by the Commission, the Company will prepare and promptly file with the
Commission the information omitted from the registration statement pursuant to
Rule 430A(a) of the Rules and Regulations pursuant to subparagraph (1) or (4)
of Rule 424(b) of the Rules and Regulations or as part of a post-effective
amendment to the registration statement (including a final form of prospectus).
If the registration statement has not been declared effective under the Act by
the Commission, the Company will prepare and promptly file a further amendment
to the registration statement, including a final form of prospectus. The term
"Registration Statement" as used in this Agreement shall mean such registration
statement, including consolidated financial statements, schedules and exhibits
in the form in which it became or becomes, as the case may be, effective
(including, if the Company omitted information from the registration statement
pursuant to Rule 430A(a) of the Rules and Regulations, the information deemed
to be a part of the registration statement at the time it became effective
pursuant to Rule 430A(b) of the Rules and Regulations), any registration
statement filed pursuant to Rule 462(b) of the Rules and Regulations (a "Rule
462(b) Registration Statement") and, in the event of any amendment thereto
after the effective date of such registration statement, shall also mean (from
and after the effectiveness of such amendment) such registration statement as
so amended (including any Rule 462(b) Registration Statement). The term
"Prospectus" as used in this Agreement shall mean the prospectus relating to
the Shares as included in such Registration Statement at the time it becomes
effective (including, if the Company omitted information from the Registration
Statement pursuant to Rule 430A(a) of the Rules and Regulations, the
information deemed to be a part of the Registration Statement at the time it
became effective pursuant to Rule 430A(b) of the Rules and Regulations), except
that if any revised prospectus shall be provided to the Underwriters by the
Company for use in connection with the offering of the Shares that
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differs from the Prospectus on file with the Commission at the time the
registration statement became or becomes, as the case may be, effective
(whether or not such revised prospectus is required to be filed with the
Commission pursuant to Rule 424(b)(3) of the Rules and Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use.
(b) The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or instituted
proceedings for that purpose, and each such Preliminary Prospectus has
conformed in all material respects to the requirements of the Act and the Rules
and Regulations and, as of its date, has not included any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and at the time the Registration Statement became or
becomes, as the case may be, effective and at all times subsequent thereto up
to and on the Closing Date (as defined below) and on any later date on which
Option Shares are to be purchased, (i) the Registration Statement and the
Prospectus, and any amendments or supplements thereto, as of their respective
dates, contained and will contain all material information required to be
included therein by the Act and the Rules and Regulations and conformed and
will conform in all material respects to the requirements of the Act and the
Rules and Regulations, and (ii) neither the Registration Statement nor the
Prospectus, nor any amendments or supplements thereto, as of their respective
dates, included or will include any untrue statement of a material fact or
omitted or will omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that none of the
representations and warranties contained in this subparagraph shall apply to
information contained in or omitted from the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon, and in
conformity with, written information furnished to the Company by any
Underwriter through you specifically for inclusion therein.
(c) Each of the Company and its Subsidiaries (as
defined below) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation with full power and authority (corporate and other) to own, lease
and operate its properties and conduct its business as described in the
Registration Statement; except as disclosed in the Registration Statement, the
Company owns all of the outstanding capital stock of its Subsidiaries free and
clear of any pledge, lien, security interest, encumbrance, claim or equitable
interest; each of the Company and its Subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
in which the ownership or
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leasing of its properties or the conduct of its business requires such
qualification except where the failure to be so qualified or to be in good
standing would not have a material adverse effect on the condition (financial
or otherwise), earnings, operations or business of the Company and its
Subsidiaries considered as one enterprise (a "Material Adverse Effect"); each
of the Company and its Subsidiaries is in possession of and operating in
compliance with all authorizations, licenses, certificates, consents, orders
and permits from state, federal and other regulatory authorities which are
material to the conduct of the business of the Company and its Subsidiaries
considered as one enterprise, all of which are valid and in full force and
effect; each of the Company and its Subsidiaries is not in violation of its
respective charter or bylaws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, bond, debenture, note agreement or
other evidence of indebtedness, or any lease, contract, joint venture, or other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the property of the Company or any of its Subsidiaries is
bound or in violation of any law, order, rule, regulation, writ, injunction,
judgment or decree of any government, governmental agency or body or court,
domestic or foreign, except as contemplated by the Prospectus or where any such
violation or default would not have a Material Adverse Effect. The Company
does not own or control, directly or indirectly, any corporation, association
or other entity conducting material operations other than Lason Systems, Inc.,
Delaware Legal Copy, Inc., Information & Image Technology of America, Inc.,
Micro-Pro, Inc., MP Services, Inc., Great Lakes Micrographics Corporation and
National Reproductions Corp., and all references in this Agreement to
"Subsidiaries" shall be deemed to refer to the foregoing entities.
(d) The Company has full legal right, power and
authority to enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement on the part of
the Company, enforceable in accordance with its terms, except as rights to
indemnification and contribution hereunder may be limited by applicable law and
except as the enforcement hereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally, or by general
equitable principles; the performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a material breach or
violation of any of the terms and provisions of, or constitute a default under,
(i) any material indenture, mortgage, deed of trust, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness, or any material
lease, contract, joint venture or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which the property of the
Company or
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any of its Subsidiaries is bound, (ii) the charter or bylaws of the Company or
any of its Subsidiaries or (iii) any law, order, rule, regulation, writ,
injunction, judgment or decree of any government or governmental agency or body
or court, domestic or foreign, having jurisdiction over the Company or any of
its Subsidiaries or over the properties of the Company or any of its
Subsidiaries, except as contemplated by the Prospectus or where such breach or
violation would not have a Material Adverse Effect; and no consent, approval,
authorization or order of any court or governmental agency or body is required
for the consummation by the Company or any of its Subsidiaries of the
transactions herein contemplated, except such as may be required under the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or under
state or other securities or Blue Sky laws or by the National Association of
Securities Dealers, Inc. (the "NASD"), all of which have been satisfied in all
material respects.
(e) There is not any pending or, to the Company's
knowledge, threatened action, suit, claim or proceeding against the Company,
any of its Subsidiaries or any of their respective officers or directors or any
of their respective properties, assets or rights before any court or
governmental agency or body or otherwise which (i) if adversely determined
would reasonably result in any material adverse change in the condition
(financial or otherwise), earnings, operations or business of the Company and
its Subsidiaries considered as one enterprise or might materially and adversely
affect their properties, assets or rights, (ii) if adversely determined would
reasonably prevent consummation of the transactions contemplated hereby or
(iii) is required to be disclosed in the Registration Statement or Prospectus
and is not so disclosed; and there are no contracts or documents of the Company
or any of its Subsidiaries that are required to be described in the Prospectus
or be filed as exhibits to the Registration Statement by the Act or by the
Rules and Regulations which have not been accurately described in all material
respects in the Prospectus and filed as exhibits to the Registration Statement.
The contracts so described in the Prospectus are in full force and effect on
the date hereof; and neither the Company nor any of its Subsidiaries, nor, to
the Company's knowledge, any other party is in breach of or default under any
of such contracts. All relationships between the Company and its Subsidiaries
and directors, executive officers and stockholders required to be described in
the Registration Statement by the Rules and Regulations have been described in
the Registration Statement as required by the Rules and Regulations.
(f) All outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable, have been issued in compliance with all federal and state
securities laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities (other than such
preemptive rights or other rights to subscribe for or purchase securities as
were fully
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complied with or expressly waived or with respect to the violation of which the
right to make claim is barred by the applicable statute of limitations), and
the authorized and outstanding capital stock of the Company conforms in all
material respects to the statements relating thereto contained in the
Registration Statement and the Prospectus; the Shares to be purchased from the
Company hereunder have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by the
Company against payment therefor in accordance with the terms of this
Agreement, will be duly and validly issued and fully paid and nonassessable;
and no preemptive right, co-sale right, registration right, right of first
refusal or other similar right of stockholders exists with respect to any of
the Shares or the issuance and sale thereof other than those that have been
expressly waived prior to the date hereof. No further approval or
authorization of any stockholder, the Board of Directors or others is required
for the issuance and sale or transfer of the Shares except as may be required
under the Act, the Exchange Act or under state or other securities or Blue Sky
laws or the NASD. All issued and outstanding shares of capital stock of each
Subsidiary of the Company have been duly authorized and validly issued and are
fully paid and nonassessable. Except as disclosed in or contemplated by the
Prospectus and the financial statements of the Company (including the notes
thereto) included in the Prospectus, neither the Company nor any Subsidiary has
outstanding any options to purchase, or any preemptive rights or other rights
to subscribe for or to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of its capital
stock or any such options, rights, convertible securities or obligations. The
description of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted and exercised thereunder,
set forth in the Prospectus accurately and fairly presents the information
required to be shown with respect to such plans, arrangements, options and
rights.
(g) Coopers & ▇▇▇▇▇▇▇ LLP, who has examined certain
of the financial statements (together with related schedules and notes) of the
Company, the Company's predecessor, Lason Systems, Inc., a Michigan corporation
(the "Predecessor"), and certain of the Company's Subsidiaries filed with the
Commission as a part of the Registration Statement and which are included in
the Prospectus, are, to the Company's knowledge, independent accountants within
the meaning of the Act and the Rules and Regulations; the audited financial
statements of the Company, the Predecessor and certain of the Company's
Subsidiaries, together with the related schedules and notes, and the unaudited
financial information (including pro forma financial information), forming part
of the Registration Statement and the Prospectus, fairly present, on a
consolidated, pro forma condensed consolidated or individual basis, as the case
may be, the financial position, the results of operations and cash flows, the
changes in stockholders'
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equity and the other information purported to be shown therein of the Company,
the Predecessor and certain of the Company's Subsidiaries at the respective
dates and for the respective periods to which they apply; and all audited
financial statements, together with the related schedules and notes, and the
unaudited financial information (including pro forma financial information),
filed with the Commission as part of the Registration Statement, have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, and all adjustments
necessary for a fair presentation of the results for such periods have been
made. The selected and summary financial and statistical data included in the
Registration Statement present fairly the information shown therein and have
been compiled on a basis consistent with the audited financial statements
presented therein. No other financial statements or schedules are required to
be included in the Registration Statement.
(h) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus, there has
not been (i) any material adverse change in the business, properties or assets
described or referred to in the Registration Statement, or the results of
operations, condition (financial or otherwise) earnings, operations or
business, of the Company and its Subsidiaries considered as one enterprise,
(ii) any transaction that is material to the Company and its Subsidiaries
considered as one enterprise, except transactions in the ordinary course of
business, (iii) any obligation that is material to the Company and its
Subsidiaries considered as one enterprise, direct or contingent, incurred by
the Company or its Subsidiaries, except obligations incurred in the ordinary
course of business, (iv) any change in the capital stock of the Company or any
of its Subsidiaries, (v) any change in the outstanding indebtedness of the
Company or any of its Subsidiaries which is material to the Company and its
Subsidiaries considered as one enterprise or (vi) any dividend or distribution
of any kind declared, paid or made on the capital stock of the Company or any
of its Subsidiaries.
(i) Except as set forth in the Prospectus, (i) each
of the Company and its Subsidiaries has good and marketable title to all
properties and material assets described in the Prospectus as owned by it, free
and clear of any pledge, lien, security interest, encumbrance, claim or
equitable interest other than such as are not material to the business of the
Company and its Subsidiaries considered as one enterprise, (ii) the agreements
to which the Company or one of its Subsidiaries is a party described in the
Prospectus are valid agreements, enforceable by the Company and its
Subsidiaries (as applicable), except as the enforcement thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or by general equitable
principles and, to their knowledge, the other contracting party or parties
thereto
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are not in material breach or in material default under any of such agreements
and (iii) the Company and its Subsidiaries have valid and enforceable leases
for the properties described in the Prospectus as leased by them, except as
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(j) The Company and its Subsidiaries have timely
filed all necessary federal and state income and franchise tax returns and have
paid all taxes shown thereon as due, and there is no tax deficiency that has
been or, to the Company's knowledge, might reasonably be asserted against the
Company or any of its Subsidiaries that would reasonably be expected to have a
Material Adverse Effect. All tax liabilities are adequately provided for on
the books of the Company and its Subsidiaries.
(k) The Company and its Subsidiaries maintain
insurance of the types and in the amounts generally deemed adequate for their
respective businesses and consistent with insurance coverage maintained by
similar companies in similar businesses.
(l) To the Company's knowledge, no labor
disturbance by the employees of the Company or any of its Subsidiaries exists
or is imminent, and, except as provided in the Prospectus, the Company is not
aware of any existing or imminent labor disturbance by the employees of any of
its principal customers, suppliers or manufacturers, in either case, that would
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, operations or business of the
Company and its Subsidiaries considered as one enterprise. Except as provided
in the Prospectus, no collective bargaining agreement exists with any of the
Company's employees and, to the Company's knowledge, no such agreement is
imminent. There is no 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, which if adversely determined would
have a Material Adverse Effect.
(m) Except as described in the Prospectus, each of
the Company and its Subsidiaries owns or possesses adequate and enforceable
rights to use all material patents, patent rights, inventions, trade secrets,
know-how, trademarks, service marks, trade names and copyrights described or
referred to in the Prospectus as owned or used by it or which are necessary for
the conduct of its businesses as described in the Prospectus; the Company has
not received any notice of, and has no knowledge of, any infringement of or
conflict with asserted rights of others with respect to any patent, patent
rights, inventions, trade secrets, know-how, trademarks, service marks, trade
names or copyrights
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which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(n) Neither the Company nor any of its Subsidiaries
has been advised, or has reason to believe, that it is not conducting business
in compliance with all of the laws, rules and regulations of the jurisdictions
in which it is conducting business, except where failure to be so in compliance
would not have a Material Adverse Effect.
(o) The Common Stock is registered pursuant to
Section 12(g) of the Exchange Act and has been approved for quotation on the
National Association of Securities Dealers Automated Quotation National Market
System (the "NASDAQ/NMS"), subject to official notice of issuance.
(p) The Company has been advised concerning the
Investment Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations thereunder, and has in the past conducted, and intends in the
future to conduct, its affairs in such a manner as to ensure that it will not
become an "investment company" within the meaning of the 1940 Act and such
rules and regulations.
(q) Except as would not, individually or in the
aggregate, have a Material Adverse Effect, (i) neither the Company nor any of
its Subsidiaries is in violation of any federal, state, local or foreign laws
and regulations relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to wastes, toxic substances,
hazardous substances, petroleum and petroleum products ("Materials of
Environmental Concern"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern (collectively, "Environmental Laws"), which
violation includes, but is not limited to, noncompliance with any permits or
other governmental authorizations required for the operation of the business of
the Company or its Subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company or any
of its Subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that alleges
that the Company or any of its Subsidiaries is in violation of any
Environmental Laws; (ii) there is no claim, action or cause of action filed
with a court or governmental authority, no investigation with respect to which
the Company has received written notice, and no written notice by any person or
entity, alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property damages,
personal injuries, attorneys' fees or penalties
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arising out of, based on or resulting from the presence, or release into the
environment, or any Material of Environmental Concern at any location owned or
operated by the Company or any of its Subsidiaries, now or in the past
(collectively, "Environmental Claims"), pending or, to the best knowledge of
the Company, threatened against the Company or any of its Subsidiaries or, to
the best knowledge of the Company, against any person or entity whose liability
for any Environmental Claim the Company or any of its Subsidiaries has retained
or assumed either contractually or by operation of law; and (iii) to the best
knowledge of the Company, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that reasonably could result in the violation of any
Environmental Law.
(r) The Company has not taken and will not take,
directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares.
3. Purchase, Sale and Delivery of Shares. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $ per share, the
respective number of Firm Shares set forth opposite the name of such
Underwriter in Schedule A hereto (subject to adjustment as provided in Section
10).
Delivery of certificates for the Firm Shares to be purchased by
the Underwriters pursuant to this Section 3 shall be made against payment of
the purchase price therefor by the several Underwriters by wire transfer of
immediately available funds at the Chicago office of Winston & ▇▇▇▇▇▇ (or at
such other place as may be agreed upon among the Representatives and the
Company), at 11:00 A.M., local time in Chicago, Illinois, on the third (3rd)
full business day following the date of this Agreement or at such other time
and date not later than seven (7) full business days thereafter as the
Representatives and the Company may determine (or at such time and date to
which payment and delivery shall have been postponed pursuant to Section 10),
such time and date of payment and delivery being herein called the "Closing
Date".
The certificates for the Firm Shares to be so delivered will be
made available to you at such office or at such other location including,
without limitation, in New York City, as you may reasonably request for
checking at least two (2) full business days prior to the Closing Date and will
be in such names and denominations as you may request, such request to be made
at least
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three (3) full business days prior to the Closing Date. If the Representatives
so elect, delivery of the Firm Shares may be made by credit through full fast
transfer to the accounts at The Depository Trust Company designated by the
Representatives.
It is understood that you, individually and not as the
Representatives of the several Underwriters, may (but shall not be obligated
to) make payment of the purchase price on behalf of any Underwriter or
Underwriters whose payment shall not have been received by you prior to the
Closing Date for the Firm Shares to be purchased by such Underwriter or
Underwriters. Any such payment by you shall not relieve any such Underwriter
or Underwriters of any of its or their obligations hereunder.
After the Registration Statement becomes effective, the several
Underwriters intend to offer the Firm Shares to the public as set forth in the
Prospectus, but after the initial public offering (as such term is described in
Section 11) of such Firm Shares, the several Underwriters may in their
discretion vary the public offering price.
The information set forth in the last paragraph on the front
cover page and under "Underwriting" in any Preliminary Prospectus (insofar as
such information relates to the Underwriters) and in the final form of
Prospectus filed pursuant to Rule 424(b) constitutes the only information
furnished by the Underwriters to the Company for inclusion in any Preliminary
Prospectus, the Prospectus or the Registration Statement, and you, on behalf of
the respective Underwriters, represent and warrant to the Company that the
statements made therein do not include any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make such statements, in the light of the circumstances in which they were
made, not misleading.
4. Further Agreements of the Company. The Company agrees
with the several Underwriters that:
(a) The Company will use its best efforts to cause
the Registration Statement and any amendment thereof, if not effective at the
time and date that this Agreement is executed and delivered by the parties
hereto, to become effective as promptly as possible; it will notify you,
promptly after it shall receive notice thereof, of the time when the
Registration Statement or any subsequent amendment to the Registration
Statement has become effective or any supplement to the Prospectus has been
filed; if the Company omitted information from the Registration Statement at
the time it was originally declared effective in reliance upon Rule 430A(a) of
the Rules and Regulations, the Company will provide evidence reasonably
satisfactory to you that the Prospectus contains such information and has been
filed, within the time period prescribed, with the Commission pursuant to
subparagraph (1)
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or (4) of Rule 424(b) of the Rules and Regulations or as part of a
post-effective amendment to such Registration Statement as originally declared
effective which is declared effective by the Commission; if for any reason the
filing of the final form of Prospectus is required under Rule 424(b)(3) of the
Rules and Regulations, it will provide evidence reasonably satisfactory to you
that the Prospectus contains such information and has been filed with the
Commission within the time period prescribed; it will notify you promptly of
any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information;
promptly upon your request, it will prepare and file with the Commission any
amendments or supplements to the Registration Statement or Prospectus which, in
the opinion of Winston & ▇▇▇▇▇▇, counsel for the several Underwriters
("Underwriters' Counsel"), may be necessary or advisable in connection with the
distribution of the Shares by the Underwriters, unless advised by its counsel,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ (the "Company's Counsel"), that such filing is not necessary
or advisable; it will promptly prepare and file with the Commission, and
promptly notify you of the filing of, any amendments or supplements to the
Registration Statement or Prospectus which may be necessary to correct any
statements or omissions, if, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, any event shall have occurred
as a result of which the Prospectus or any other prospectus relating to the
Shares as then in effect would include 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; in
case any Underwriter is required to deliver a prospectus nine (9) months or
more after the effective date of the Registration Statement in connection with
the sale of the Shares, it will prepare promptly upon request, but at the
expense of such Underwriter, such amendment or amendments to the Registration
Statement and such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act; and it will
file no amendment or supplement to the Registration Statement or Prospectus
which shall not previously have been submitted to you a reasonable time prior
to the proposed filing thereof or to which you shall reasonably object in
writing, subject, however, to compliance with the Act and the Rules and
Regulations thereunder and the provisions of this Agreement.
(b) The Company will advise you, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceeding for that purpose;
and it will promptly use its best efforts to prevent the issuance of any stop
order or to obtain its withdrawal at the earliest possible moment if such stop
order should be issued.
-12-
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(c) The Company will use its best efforts to
qualify the Shares for offering and sale under the securities laws of such
jurisdictions as you may reasonably designate and to continue such
qualifications in effect for so long as may be reasonably required for purposes
of the distribution of the Shares, except that the Company shall not be
required in connection therewith or as a condition thereof to qualify as a
foreign corporation or to execute a general consent to service of process in
any jurisdiction or to make any undertaking with respect to the conduct of its
business. In each jurisdiction in which the Shares shall have been qualified
as provided above, the Company will make and file such statements and reports
in each year as are or may be reasonably required by the laws of such
jurisdiction.
(d) The Company has previously furnished, or will
furnish to you as soon as available, copies of the Registration Statement
(three (3) of which will be certified by the Secretary of the Company and which
will include all exhibits), each Preliminary Prospectus, the Prospectus and any
amendments or supplements to such documents, including any prospectus prepared
to permit compliance with Section 10(a)(3) of the Act, all in such quantities
as you may from time to time reasonably request.
(e) The Company will make generally available to
its stockholders as soon as practicable, but in any event not later than the
forty-fifth (45th) day following the end of the fiscal quarter first occurring
after the first anniversary of the effective date of the Registration
Statement, an earnings statement complying with the provisions of Section
11(a) of the Act and covering a twelve-month period beginning after the
effective date of the Registration Statement.
(f) During a period of five (5) years after the
date hereof, the Company will furnish to its stockholders, as soon as
practicable after the end of each respective period, annual reports (including
financial statements audited by independent certified public accountants) and
such unaudited quarterly reports of operations for each of the first three
quarters of the fiscal year as may be required by applicable law or the rules
of NASDAQ/NMS to be sent to stockholders, and will furnish to you and, upon
their request, the other several Underwriters hereunder, (i) concurrently with
furnishing such reports to its stockholders (if any), statements of operations
of the Company for each of the first three quarters in the form furnished to
the Company's stockholders; (ii) concurrently with furnishing to its
stockholders, a balance sheet of the Company as of the end of such fiscal year,
together with statements of operations, of stockholders' equity and of cash
flows of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of independent accountants; (iii) as soon as they
are available, copies of all reports (financial or other) mailed to
stockholders; (iv) as soon as they are available, copies of all reports and
financial statements publicly filed with
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the Commission, any securities exchange or the NASD; and (v) every material
press release and every material news item or article in respect of the Company
or its affairs which was released or prepared by the Company or any of its
Subsidiaries (excluding, in each case, customary product-related press releases
and articles).
(g) The Company will apply the net proceeds from
the sale of the Shares being sold by it in the manner set forth under the
caption "Use of Proceeds" in the Prospectus.
(h) The Company will maintain a transfer agent and,
if necessary under the jurisdiction of incorporation of the Company, a
registrar (which may be the same entity as the transfer agent) for its Common
Stock.
(i) The Company will file Form SR in conformity
with the requirements of the Act and the Rules and Regulations.
(j) The Company will use its best efforts to comply
with all criteria necessary to have its Common Stock quoted on the NASDAQ/NMS.
(k) If the transactions contemplated hereby are not
consummated solely by reason of any failure, refusal or inability on the part
of the Company to perform any agreement on its part to be performed hereunder
or to fulfill any condition of the Underwriters' obligations hereunder, or if
the Company shall terminate this Agreement under Section 11(a), the Company
will reimburse the several Underwriters for all out-of-pocket expenses
(including fees and disbursements of Underwriters' Counsel) incurred by the
Underwriters in investigating, preparing to market or marketing the Shares.
(l) During a period ending 180 days from the
effective date of the Registration Statement, the Company will not, without the
prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company LLC, issue, register,
sell, offer or agree to sell, or otherwise dispose of, directly or indirectly,
any shares of Common Stock, any options, rights or warrants with respect to any
shares of Common Stock or any securities convertible into, exercisable for or
exchangeable for shares of Common Stock other than (i) the sale of the Firm
Shares and the Option Shares hereunder, (ii) the grant of options with respect
to, and the issuance and registration of up to 1,000,000 shares of Common Stock
by the Company in connection with, the Company's 1995 Stock Option Plan and
(iii) the issuance and registration of up to 2,500,000 shares of Common Stock
by the Company for use as consideration in future acquisitions. In addition,
during a period ending 180 days from the effective date of the Registration
Statement, the Company will not, without the prior written consent of
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company LLC, waive any contractual restrictions on the
sale of Common Stock by the former stockholders of the Company's Subsidiaries.
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5. Expenses.
(a) The Company agrees with each Underwriter that:
(i) The Company will pay and bear all costs and
expenses in connection with the preparation, printing and filing of the
Registration Statement (including financial statements, schedules and
exhibits), Preliminary Prospectuses and the Prospectus and any amendments or
supplements thereto; the printing of this Agreement, the Agreement Among
Underwriters, the Selected Dealer Agreement, the Preliminary Blue Sky Survey
and any Supplemental Blue Sky Survey, the Underwriters' Questionnaire and Power
of Attorney, and any instruments related to any of the foregoing; the issuance
and delivery of the Shares hereunder to the several Underwriters, including
transfer taxes, if any, the cost of all certificates representing the Shares
and transfer agents' and registrars' fees; the fees and disbursements of the
Company's Counsel and any other counsel for the Company; all fees and other
charges of the Company's independent public accountants; the cost of furnishing
to the several Underwriters copies of the Registration Statement (including
appropriate exhibits), Preliminary Prospectus and the Prospectus, and any
amendments or supplements to any of the foregoing; NASD filing fees and the
cost of qualifying the Shares under the laws of such jurisdictions as you may
reasonably designate (including filing fees of Underwriters' Counsel in
connection with such NASD filing and filing fees and fees and disbursements of
Underwriters' Counsel in connection with such Blue Sky qualifications); and all
other expenses directly incurred by the Company; and
(ii) In addition to its other obligations under
Section 8(a), the Company agrees that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
described in Section 8(a), it will reimburse the Underwriters on a monthly
basis for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Company's obligation to reimburse the
Underwriters for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. To
the extent that any such interim reimbursement payment is so held to have been
improper, the Underwriters shall promptly return it to the Company together
with interest, compounded daily, determined on the basis of the prime rate (or
other commercial lending rate for borrowers of the highest credit standing)
listed from time to time in The Wall Street Journal which represents the base
rate on corporate loans posted by the substantial majority of the nation's 30
largest banks (the "Prime Rate"). Any such interim reimbursement payments
which are not made to the Underwriters within 30 days of a request for
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reimbursement shall bear interest at the Prime Rate from the date of such
request.
(b) In addition to their obligations under Section 8(b),
the Underwriters agree that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding described in Section
8(b), they will reimburse the Company on a monthly basis for all reasonable
legal or other expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Underwriters' obligation to reimburse the Company for
such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. To the extent that
any such interim reimbursement payment is so held to have been improper, the
Company shall promptly return it to the Underwriters together with interest,
compounded daily, determined on the basis of the Prime Rate. Any such interim
reimbursement payments which are not made to the Company within 30 days of a
request for reimbursement shall bear interest at the Prime Rate from the date
of such request.
(c) It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in Sections
5(a)(ii) and 5(b), including the amounts of any requested reimbursement
payments, the method of determining such amounts and the basis on which such
amounts shall be apportioned among the reimbursing parties, shall be settled by
arbitration conducted under the provisions of the Constitution and Rules of the
Board of Governors of the New York Stock Exchange, Inc. or pursuant to the Code
of Arbitration Procedure of the National Association of Securities Dealers,
Inc. Any such arbitration must be commenced by service of a written demand for
arbitration or a written notice of intention to arbitrate, therein electing the
arbitration tribunal. In the event the party demanding arbitration does not
make such designation of an arbitration tribunal in such demand or notice, then
the party responding to said demand or notice is authorized to do so. Any such
arbitration will be limited to the operation of the interim reimbursement
provisions contained in Sections 5(a)(ii) and 5(b) and will not resolve the
ultimate propriety or enforceability of the obligation to indemnify for
expenses which is created by the provisions of Sections 8(a) and 8(b).
6. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters to purchase and pay for the Shares as provided herein
shall be subject to the accuracy, as of the date hereof and the Closing Date
and any later date on which Option Shares are to be purchased, as the case may
be, of the representations and warranties of the Company herein, to the
performance by the Company of its respective obligations hereunder and to the
following additional conditions:
-16-
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(a) The Registration Statement shall have become effective
not later than 2:00 P.M., San Francisco time, on the date following the date of
this Agreement, or such later date as shall be consented to in writing by you;
and no stop order suspending the effectiveness thereof shall have been issued
and no proceedings for that purpose shall have been initiated or, to the
knowledge of the Company or any Underwriter, threatened by the Commission, and
any request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the reasonable satisfaction of Underwriters' Counsel.
(b) All corporate proceedings and other legal matters in
connection with this Agreement, the form of Registration Statement and the
Prospectus, and the registration, authorization, issue, sale and delivery of
the Shares, shall have been reasonably satisfactory to Underwriters' Counsel,
and such counsel shall have been furnished with such papers and information as
they may reasonably have requested to enable them to pass upon the matters
referred to in this Section 6.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been any change
in the condition (financial or otherwise), earnings, operations or business of
the Company and its Subsidiaries considered as one enterprise from that set
forth in the Registration Statement or Prospectus, which, in your reasonable
judgment, is material and adverse and that makes it, in your reasonable
judgment, impracticable or inadvisable to proceed with the public offering of
the Shares as contemplated by the Prospectus.
(d) You shall have received on the Closing Date and on any
later date on which Option Shares are purchased, an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
with respect to items (viii), (ix) and (x), and an opinion of Seyburn, Kahn,
Ginn, Bess, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.C. with respect to all other items, in each
case dated the Closing Date or such later date, as the case may be, addressed
to the Underwriters (with reproduced copies or signed counterparts thereof for
each of the Underwriters), to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware;
(ii) The Company and each subsidiary identified in
Exhibit 21.1 to the Registration Statement (collectively, the "Significant
Subsidiaries" and individually, a "Significant Subsidiary") have been duly
incorporated and are validly existing as corporations in good standing under
the laws of their respective jurisdictions of incorporation;
-17-
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(iii) The Company and each Significant Subsidiary
have all requisite corporate power and authority to own, lease and operate
their properties and to conduct their businesses as described in the
Prospectus;
(iv) The Company and each Significant Subsidiary are
duly qualified to do business as foreign corporations and are in good standing
in each jurisdiction, if any, in which the ownership or leasing of their
properties or the conduct of their businesses requires such qualification,
except where the failure to be so qualified or to be in good standing would not
have a Material Adverse Effect;
(v) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under the caption
"Capitalization" as of the dates stated therein; the issued and outstanding
shares of capital stock of the Company have been duly and validly authorized
and issued, are fully paid and nonassessable, and have not been issued in
violation of any preemptive right or, to such counsel's knowledge, any co-sale
right, registration right, right of first refusal or other similar right (other
than such preemptive rights or other rights to subscribe for or purchase
securities as were fully complied with or expressly waived or with respect to
the violation of which the right to make claim is barred by the applicable
statute of limitations);
(vi) The Firm Shares or the Option Shares, as the
case may be, to be issued by the Company pursuant to the terms of this
Agreement will be, upon issuance and delivery against payment therefor in
accordance with the terms hereof, duly authorized and validly issued and fully
paid and nonassessable, and have not been issued in violation of any preemptive
right or, to such counsel's knowledge, any co-sale right, registration right,
right of first refusal or other similar right and the stockholders of the
Company have no preemptive right or, to such counsel's knowledge, other rights
to purchase any of the Shares;
(vii) The Company has corporate power and authority
to enter into this Agreement and to issue, sell and deliver to the Underwriters
the Firm Shares or the Option Shares, as the case may be, to be issued and sold
by it hereunder;
(viii) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company and has been duly
executed and delivered by the Company;
(ix) The Registration Statement has become effective
under the Act, and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are currently pending or overtly
threatened under the Act;
-18-
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(x) The Registration Statement and the Prospectus,
and each amendment or supplement thereto (other than the consolidated financial
statements (including supporting schedules) and financial data derived
therefrom as to which such counsel need express no opinion) as of the effective
date of the Registration Statement, complied as to form in all material
respects with the requirements of the Act and the applicable Rules and
Regulations;
(xi) The terms and provisions of the capital stock
of the Company conform in all material respects to the description thereof
contained in the Registration Statement and Prospectus;
(xii) The information in the Prospectus under the
caption "Description of Capital Stock" to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such counsel and
accurately and fairly summarizes the matters described therein. The forms of
certificates evidencing the Common Stock complies with Delaware law;
(xiii) The description in the Registration Statement
and the Prospectus of the charter and bylaws of the Company and of statutes and
contracts are accurate and fairly present the information required to be
presented by the Act or the Rules and Regulations;
(xiv) To such counsel's knowledge, there are no
agreements, contracts, leases or documents of a character required to be
described or referred to in the Registration Statement or Prospectus or to be
filed as an exhibit to the Registration Statement which are not described or
referred to therein and filed as required;
(xv) The performance of this Agreement and the
consummation of the transactions herein contemplated (other than performance of
the Company's indemnification and contribution obligations hereunder,
concerning which no opinion need be expressed) will not (a) result in any
violation of the Company's charter or bylaws, or (b) to such counsel's
knowledge, result in the material breach or violation of any of the terms and
provisions, or constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement, bond, debenture, note agreement or other
evidence of indebtedness, or any material lease, contract, joint venture or
other agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which the property of the Company or any of its Subsidiaries
is bound, or any applicable statute, rule or regulation known to such counsel
or, to such counsel's knowledge, any order, writ or decree of any court or
governmental agency or body having jurisdiction over the Company or any of its
Subsidiaries, or over any of their properties or operations; provided, however,
that no opinion need be rendered concerning state securities or Blue Sky laws;
-19-
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(xvi) No authorization, approval or consent of any
governmental authority or agency is necessary in connection with the
consummation of the transactions herein contemplated, except such as have been
obtained under the Act or such as may be required under state or other
securities or Blue Sky laws in connection with the purchase and the
distribution of the Shares by the Underwriters;
(xvii) To such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened against the Company or any of
its Subsidiaries of a character which are required to be disclosed in the
Registration Statement or the Prospectus, by the Act or the applicable Rules
and Regulations, other than those described therein;
(xviii) To such counsel's knowledge, neither the
Company nor any of its Subsidiaries is presently in material breach of, or in
default under, any material indenture, mortgage, deed of trust, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, or any
material lease, contract, joint venture or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
property of the Company or any of its Subsidiaries is bound that is material to
the financial condition, earnings, operations, business or business prospects
of the Company and its Subsidiaries considered as one enterprise; and
(xix) To such counsel's knowledge, except as set
forth in the Registration Statement and Prospectus, no holders of Common Stock
or other securities of the Company have registration rights with respect to
securities of the Company and, except as set forth in the Registration
Statement and Prospectus, all holders of securities of the Company having
rights to registration of such shares of Common Stock, or other securities,
because of the filing of the Registration Statement by the Company have, with
respect to the offering contemplated thereby, waived such rights or such rights
have expired by reason of lapse of time following notification of the Company's
intent to file the Registration Statement, or have included securities in the
Registration Statement pursuant to the exercise of such rights.
In addition to its opinions set forth above, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
shall include in its opinion the following statements. Because the primary
purpose of its engagement was not to establish factual matters and because of
the wholly or partially nonlegal character of many determinations involved in
the preparation of the Registration Statement and the Prospectus, it is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except to the extent expressly set forth above)
and makes no representation that it has independently verified the accuracy,
completeness or fairness of such statements (except as aforesaid). However, it
met with and
-20-
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participated in conferences with representatives of the Company,
representatives of the Underwriters, Underwriters' Counsel and representatives
of Coopers & ▇▇▇▇▇▇▇ LLP, the independent accountants for the Company, during
which the contents of the Registration Statement and the Prospectus and related
matters were discussed. Based on its participation in the above-mentioned
conferences, its review of the documents described above, its understanding of
applicable law and the experience it has gained in its practice thereunder,
relying as to materiality to a large extent upon the opinions and statements of
officers of the Company, it advises the Underwriters that nothing has come to
its attention that causes it to believe that the Registration Statement (other
than the financial statements and notes thereto and supporting schedules and
other financial and statistical data derived therefrom, set forth therein or
omitted therefrom, as to which no advice is given), at the time it was declared
effective by the Commission, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus (other
than the financial statements and notes thereto and supporting schedules and
other financial and statistical data derived therefrom, set forth therein or
omitted therefrom, as to which no advice is given), as of the date of the
Prospectus included an untrue statement of a material fact or omitted 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; and the
Registration Statement and the Prospectus (other than the financial statements
and notes thereto and supporting schedules and other financial and statistical
data derived therefrom, included therein or omitted therefrom, as to which no
advice is given) as of the effective date of the Registration Statement,
appeared on their face to be appropriately responsive in all material respects
to the requirements of the Act and the Rules and Regulations.
Counsel rendering the foregoing opinion may rely as to
questions of law not involving the laws of the United States or the State of
Delaware upon opinions of local counsel (or in lieu thereof, deliver copies of
such local counsel opinions, addressed to the Underwriters, directly to the
Underwriters), and as to questions of fact upon representations or certificates
of officers of the Company, and of government officials, in which case their
opinion is to state that they are so relying and that they have no knowledge of
any material misstatement or inaccuracy in such opinions, representations or
certificate. Copies of any opinion, representation or certificate so relied
upon shall be delivered to you, as Representatives of the Underwriters, and to
Underwriters' Counsel.
(e) You shall have received on the Closing Date and on any
later date on which Option Shares are to be purchased, as the case may be, an
opinion of Winston & ▇▇▇▇▇▇, in form and substance
-21-
22
satisfactory to you, with respect to the sufficiency of all such corporate
proceedings and other legal matters relating to this Agreement and the
transactions contemplated hereby as you may reasonably require, and the Company
shall have furnished to such counsel such documents as they may have requested
for the purpose of enabling them to pass upon such matters.
(f) You shall have received on the Closing Date and on any
later date on which Option Shares are to be purchased, as the case may be, a
letter from Coopers & ▇▇▇▇▇▇▇ LLP addressed to the Company and the
Underwriters, dated the Closing Date or such later date on which Option Shares
are to be purchased, as the case may be, confirming that they are independent
accountants with respect to the Company within the meaning of the Act and the
applicable published Rules and Regulations and based upon the procedures
described in their letter delivered to you concurrently with the execution of
this Agreement (herein called the "Original Letter"), but carried out to a date
not more than three (3) business days prior to the Closing Date or such later
date on which Option Shares are to be purchased, as the case may be, (i)
confirming, to the extent true, that the statements and conclusions set forth
in the Original Letter are accurate as of the Closing Date or such later date
on which Option Shares are to be purchased, as the case may be; and (ii)
setting forth any revisions and additions to the statements and conclusions set
forth in the Original Letter which are necessary to reflect any changes in the
facts described in the Original Letter since the date of such letter, or to
reflect the availability of more recent financial statements, data or
information. The letter shall not disclose any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company and its Subsidiaries considered as one enterprise which, in your
sole judgment, makes it impracticable or inadvisable to proceed with the public
offering of the Shares as contemplated by the Prospectus. Also you shall have
received an Original Letter from Coopers & ▇▇▇▇▇▇▇ LLP addressed to or for the
use of the Underwriters setting forth their opinion with respect to their
examination of (A) the consolidated balance sheet of the Company as of December
31, 1995 and related consolidated statements of income, stockholders' equity
and cash flows for the year ended December 31, 1995, (B) the balance sheet of
the Predecessor as of December 31, 1994 and related statements of income,
stockholders' equity and cash flows for the years ended December 31, 1993 and
1994, (C) the balance sheet of Great Lakes Micrographics Corporation as of
December 31, 1995 and related statements of income, stockholders' equity and
cash flows for the year ended December 31, 1995, (D) the balance sheets of
National Reproductions Corp. as of December 31, 1994 and 1995 and related
statements of operations, stockholders' equity and cash flows for the years
ended December 31, 1994 and 1995 and (E) certain other financial statements and
financial and statistical data contained in the Registration Statement and the
Prospectus, as well as other matters agreed upon between Coopers & ▇▇▇▇▇▇▇ LLP
and you.
-22-
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(g) You shall have received on the Closing Date and on any
later date on which Option Shares are purchased, as the case may be, a
certificate of the Company, dated the Closing Date or such later date on which
Option Shares are to be purchased, as the case may be, signed on behalf of the
Company by the Chief Executive Officer and Chief Financial Officer of the
Company, to the effect that, and you shall be reasonably satisfied that:
(i) The representations and warranties of the
Company in this Agreement are true and correct as if made on and as of the
Closing Date or any later date on which Option Shares are to be purchased, as
the case may be, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date or any later date on which Option Shares are to be
purchased, as the case may be;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings for that purpose
have been instituted or are currently pending or overtly threatened under the
Act;
(iii) When the Registration Statement became
effective and at all times subsequent thereto up to the time of delivery of
such certificate, the Registration Statement and the Prospectus and any
amendments or supplements thereto contained all statements and information
required to be included therein, and neither the Registration Statement nor the
Prospectus nor any amendment or supplement thereto included an untrue statement
of a material fact or omitted to state a material fact required to be made
therein or necessary to make the statements therein, in light of the
circumstances in which made, not misleading, and, since the effective date of
the Registration Statement, there has occurred no event required to be set
forth in an amended or supplemented Prospectus which has not been so set forth;
and
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, there
has not been (A) any material adverse change in the properties or assets
described or referred to in the Registration Statement and the Prospectus or in
the condition (financial or otherwise), earnings, operations, business or
business prospects of the Company and its Subsidiaries considered as one
enterprise, (B) any transaction which is material to the Company and its
Subsidiaries considered as one enterprise, except transactions entered into in
the ordinary course of business, (C) any obligation, direct or contingent,
incurred by the Company or any of its Subsidiaries which is material to the
Company and its
-23-
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Subsidiaries considered as one enterprise, except obligations incurred in the
ordinary course of business, (D) any change in the capital stock or outstanding
indebtedness of the Company or any of its Subsidiaries which is material to the
Company and its Subsidiaries considered as one enterprise or (E) any dividend
or distribution of any kind declared, paid or made on the capital stock of the
Company or any of its Subsidiaries.
(h) The Company shall have obtained and delivered to you
prior to the date hereof a written agreement from each officer, director and
stockholder of the Company that such person will not, for a period expiring 180
days after the effective date of the Registration Statement, directly or
indirectly, offer to sell, contract to sell, sell short or otherwise sell or
dispose of any shares of Common Stock, any options or warrants to purchase any
shares of Common Stock, or any securities convertible into or exchangeable for
shares of Common Stock owned by such person or with respect to which such
person has the power of disposition otherwise than (i) as a gift or gifts,
provided the donee or donees thereof agree to be bound by this restriction or
(ii) with the prior written consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company LLC. Each
such person shall also agree and consent to the entry of stop transfer
instructions with the Company's transfer agent against the transfer of shares
of Common Stock held by such person except in compliance with the foregoing
restrictions.
(i) The Company shall have furnished to you such further
certificates and documents as you shall reasonably request (including
certificates of officers of the Company) as to the accuracy of the
representations and warranties of the Company herein, as to the performance by
the Company of its obligations hereunder and as to the other conditions
concurrent and precedent to the obligations of the Underwriters hereunder.
All such opinions, certificates, letters and documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory to Underwriters' Counsel. The Company will furnish you with such
number of conformed copies of such opinions, certificates, letters and
documents as you shall reasonably request.
7. Option Shares.
(a) On the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein solely set
forth, the Company hereby grants to the several Underwriters, for the purpose
of covering over-allotments in connection with the distribution and sale of the
Firm Shares only, a non-transferable option to purchase, at the price per share
for the Firm Shares set forth in Section 3, 450,000 Option Shares. Such option
may be exercised by the Representatives on behalf of the several Underwriters
on one occasion in whole or in part during the period of 30 days from and after
the date on which the Firm Shares are initially offered to the public, by
giving written notice to the Company. The number of Option Shares to be
purchased by each Underwriter upon the exercise of such option shall be the
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same proportion of the total number of Option Shares to be purchased by the
several Underwriters pursuant to the exercise of such option as the number of
Firm Shares purchased by such Underwriter (set forth in Schedule A hereto)
bears to the total number of Firm Shares purchased by the several Underwriters
(set forth in Schedule A hereto), adjusted by the Representatives in such
manner as to avoid fractional shares.
Delivery of certificates for the Option Shares to be purchased
by the several Underwriters pursuant to the exercise of the option granted by
this Section 7 shall be made against payment of the purchase price therefor by
the several Underwriters by wire transfer of immediately available funds. Such
delivery and payment shall take place at the Chicago office of Winston & ▇▇▇▇▇▇
or at such other place as may be agreed upon among the Representatives and the
Company (i) on the Closing Date, if written notice of the exercise of such
option is received by the Company not later than three (3) full business days
prior to the Closing Date or (ii) on a later date, not later than the third
(3rd) full business day following the date the Company receives written notice
of the exercise of such option, if such notice is not received by the Company
at least three (3) full business days prior to the Closing Date.
The certificates for the Option Shares to be so delivered will
be made available to you at such office or other location including, without
limitation, in New York City, as you may reasonably request for checking at
least two (2) full business days prior to the date of payment and delivery and
will be in such names and denominations as you may request, such request to be
made at least three (3) full days prior to such date of payment and delivery.
If the Representatives so elect, delivery of the Option Shares may be made by
credit through full fast transfer to the accounts at The Depository Trust
Company by the Representatives.
It is understood that you, individually, and not as the
Representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price on behalf of any Underwriter or Underwriters
whose check or checks shall not have been received by you prior to the date of
payment and delivery for the Option Shares to be purchased by such Underwriter
or Underwriters. Any such payment by you shall not relieve any Underwriter or
Underwriters of any of its or their obligations hereunder.
The several Underwriters intend to make an initial public
offering (as such term is described in Section 11) of the Option Shares to be
issued upon exercise of such option at the initial public offering price for
the Firm Shares set forth in Section 3, but after the initial public offering
the several Underwriters may in their discretion vary the public offering
price.
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(b) Upon exercise of any option provided for in Section
7(a), the obligations of the Underwriters to purchase such Option Shares will
be subject (as of the date hereof and as of the date of payment for such Option
Shares) to the accuracy of and compliance with the representations and
warranties of the Company herein, to the accuracy of the statements of the
Company and officers of the Company made pursuant to the provisions hereof, to
the performance by the Company of its respective obligations hereunder and to
the condition that all proceedings taken at or prior to the payment date in
connection with the sale and transfer of such Option Shares shall be reasonably
satisfactory in form and substance to you and to Underwriters' Counsel, and you
shall have been furnished with all such documents, certificates and opinions as
you may reasonably request in order to evidence the accuracy and completeness
of any of the representations, warranties or statements, the performance of any
of the covenants of the Company or the compliance with any of the conditions
herein contained.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter 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 breach of any
representation, warranty, agreement or covenant of the Company herein contained
or any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading; and agrees to
reimburse each Underwriter for any legal or other expenses reasonably incurred
by it in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company shall 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 or omission or alleged omission made in the Registration Statement,
such Preliminary Prospectus or the Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter, directly or through you,
specifically for use in the preparation thereof and, provided further, that the
indemnity agreement provided in this Section 8(a) with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any losses, claims, charges, liabilities or
litigation based upon any untrue statement or omission or alleged omission to
state therein a material fact purchased Shares, if a copy of the Prospectus in
which such untrue
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statement or alleged untrue statement or omission or alleged omission was
corrected has not been sent or given to such person within the time required by
the Act and the Rules and Regulations thereunder, unless such failure is the
result of noncompliance by the Company with Section 4(d).
The indemnity agreement in this Section 8(a) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, each
person, if any, who controls any Underwriter within the meaning of the Act.
This indemnity agreement shall be in addition to any liabilities which the
Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company against any losses, claims, damages or
liabilities, joint or several, to which the Company 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 breach of
any representation, warranty, agreement or covenant of such Underwriter herein
contained or any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances in which made, 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, directly
or through you, specifically for inclusion therein, and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action.
The indemnity agreement in this Section 8(b) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, each
officer and director of the Company, and each person, if any, who controls the
Company within the meaning of the Act. This indemnity agreement shall be in
addition to any liabilities which each Underwriter may otherwise have.
(c) Within 30 days after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof, but the omission to so notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8. In case any such
action is
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brought against any indemnified party, and it notified the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after the aforesaid notice from
such indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election to so
assume the defense of such action and approval by the indemnified party of
counsel, such approval not to be unreasonably withheld, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with appropriate
local counsel) approved by the indemnifying party, representing all the
indemnified parties under Section 8(a) or 8(b) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. In no event shall
any indemnifying party be liable in respect of any amounts paid in settlement
of any action unless the indemnifying party shall have approved the terms of
such settlement; provided, however, that such consent shall not be unreasonably
withheld.
(d) In order to provide for just and equitable contribution
in any action in which a claim for indemnification is made pursuant to and in
accordance with the provisions of this Section 8, but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 8 provides for indemnification in
such case, all the parties hereto shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that the Underwriters are responsible pro
rata
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for the portion represented by the percentage that the underwriting discount
bears to the initial public offering price, and the Company is responsible for
the remaining portion; provided, however, that (i) no Underwriter shall be
required to contribute any amount in excess of the underwriting discount
applicable to the Shares purchased by such Underwriter, and (ii) no person
guilty of a fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to a contribution from any person who is not
guilty of such fraudulent misrepresentation. This subsection (d) shall not be
operative as to any Underwriter to the extent that the Company has received
indemnity under this Section 8.
9. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties, covenants and agreements of the Company herein
or in certificates delivered pursuant hereto, and the indemnity and
contribution agreements contained in Section 8, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person, or by or on behalf of the Company or
any of its officers, directors or controlling persons, and shall survive the
delivery of the Shares to the several Underwriters hereunder or termination of
this Agreement.
10. Substitution of Underwriters. If any Underwriter or
Underwriters shall fail to take up and pay for the number of Firm Shares agreed
by such Underwriter or Underwriters to be purchased hereunder upon tender of
such Firm Shares in accordance with the terms hereof, and if the aggregate
number of Firm Shares which such defaulting Underwriter or Underwriters so
agreed but failed to purchase does not exceed 10% of the Firm Shares, the
remaining Underwriters shall be obligated, severally in proportion to their
respective commitments hereunder, to take up and pay for the Firm Shares of
such defaulting Underwriter or Underwriters.
If any Underwriter or Underwriters so default and the aggregate
number of Firm Shares which such defaulting Underwriter or Underwriters agreed
but failed to take up and pay for exceeds 10% of the Firm Shares, the remaining
Underwriters shall have the right, but shall not be obligated, to take up and
pay for (in such proportions as may be agreed upon among them) the Firm Shares
which the defaulting Underwriter or Underwriters so agreed but failed to
purchase. If such remaining Underwriters do not, at the Closing Date, take up
and pay for the Firm Shares which the defaulting Underwriter or Underwriters so
agreed but failed to purchase, the Closing Date shall be postponed for 24 hours
to allow the several Underwriters the privilege of substituting within 24 hours
(including non-business hours) another underwriter or underwriters (which may
include any non-defaulting Underwriter) satisfactory to the Company. If no
such underwriter or underwriters shall have been substituted as aforesaid by
such postponed Closing Date, the Closing Date may, at the option of the
Company, be postponed for a further 24 hours, if necessary, to allow the
Company the privilege
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of finding another underwriter or underwriters, satisfactory to you, to
purchase the Firm Shares which the defaulting Underwriter or Underwriters so
agreed but failed to purchase. If it shall be arranged for the remaining
Underwriters or substituted underwriters to take up the Firm Shares of the
defaulting Underwriter or Underwriters as provided in this Section 10, (i) the
Company shall have the right to postpone the time of delivery for a period of
not more than seven (7) full business days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees promptly to
file any amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary, and (ii) the respective number
of Firm Shares to be purchased by the remaining Underwriters and substituted
underwriters shall be taken as the basis of their underwriting obligation. If
the remaining Underwriters shall not take up and pay for all such Firm Shares
so agreed to be purchased by the defaulting Underwriter or Underwriters or
substitute another underwriter or underwriters as aforesaid and the Company
shall not find or shall not elect to seek another underwriter or underwriters
for such Firm Shares as aforesaid, then this Agreement shall terminate.
In the event of any termination of this Agreement pursuant to
the preceding paragraph of this Section 10, the Company shall not be liable to
any Underwriter (except as provided in Sections 5 and 8) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than
for some reason permitted under this Agreement, to purchase the number of Firm
Shares agreed by such Underwriter to be purchased hereunder, which Underwriter
shall remain liable to the Company and the other Underwriters for damages, if
any, resulting from such default) be liable to the Company (except to the
extent provided in Sections 5 and 8).
The term "Underwriter" in this Agreement shall include any
person substituted for an Underwriter under this Section.
11. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective at the earlier of
(i) 6:30 A.M., San Francisco time, on the first full business day following the
effective date of the Registration Statement or when executed if the
Registration Statement is then effective, or (ii) the time of the initial
public offering of any of the Shares by the Underwriters after the Registration
Statement becomes effective. The time of the initial public offering shall mean
the time of the release by you, for publication, of the first newspaper
advertisement relating to the Shares, or the time at which the Shares are first
generally offered by the Underwriters to the public by letter, telephone,
telegram or telecopy, whichever shall first occur. By giving notice as set
forth in Section 12 before
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the time this Agreement becomes effective, you, as Representatives of the
several Underwriters, or the Company, may prevent this Agreement from becoming
effective without liability of any party to any other party, except that the
Company shall remain obligated to pay costs and expenses to the extent provided
in Sections 4(k) (but only to the extent that Section 4(k) by its terms
applies), 5 and 8.
(b) You, as Representatives of the several Underwriters,
shall have the right to terminate this Agreement by giving notice as
hereinafter specified at any time at or prior to the Closing Date or on or
prior to any later date on which the Option Shares are to be purchased, as the
case may be, (i) if the Company shall have failed, refused or been unable, to
perform any agreement on its part to be performed, or because any other
condition of the Underwriters' obligations hereunder required to be fulfilled
by the Company is not fulfilled including, without limitation, any change in
the condition (financial or otherwise), earnings, operations or business of
the Company and its Subsidiaries considered as one enterprise from that set
forth in the Registration Statement or Prospectus which, in your reasonable
judgment, is material and adverse, (ii) if trading generally on the New York
Stock Exchange shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities
shall have been required on the New York Stock Exchange, by the New York Stock
Exchange or by order of the Commission or any other governmental authority
having jurisdiction, or if a banking moratorium shall have been declared by
federal or New York or California authorities, (iii) if on or prior to the
Closing Date, or on or prior to any later date on which Option Shares are to be
purchased, as the case may be, the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such character
as to interfere materially with the conduct of the business and operations of
the Company regardless of whether or not such loss shall have been insured,
(iv) if there shall have been a material adverse change in the general
political or economic conditions or financial markets in the United States as
in your reasonable judgment makes it inadvisable or impracticable to proceed
with the offering, sale and delivery of the Shares or (v) if on or prior to the
Closing Date, or on or prior to any later date on which Option Shares are to be
purchased, as the case may be, there shall have been an outbreak or escalation
of hostilities between the United States and any foreign power or of any other
insurrection or armed conflict involving the United States or the declaration
by the United States of a national emergency which, in the reasonable opinion
of the Representatives, makes it impracticable or inadvisable to offer or sell
the Shares. In the event of termination pursuant to subparagraph (i) above, the
Company shall remain obligated to pay costs and expenses pursuant to Sections
4(k), 5 and 8. Any termination pursuant to any of subparagraphs (ii) through
(v) above shall be without liability of
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any party to any other party, except as provided in Sections 5 and 8.
If you elect to prevent this Agreement from becoming effective
or to terminate this Agreement as provided in this Section 11, you shall
immediately thereafter notify the Company by telephone, telecopy or telegram,
in each case confirmed by letter. If the Company shall elect to prevent this
Agreement from becoming effective, the Company shall promptly notify you by
telephone, telecopy or telegram, in each case, confirmed by letter.
12. Notices. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing and if sent to you
shall be mailed, delivered, telegraphed (and confirmed by letter) or telecopied
(and confirmed by letter) to you c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company LLC, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier
number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇; if sent to the Company, such
notice shall be mailed, delivered, telegraphed (and confirmed by letter) or
telecopied (and confirmed by letter) to Lason, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇, Chief Executive Officer.
13. Parties. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters and the Company, and their respective
executors, administrators, successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person or corporation, other than the parties hereto and their respective
executors, administrators, successors and assigns, and the controlling persons,
officers and directors referred to in Section 8, any legal or equitable right,
remedy or claim in respect of this Agreement or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties and
their respective executors, administrators, successors and assigns and said
controlling persons and said officers and directors, and for the benefit of no
other person or corporation. No purchaser of any of the Shares from any
Underwriter shall be construed a successor or assign by reason merely of such
purchase.
In all dealings with the Company under this Agreement, you
shall act on behalf of each of the several Underwriters, and the Company shall
be entitled to act and rely upon any statement, request, notice or agreement
made or given by you jointly or by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company LLC on behalf
of you.
14. Applicable law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
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15. Counterparts. This Agreement may be signed in several
counterparts, each of which will constitute an original.
If the foregoing correctly sets forth the understanding among
the Company and the several Underwriters, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a
binding agreement among the Company and the several Underwriters.
Very truly yours,
LASON, INC.
By:___________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
Accepted as of the date
first above written:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
On their behalf and on behalf of
each of the several Underwriters
named in Schedule A hereto.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY LLC
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY GROUP, L.L.C.
By:________________________________
Authorized Signatory
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SCHEDULE A
Number of
Firm Shares
Underwriters To Be Purchased
-------------------- ---------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company LLC .............
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. ...............
_________
Total...................................... 3,000,000
=========