EXHIBIT 1.1
MANTECH INTERNATIONAL CORPORATION
6,000,000 Shares/1/
Class A Common Stock
UNDERWRITING AGREEMENT
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February [ ], 2002
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED
BB&T CAPITAL MARKETS/▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, INC.
As Representatives of the Several Underwriters
c/▇ ▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
ManTech International Corporation, a Delaware corporation ("ManTech
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Delaware") which is the successor by merger to ManTech International
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Corporation, a New Jersey corporation ("ManTech New Jersey") (ManTech Delaware
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as the legal successor to ManTech New Jersey is referred to herein as the
"Company"; references to the Company are deemed to include ManTech New Jersey as
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the predecessor to ManTech Delaware, except as the context otherwise requires),
propose to issue and sell to the underwriters named in Schedule I hereto (the
"Underwriters"), for which you are acting as representatives (the
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"Representatives"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Selling Stockholder") proposes to
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sell to the several Underwriters an aggregate of 6,000,000 shares (the "Firm
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Shares") of the Company's Class A common stock, par value $.01 per share (the
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"Class A Common Stock") of which 5,666,667 shares are to be sold by the Company
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(the "Company Firm Shares") and 333,333 shares are to be sold by the Selling
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Stockholder (the "Selling Stockholder Firm Shares"). The Company has also agreed
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to sell up to an aggregate of 516,487 shares (the "Company Additional Shares")
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of Class A Common Stock and the Selling Stockholder has also agreed to sell up
to an aggregate of 383,513 shares of Class A Common Stock (the "Selling
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Stockholder Additional Shares," and, together with the Company Additional
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Shares, the "Additional Shares") to cover over-allotments, if any. The Firm
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Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares."
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You have advised us that, subject to the terms and conditions herein
contained, you desire to purchase the Firm Shares and that you propose to make a
public offering of the Firm Shares as soon as you deem advisable after the
Registration Statement referred to below becomes effective.
The terms that follow, when used in this Agreement, shall have the meanings
indicated. "Preliminary Prospectus" shall mean each prospectus subject to
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completion included in the
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/1/ Plus an option to purchase from the Compnay and the Selling Stockholder up
to 900,000 Additional Shares to cover over-allotments.
Company's Registration Statement on Form S-1 referred to in Section
1(a)(i) below and includes each preliminary prospectus relating to the Shares
which has heretofore been furnished to the Underwriters and dealers for
distribution and use. "Registration Statement" shall mean the registration
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statement referred to in Section 1(a)(i) below, including all exhibits, as
amended at the Representation Date (as defined in Section 1(a) hereof) (or, if
not effective at the Representation Date, in the form in which it shall become
effective), all financial statements and schedules thereto and, if any
post-effective amendment thereto becomes effective prior to any Closing Date (as
defined in Section 3 hereof), shall also mean such registration statement as so
amended. The term "Registration Statement" shall include Rule 430A Information
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(as defined herein) deemed to be included therein on the date the registration
statement becomes effective (the "Effective Date") as provided by Rule 430A (as
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defined below) and also any registration statement filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"). "Exchange Act" shall
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mean the Securities Exchange Act of 1934, as amended, and "Exchange Act Rules
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and Regulations" shall mean the rules and regulations of the Securities and
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Exchange Commission (the "Commission") thereunder. "Prospectus" shall mean the
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prospectus first filed with the Commission pursuant to Rule 424(b) under the
Act, and the prospectus included in the Registration Statement at the time it
becomes effective. "Rule 158," "Rule 424," "Rule 434" and "Rule 430A" refer to
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such rules under the Act (the rules and regulations under the Act, the "Act
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Regulations"), and "Rule 430A Information" means information with respect to the
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Shares and the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. For purposes of the
representations and warranties contained herein, to the extent reference is made
to the Prospectus and at the relevant time the Prospectus is not yet in
existence, such reference shall be deemed to be to the most recent Preliminary
Prospectus. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or Preliminary Prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval system ("▇▇▇▇▇").
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1. Representations and Warranties of the Company.
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(a) The Company represents and warrants to, and agrees with, each of
the Underwriters as of the date hereof (such date being referred to as the
"Representation Date"), as follows:
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(i) The Company has satisfied the conditions for use of
Form S-1 under the Act, as set forth in the general instructions thereto, and
has filed with the Commission a registration statement (Registration
No. 333-73946) on such form, including a Preliminary Prospectus, for the
registration under the Act of the offering and sale of the Shares (the
"Offering"). The Company has filed one or more amendments thereto, including to
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the related Preliminary Prospectus, each of which has previously been furnished
to the Representatives. After the execution of this Agreement, the Company will
file with the Commission either (A) prior to effectiveness of such registration
statement, a further amendment to such registration statement (including a form
of prospectus), a copy of which amendment has been furnished to and approved by
the Representatives prior to the execution of this Agreement, or (B) after
effectiveness of such registration statement, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no
amendment shall have been filed, in such registration statement) in accordance
with Rules 430A and 424(b) of the Act Regulations and as
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have been provided to and approved by the Representatives prior to execution
of this Agreement. No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(ii) Neither the Commission nor any "blue sky" or securities
authority of any jurisdiction in which the Shares have been offered has issued
any order preventing or suspending the use of any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto. On the Effective Date, the
Registration Statement did, and when the Prospectus is first filed (if required)
in accordance with Rule 424(b) and on each Closing Date, the Prospectus will,
comply with the applicable requirements of the Act and the Act Regulations; on
the Effective Date, the Registration Statement did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date if not filed pursuant to Rule 424(b), and on
the date of any filing pursuant to Rule 424(b) and each Closing Date, the
Prospectus did not and will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and each Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with the Offering will, at the time of such
delivery, be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T under the Act. Notwithstanding anything to the contrary in this
Agreement, the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, any
Preliminary Prospectus or the Prospectus in accordance with information provided
in writing to the Company by or on behalf of the Underwriters through the
Representatives expressly for use in any Preliminary Prospectus, the
Registration Statement or the Prospectus, and the Company agrees that the only
information provided in writing by or on behalf of Underwriters to the Company
expressly for use in any Preliminary Prospectus, the Registration Statement or
the Prospectus is (1) other than the information contained in the last paragraph
of the section set forth under the caption "Underwriting," that information
contained in the section set forth under the caption "Underwriting" in the
Prospectus, which does not describe the terms of this Agreement, and (2) that
information on the cover page of the Prospectus stating that the Underwriters
expect to deliver the Shares to purchasers on or about ______, 2002.
(iii) The Company has been duly organized and is validly
existing and in good standing under the laws of the State of Delaware, with all
requisite power (corporate and other) and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to conduct its business and
is in good standing in each jurisdiction or place where the nature or location
of its properties (owned, leased or managed) or the conduct of its business
requires such qualification, except where the failure so to qualify would not,
individually or in the aggregate, have an adverse effect on the condition
(financial or other), business, properties, assets, rights, operations,
or results of operations of the Company or any of the Subsidiaries (as
hereinafter defined) that is or would be, material to the Company and the
Subsidiaries, taken as a whole, whether or not occurring in the ordinary course
of business (a "Material Adverse Effect").
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(iv) The only subsidiaries (as defined in Rule 405 under
the Act) of the Company are the subsidiaries listed on Schedule 1(a)(iv) to this
Agreement (individually, a
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"Subsidiary" and collectively, the "Subsidiaries"). Each of the Subsidiaries is
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a corporation or other entity duly organized, validly existing and in good
standing in the jurisdiction of its incorporation with all requisite power
(corporate or other) and authority to own, lease, manage and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to conduct its business and
is in good standing in each jurisdiction or place where the nature or location
of its properties (owned, leased or managed) or the conduct of its business
requires such qualification, except where the failure to so qualify would not,
individually or in the aggregate, have a Material Adverse Effect.
(v) Each of the Company and each Subsidiary possesses all
authorizations, approvals, orders, licenses, certificates, franchises and
permits of and from, and has made all declarations and filings with, all
regulatory or governmental officials, bodies and tribunals ("Permits") that are
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material to the ownership, leasing, management or operation of their respective
properties and to the conduct of the business of the Company and its
Subsidiaries as described in the Registration Statement and the Prospectus, and
none of the Company or any of the Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Permits.
Except as described in the Registration Statement and Prospectus, each of the
Company and each Subsidiary has fulfilled and performed all its current material
obligations with respect to such Permits and no event has occurred that allows,
or after notice or lapse of time, or both, would allow, revocation or
termination thereof or result in any other material impairment of the rights of
the holder of any such Permit and such Permits contain no restrictions that are
materially burdensome to the Company or any of the Subsidiaries. The Company and
each of the Subsidiaries are, in all material respects, in compliance with all
federal, state, local and foreign laws, rules, regulations, orders and consents
of any governmental agency or body or court and, to the knowledge of the
Company, except as set forth in the Registration Statement and Prospectus, no
prospective change in any such federal, state, local or foreign laws, rules,
regulations, orders or consents has been adopted or is proposed which, when made
effective, would have a Material Adverse Effect. The property and business of
the Company and the Subsidiaries conform to the descriptions thereof contained
in the Registration Statement and the Prospectus.
(vi) All of the Company's issued and outstanding capital
stock has been duly authorized, validly issued and is fully paid and
nonassessable, and the Company's outstanding classes of capital stock,
including, without limitation, the Class A Common Stock, and the capitalization
(authorized and outstanding) of the Company conform in all material respects to
the descriptions thereof and the statements made with respect thereto in the
Registration Statement and the Prospectus as of the date set forth therein under
"Capitalization" and "Description of Capital Stock, Certificate of Incorporation
and Bylaws." None of the issued and outstanding shares of the Company's capital
stock including, without limitation, the Class A Common Stock, have been issued
in violation of any preemptive or other rights to subscribe for or purchase
shares of capital stock of the Company. Except as set forth on Schedule
1(a)(vi), there are no outstanding securities convertible into or exchangeable
for, and no outstanding options, warrants or other rights to purchase, any
shares of the capital stock of the Company, nor any agreements or commitments to
issue any of the same, and there are no preemptive or other rights to subscribe
for or to purchase, and no restrictions upon the voting or transfer of, any
capital stock of the Company pursuant to the Company's certificate of
incorporation or bylaws or any agreement or other instrument to which the
Company is a party. All offers and sales of the
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Company's capital stock prior to the date hereof were at all relevant times
duly registered or exempt from the registration requirements of the Act, and
were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky laws.
The form of certificates for the Shares complies with the corporate laws of the
State of Delaware.
(vii) All the outstanding shares of capital stock or other
equity interests of each Subsidiary have been duly authorized and validly issued
and are fully paid and nonassessable, and, except as set forth on Schedule
1(a)(vii), all outstanding shares of capital stock and other equity interests of
such Subsidiaries are owned of record and beneficially by the Company, either
directly or through one of the other Subsidiaries, free and clear of any
security interests, liens, encumbrances, equities or other claims. Except as set
forth on Schedule 1(a)(vii), there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or exchangeable for, any
shares of capital stock or other equity interest in any Subsidiary.
(viii) Except as set forth on Schedule 1(a)(viii)(A), each of
the Company and each Subsidiary has good and marketable title to, and is
possessed of, each property, right, interest or estate constituting the
properties and assets described in the Registration Statement and the Prospectus
as owned by it or reflected in the Financial Statements (as defined below), free
and clear of all liens, charges, security interests, pledges, encumbrances and
restrictions and other claims, except such as are described in the Registration
Statement and the Prospectus or such as are not burdensome and do not interfere
with the use or proposed use of the property or the conduct of the business of
the Company or any Subsidiary in a manner that is or would be material to the
business of the Company and the Subsidiaries taken as a whole. The leases
identified on Schedule 1(a)(viii)(B) (the "Leases") are the only leases to which
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the Company or any Subsidiary is a party that are material to the conduct of the
business of the Company and its Subsidiaries as described in the Registration
Statement and the Prospectus. Each of the Leases is valid, subsisting and
enforceable and no event has occurred which, with the passage of time or the
giving of notice or both, would cause a material breach of, or default under,
any such Lease. Each of the Leases to which the Company or any Subsidiary is a
party is substantially of the same character and has terms no more materially
burdensome or disadvantageous to the Company or such Subsidiary than those
contained in the leases made available to the Representatives in connection with
their legal due diligence review of the Company and its Subsidiaries.
(ix) No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution with respect to such Subsidiary's capital stock or other equity
interests to the Company or a Subsidiary, as the case may be, from repaying to
the Company or a Subsidiary any loans or advances to such Subsidiary from the
Company or a Subsidiary or from transferring any of such Subsidiary's property
or assets to the Company or any Subsidiary, except as described in the
Registration Statement, the Prospectus and that certain Business Loan and
Security Agreement with Citizens Bank of Pennsylvania, PNC Bank N.A., Branch
Banking and Trust Company of Virginia and Chevy Chase Bank, F.S.B.
(x) The Company has all corporate power, authority,
authorizations, approvals, orders, licenses, certificates and permits to (i)
enter into this Agreement and to carry
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out the provisions and conditions hereof, including, but not limited to, the
issuance and delivery of the Shares to the Underwriters as provided herein and
(ii) perform the transactions contemplated by the Registration Statement and the
Prospectus under "Transactions Prior to the Offering - Reincorporation,
Recapitalization and Stock Split". This Agreement has been duly and validly
authorized by the Company and duly executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company. The
transactions contemplated by the Registration Statement and the Prospectus under
"Transactions Prior to the Offering - Reincorporation, Recapitalization and
Stock Split" have been duly and validly authorized by each of ManTech New Jersey
and ManTech Delaware.
(xi) The Company and each Subsidiary owns, or possesses
adequate rights to use, all patents, patent rights, licenses, inventions,
trademarks, service marks, trade names, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information or procedures) and other rights necessary for the conduct of its
business as described in the Registration Statement and the Prospectus, and
except as described in the Registration Statement and the Prospectus, none of
the Company or any of the Subsidiaries has received a notice, or knows of any
basis, of any infringement or other conflict with the asserted rights of others
in any such respect that could reasonably be expected to have a Material Adverse
Effect.
(xii) The Shares (A) to be issued and sold by the Company
have been duly and validly authorized for issuance by the Company and the
Company has the corporate power and authority to issue, sell and deliver the
Company Firm Shares and the Company Additional Shares to the Underwriters and
(B) to be sold by the Selling Stockholder to the Underwriters have been duly
authorized and are validly issued, fully paid and non-assessable; and when the
Company Firm Shares and the Company Additional Shares are issued and delivered
and when the Selling Stockholder Firm Shares and the Selling Stockholder
Additional Shares are delivered against payment therefor as provided by this
Agreement, the Company Firm Shares and the Company Additional Shares and the
Selling Stockholder Firm Shares and the Selling Stockholder Additional Shares
will be validly issued, fully paid and nonassessable, and the issuance of such
Company Firm Shares and the Company Additional Shares and the Selling
Stockholder Firm Shares and the Selling Stockholder Additional Shares will not
be subject to any preemptive or similar rights. All corporate action required to
be taken by the stockholders or the Board of Directors of the Company for the
authorization, issuance and sale of the Company Firm Shares and the Company
Additional Shares has been duly and validly taken. The Company Firm Shares,
Company Additional Shares, Selling Stockholder Firm Shares and Selling
Stockholder Additional Shares conform in all material respects to the
description of the Class A Common Stock set forth in the Registration Statement
and the Prospectus under the caption "Description of Capital Stock, Certificate
of Incorporation and Bylaws."
(xiii) To the Company's knowledge, each of Deloitte & Touche
LLP and PricewaterhouseCoopers LLP, whose reports are included in the
Registration Statement and who has certified certain of the Financial
Statements, are independent certified public accountants with respect to the
Company and the Subsidiaries, under the meaning of and as required by the Act
and the Act Regulations.
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(xiv) The consolidated financial statements and related
schedules and notes included in the Registration Statement and the Prospectus
(the "Financial Statements") present fairly the financial position of the
Company and the Subsidiaries, on the basis stated in the Registration Statement,
as of the respective dates thereof and the results of operations and cash flows
of the Company and the Subsidiaries, for the respective periods covered thereby,
all in conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as otherwise
disclosed in the Registration Statement and the Prospectus and all adjustments
necessary for a fair presentation of results for such periods have been made.
The summary consolidated financial data, the selected consolidated financial
information and the quarterly consolidated financial data included under the
captions "Summary Financial Data," "Selected Financial Data" and "Quarterly
Results of Operations," respectively, in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with that
of the audited consolidated financial statements of the Company included
therein. The backlog and GSA Schedule Contract Value data included in the
Registration Statement and the Prospectus are complete and accurate in all
material respects and present fairly, in all material respects, the information
shown therein; the assumptions used in the preparation of the backlog and GSA
Schedule Contract Value data included in the Registration Statement and
Prospectus are reasonable and the adjustments used therein are appropriate to
give effect to the transactions or circumstances referred to therein. No other
financial statements, schedules or data of the Company and its Subsidiaries are
required by the Act or the Act Regulations to be included or incorporated by
reference in the Registration Statement or Prospectus.
(xv) The Company and each Subsidiary maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (C) access to assets is
permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xvi) The Company and each Subsidiary maintains insurance
issued by insurers of nationally recognized financial responsibility and
covering its properties, operations, personnel and businesses. Such insurance
insures against such losses and risks and in such amounts as are prudent and
customary in the businesses in which the Company and its Subsidiaries are
engaged. None of the Company or any Subsidiary has been refused any insurance
coverage sought or applied for; and none of the Company or any Subsidiary has
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers, as may be necessary to continue its business at a cost that
could not reasonably be expected to have a Material Adverse Effect. All such
insurance is outstanding and duly in force on the date hereof.
(xvii) Except as set forth in the Registration Statement and
the Prospectus, the Company and the Subsidiaries are in compliance with all
[material] federal, state, local or foreign laws or regulations relating to
pollution or protection of human health and safety, the environment or toxic
substances or wastes, pollutants or contaminants ("Environmental
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Laws"). Except as set forth in the Registration Statement and the
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Prospectus, none of the Company or any of the Subsidiaries has authorized,
conducted or has knowledge of the generation, transportation, storage, use,
treatment, disposal or release of any hazardous substance, hazardous waste,
hazardous material, hazardous constituent, toxic substance, pollutant,
contaminant, petroleum product, natural gas, liquefied gas or synthetic gas,
defined or regulated under any Environmental Law on, in or under any property in
violation of any applicable law, [other than such that would not have a Material
Adverse Effect.] Except as set forth on Schedule 1(a)(xvii) and in the
Registration Statement and the Prospectus, there is no pending or, to the
Company's knowledge, threatened claim, action, litigation or any administrative
agency proceeding involving the Company or any of the Subsidiaries or their
respective properties, nor has the Company or any of the Subsidiaries received
any written notice, or any oral notice to any executive officer of the Company
or any other employee responsible for receipt of any such notice, from any
governmental entity or third party, that (A) alleges a violation of any
Environmental Laws by the Company or any of the Subsidiaries or any person or
entity whose liability for a violation of an Environmental Law the Company or
any Subsidiary has retained or assumed either contractually or by operation of
law; (B) alleges the Company or any of the Subsidiaries is a liable party under
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. ss. 9601 et seq., or any state superfund law; (C) alleges possible
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contamination of the environment by the Company or any of the Subsidiaries; or
(D) alleges possible contamination of any of the Company's or the Subsidiaries'
properties.
(xviii) Each of the Company and each Subsidiary (A) is in
compliance, in all material respects, with any and all applicable foreign,
federal, state and local laws, rules, regulations, treaties, statutes and codes
promulgated by any and all governmental authorities (including pursuant to the
Occupational Health and Safety Act) relating to the protection of human health
and safety in the workplace ("Occupational Laws"); (B) has received all material
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permits, licenses or other approvals required of it under applicable
Occupational Laws to conduct its business as currently conducted; and (C) is in
compliance, in all material respects, with all terms and conditions of such
permit, license or approval, and the Company does not have knowledge of any
facts, circumstances or developments relating to its operations or cost
accounting practices that could reasonably be expected to form the basis for or
give rise to such actions, suits, investigations or proceedings. No action,
proceeding, revocation proceeding, writ, injunction or claim is pending or, to
the Company's knowledge, threatened against the Company or any Subsidiary
relating to Occupational Laws.
(xix) There is (A) no material unfair labor practice
complaint pending against the Company or, to the Company's knowledge, threatened
against it before the National Labor Relations Board or any state or local labor
relations board, and no material grievance or arbitration proceeding arising out
of or under any collective bargaining agreement is so pending against the
Company or, to its knowledge, threatened against it, (B) no labor dispute in
which the Company is involved nor is any labor dispute imminent, other than
routine disciplinary and grievance matters, and (C) no union representation
question existing with respect to the employees of the Company and no union
organizing activities are taking place. Except as set forth on Schedule
1(a)(xix), the Company has not received written notice that (i) any executive,
key employee or significant group of employees of the Company plans to terminate
employment with the Company or (ii) any such executive or key employee is
subject to any noncompete,
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nondisclosure, confidentiality, employment, consulting or similar
agreement that would be violated by the present or proposed business activities
of the Company.
(xx) Neither the Company nor any of the Subsidiaries is in
violation of its respective charter or bylaws or other organizational documents.
Neither the Company nor any Subsidiary is, nor with the passage of time or the
giving of notice or both would be, in violation of any federal, state, local or
foreign law, statute, ordinance, administrative or governmental rule, regulation
or code applicable to the Company or any of the Subsidiaries, including, without
limitation, the Federal Acquisitions Regulations and supplements and the Truth
in Negotiations Act, or of any judgment, order or decree of any court or
governmental agency or body or of any arbitrator having jurisdiction over the
Company or any of the Subsidiaries, or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any mortgage, loan agreement, note, bond, debenture, credit
agreement or any other evidence of indebtedness or in any agreement, contract,
indenture, lease, deed of trust or other instrument to which the Company or any
of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound, or to which any of the property or assets of the Company
or any of the Subsidiaries is subject, other than (i) as described in the
Registration Statement and the Prospectus, or (ii) any violation of, or default
with respect to, any of the foregoing that would not have a Material Adverse
Effect. The Company has fully satisfied the judgment entered against it in the
civil litigation captioned Boston Properties Limited Partnership vs. Global
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Insync, Inc. and ManTech International Corporation.
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(xxi) There is no legal or governmental action, suit,
investigation or proceeding before or by any court, arbitrator or governmental
agency or body pending or, to the Company's knowledge, threatened, against the
Company or any of the Subsidiaries, or to which any of their respective
properties, officers or personnel is subject, nor does the Company have
knowledge of any facts, circumstances or developments relating to its or its
Subsidiaries' operations or cost accounting practices that could reasonably be
expected to form the basis for or give rise to such actions, suits,
investigations or proceedings (A) that are required to be described in the
Registration Statement or the Prospectus but are not described as required, (B)
that, if adversely determined, could reasonably be expected to have a Material
Adverse Effect, (C) that could prevent or adversely affect the transactions
contemplated by this Agreement or (D) that could result in the suspension of the
effectiveness of the Registration Statement and/or prevent or suspend the use of
the Preliminary Prospectus or Prospectus in any jurisdiction. The Company is not
a party to or subject to the provisions of any injunction, judgment, decree or
order of any court, regulatory body or other governmental agency or body, other
than (x) as described in the Registration Statement or Prospectus or (y) such
judgments that would not have a Material Adverse Effect. Neither the Company nor
any of its Subsidiaries nor any of their respective directors or officers has
been subject to any investigations or proceedings by the Securities and Exchange
Commission.
(xxii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) none of the Company or any of the Subsidiaries (1)
has issued or granted any securities or interests or rights to acquire capital
stock other than in connection with the exercise of any outstanding options or
warrants which are reflected in the Registration Statement and the Prospectus,
9
(2) incurred any material liability or obligation, direct, indirect or
contingent, other than liabilities and contingencies which were incurred in the
ordinary course of business, (3) entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, (4) entered into any transaction with an
affiliate of the Company (as the term "affiliate" is defined in Rule 405
promulgated by the Commission pursuant to the Act), which would otherwise be
required to be disclosed in the Registration Statement and the Prospectus or (5)
declared or paid any dividend on its capital stock or made any other
distribution to its equity holders, (B) there has not been any material change
in the capital stock or other equity interests, or material increase in the
short-term debt or long-term debt, of the Company or any of the Subsidiaries and
(C) there has been no change or development with respect to the condition
(financial or otherwise), business, properties, assets, rights, operations,
management, net worth or results of operations of the Company or any of the
Subsidiaries that could reasonably be expected to have a Material Adverse
Effect.
(xxiii) Neither the execution, delivery or performance of this
Agreement, the offer, issuance, sale or delivery of the Shares, nor the
consummation of the other transactions contemplated hereby and by the
Registration Statement and the Prospectus including, without limitation, the
transactions described under "Transactions Prior to the Offering -
Reincorporation, Recapitalization and Stock Split" (A) requires the consent,
approval, authorization or order of or provision by the Company to any court or
governmental agency or body applicable to the Company or any Subsidiary, except
such as have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters or such as may be required by the
National Association of Securities Dealers, Inc. (the "NASD") and such other
----
approvals as have been obtained, (B) will conflict with, result in a breach or
violation of, or constitute a default under the terms of any agreement,
contract, indenture, loan agreement, note, lease, deed of trust or other
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound, (C) will
conflict with or violate any provision of the charter, bylaws or other
organizational documents of the Company or any Subsidiary, (D) will result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of the Subsidiaries or an acceleration of
indebtedness pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject, or (E) will conflict with or
violate any federal, state, local or foreign law, statute or regulation, or any
judgment, order, consent, decree or memorandum of understanding applicable to
the Company or any Subsidiary of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the Company or
any of the Subsidiaries or their respective properties.
(xxiv) The Company has not distributed and, prior to the
later to occur of the Closing Date or completion of the distribution of the
Shares, will not distribute without the prior consent of Jefferies & Company,
Inc. ("Jefferies") any offering material in connection with the Offering other
---------
than the Registration Statement, any Preliminary Prospectus, the Prospectus or
other materials, if any, permitted by the Act and the Act Regulations and the
use of which has been approved in advance by Jefferies.
10
(xxv) None of the Company or any Subsidiary nor, to the
Company's knowledge, any officer, director, employee or agent of the Company or
any Subsidiary has made any payment of funds of the Company or any Subsidiary,
or received or retained any funds, in violation of any law, rule or regulation,
or which payment, receipt or retention of funds is of a character required to be
disclosed in the Registration Statement or the Prospectus.
(xxvi) The Company (including all predecessors of the Company)
and each of the Subsidiaries have filed (or have obtained extensions thereto)
all federal, state, local and foreign tax returns that are required to be filed
(other than returns with respect to which failure to so file could not be
expected to have a Material Adverse Effect), which returns are complete and
correct in all material respects, and have paid all taxes shown on such returns
and all assessments received by them with respect thereto to the extent that the
same have become due, except those taxes that are being contested or protested
in good faith by the Company or its Subsidiaries and as to which any reserves
required under generally accepted accounting principles have been established;
and there is no tax deficiency that has been or, to the knowledge of the
Company, could reasonably be expected to be asserted or threatened against the
Company or any Subsidiary or any of their respective assets or properties which
could reasonably be expected to have a Material Adverse Effect including,
without limitation, arising in connection with the matters described in the
Registration Statement and the Prospectus under "Transactions Prior to the
Offering - Termination of Personal Service Corporation Status.".
(xxvii) Except for the shares of capital stock or other equity
interests of each of the Subsidiaries, neither the Company nor any of the
Subsidiaries owns any share of stock or any other securities of any corporation
or has any equity interest in any firm, partnership, association, limited
liability company, joint venture or other entity other than as reflected in the
consolidated financial statements included in the Registration Statement and the
Prospectus.
(xxviii) No holder of any security of the Company has the right
(other than a right which has been waived in writing or complied with) to have
any security owned by such holder included in the Registration Statement and,
except as described in the Registration Statement and the Prospectus, no holder
of any security of the Company has the right to demand registration of any
security owned by such holder during the period ending 12 months after the date
of the Prospectus.
(xxix) Neither the Company nor any Subsidiary or their
respective officers, directors, employees or agents on behalf of the Company or
any Subsidiary have taken , directly or indirectly, (A) any action designed to
cause or to result in, or that has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares, or (B)
since the filing of the Registration Statement (1) sold, bid for, purchased or
paid anyone any compensation for soliciting purchases of the Shares or (2) paid
or agreed to pay any person any compensation for soliciting another to purchase
any securities of the Company.
(xxx) As of the date of the Prospectus, neither the Company
nor any of the Subsidiaries is currently planning any probable acquisitions for
which disclosure of pro forma financial information would be required by the Act
or the Act Regulations.
11
(xxxi) The Class A Common Stock to be sold by the Company has
been approved for quotation by the Nasdaq National Market upon official notice
of issuance.
(xxxii) Neither the Company nor any Subsidiary is, and, upon
consummation of the Offering contemplated by the Prospectus, the Company will
not be, an "investment company" within the meaning of the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission thereunder,
and is not subject to registration under such act.
(xxxiii) To the Company's knowledge, no officer, director or
beneficial owner of 5% or more of the Class A Common Stock of the Company has
any affiliation or association with the NASD or any member thereof.
(xxxiv) There are no contracts, agreements or other documents
which are required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the Act Regulations which have not been
described in the Prospectus or filed as exhibits to the Registration Statement
as required by the Act Regulations. The contracts so described or otherwise
described in the Prospectus or filed as exhibits to the Registration Statement
are in full force and effect on the date hereof, and neither the Company or any
Subsidiary nor, to the Company's knowledge, any other party is in material
breach of or default under any of such contracts. The Company has not received
any written notice of such default or breach. The descriptions of such contracts
in the Prospectus and the Registration Statement are true summaries thereof and
fairly present, in all material respects, the information purported to be
summarized. All such agreements to which the Company or any of its Subsidiaries
is a party have been duly authorized, executed and delivered by the Company or a
Subsidiary, constitute valid and binding agreements of the Company or a
Subsidiary, and are enforceable against the Company or a Subsidiary in
accordance with the terms thereof, except as the enforcement thereof 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.
(xxxv) No relationship, direct or indirect, exists between or
among the Company or any Subsidiary on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any Subsidiary
(or any partner, affiliate or associate of any of the foregoing persons or
entities) on the other hand, which is required to be described in the Prospectus
which is not so described.
(xxxvi) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
-----
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company would have any liability; the Company has not incurred and
does not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and each "pension plan"
----
for which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified
12
in all material respects and nothing has occurred, whether by action or
by failure to act, which would cause the loss of such qualification.
(xxxvii) There are no claims, payments, issuances, arrangements
or understandings, whether oral or written, for services in the nature of a
finder's, consulting or origination fee with respect to the sale of the Shares
hereunder or any other arrangements, agreements, understandings, payments or
issuances with respect to the Company or any Subsidiary, or any of their
respective officers, directors, stockholders, partners, employees or affiliates
on behalf of the Company or any Subsidiary that may affect the Underwriter's
compensation, as determined by the NASD, other than as described in the
Prospectus.
(xxxviii) The Company has obtained written agreements and
delivered such agreements to the Representatives as of the date hereof ("Lock-Up
-------
Agreements") to the effect and in substantially the form attached hereto as
-----------
Schedule 1(a)(xxxviii) from each of its directors, director nominees, executive
officers, and stockholders.
(xxxix) The increased level of general and administrative
expenses that the Company will incur as a function of the transactions
contemplated by this Agreement and the Registration Statement and Prospectus and
the Company's being subject to the periodic reporting requirements of the
Exchange Act will not materially adversely affect the Company's ability to
obtain and enter into contracts with U.S. federal government customers or
otherwise result in a Material Adverse Effect.
(b) Any certificate signed by any officer of the Company delivered to
the Representatives or to counsel for the Underwriters pursuant to the terms of
this Agreement shall be deemed a representation and warranty by the Company to
the Underwriters as to the matters covered thereby.
2. Representations and Warranties of the Selling Stockholder.
---------------------------------------------------------
(a) The Selling Stockholder represents and warrants to, and agrees
with, each Underwriter as of the Representation Date, as follows:
(i) The Selling Stockholder is the lawful owner of the
Shares to be sold by the Selling Stockholder pursuant to this Agreement and has,
and on each Closing Date, as applicable, will have, good, valid and clear title
to such Shares, free of any and all restrictions on transfer, liens,
encumbrances, security interests, equities, claims and other defects whatsoever.
(ii) The Selling Stockholder has, and on each Closing Date,
as applicable, will have, full legal right, power and authority, and all
authorizations and approvals required by law, to enter into this Agreement and
to sell, assign, transfer and deliver the Shares to be sold by the Selling
Stockholder in the manner provided herein.
(iii) This Agreement has been duly executed and delivered
by or on behalf of the Selling Stockholder and is a legal, valid and binding
agreement of the Selling Stockholder.
13
(iv) Upon delivery of and payment for the Shares to be
sold by the Selling Stockholder pursuant to this Agreement, good, valid and
clear title to such Shares will pass to the Underwriters, free and clear of all
restrictions on transfer, liens, encumbrances, security interests, equities,
claims and defects whatsoever.
(v) The execution, delivery and performance of this
Agreement by the Selling Stockholder, the compliance by the Selling Stockholder
with all the provisions hereof and the consummation by the Selling Stockholder
of the transactions contemplated hereby will not (A) require the Selling
Stockholder to obtain any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except as such may
be required under the securities or blue sky laws of the various states or as
have been or will be obtained), (B) conflict with or constitute a breach of any
of the terms or provisions of, or a default under, any indenture, loan
agreement, mortgage, deed of trust, lease, license or other agreement or
instrument to which the Selling Stockholder is a party or by which the Selling
Stockholder or any property of the Selling Stockholder is bound or (C) to his
knowledge, violate or conflict with any applicable federal, state, local or
foreign law, statute, rule, regulation or judgment, order or decree of any court
or any governmental body or agency having jurisdiction over the Selling
Stockholder or any property of the Selling Stockholder.
(vi) The information in the Registration Statement and
Prospectus under the caption "Principal and Selling Stockholder" which
specifically relates to the Selling Stockholder does not, and will not on any
Closing Date, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, the light of the circumstances under which they were made,
not misleading and the Selling Stockholder has agreed to immediately notify the
Company, if, at any time during the period when a Prospectus is required by law
to be delivered in connection with sales of Class A Common Stock by an
Underwriter or a dealer, there is any material change in such information.
(vii) The Selling Stockholder has not taken, and will not
take, directly or indirectly, any action designed to, or which might reasonably
be expected to, cause or result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Shares
pursuant to the distribution contemplated by this Agreement, and, other than as
permitted by the Act, the Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
Offering.
(viii) Each certificate signed by or on behalf of the Selling
Stockholder and delivered to the Underwriters or counsel of the Underwriters
shall be deemed to be a representation and warranty by the Selling Stockholder
to the Underwriters as to the matters covered thereby.
3. Sale and Delivery to the Underwriters; Closing.
----------------------------------------------
(a) Subject to the terms and conditions and in reliance upon the
representations, warranties, covenants and agreements herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$_____ per share (the "Purchase Price"), the number
--------------
14
of Company Firm Shares set forth opposite such Underwriter's name in
Schedule I hereto, subject to adjustment in accordance with Section 10 hereof.
(b) Subject to the terms and conditions and in reliance upon the
representations, warranties, covenants and agreements herein set forth, the
Selling Stockholder agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Selling Stockholder, at
the Purchase Price, the number of Selling Stockholder Firm Shares set forth
opposite such Underwriter's name in Schedule I hereto, subject to adjustment in
accordance with Section 10 hereof.
(c) The Company and the Selling Stockholder grant to the Underwriters
an option to purchase all or any part of the Additional Shares at the Purchase
Price. Subject to the terms and conditions and in reliance upon the
representations, warranties, covenants and agreements herein set forth,
Additional Shares may be purchased from the Company and the Selling Stockholder,
for the accounts of the respective Underwriters in the same proportion that the
number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares. Such option may be
exercised only to cover over-allotments in the sale of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time and from time
to time within 30 days after the date of this Agreement, in each case upon
written or facsimile notice, or verbal or telephonic notice confirmed by written
or telegraphic notice, by the Underwriters to the Company and the Selling
Stockholder no later than 12:00 noon, New York City time, on the business day
before the Firm Shares Closing Date (as hereinafter defined) or at least two
business days before the Additional Shares Closing Date (as hereinafter
defined), as the case may be, setting forth the number of Additional Shares to
be purchased and the time and date (if other than the Firm Shares Closing Date)
of such purchase. Notwithstanding anything to the contrary set forth herein, the
initial 383,513 Additional Shares to be purchased by the Underwriters pursuant
to this Section 3 shall be Selling Stockholder Additional Shares which shall be
purchased from the Selling Stockholder and any Additional Shares in excess
thereof to be purchased by the Underwriters shall be Company Additional Shares
which shall be purchased exclusively from the Company.
(d) Payment of the purchase price for, and delivery of, the Firm
Shares to be purchased by the Underwriters shall be made at the offices of
Jefferies & Company, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the Representatives and
the Company at 10:00 A.M. on the third (fourth, if the pricing occurred after
4:30 p.m. on any given day) business day after the date of this Agreement, or
such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called the "Firm Shares Closing Date").
------------------------
Payment shall be made to the Company and the Selling Stockholder by wire
transfer and payable in immediately available funds to the order of the Company
and the Selling Stockholder against delivery to the Underwriters of the Firm
Shares.
(e) Payment of the purchase price for, and delivery of, the
Additional Shares to be purchased by the Underwriters shall be made at the
offices as set forth above or at such other place as shall be agreed upon by the
Representatives and the Company at the time and on the date (which may be the
same as, but in no event shall be earlier than, the Firm Shares Closing Date)
specified in the notice referred to in Section 3(c) hereof (such time and date
of delivery
15
and payment are called the "Additional Shares Closing Date"). The Firm
------------------------------
Shares Closing Date and the Additional Shares Closing Date are called,
individually, a "Closing Date" and together, the "Closing Dates." Payment shall
------------ -------------
be made to the Company and the Selling Stockholder by wire transfer and payable
in immediately available funds to the order of the Company and the Selling
Stockholder against delivery to the Underwriters of the applicable Additional
Shares.
(f) The Shares shall be in such denominations and registered in such
names as the Representatives may request in writing at least two business days
before the Firm Shares Closing Date or, in the case of the Additional Shares, on
the day of notice of exercise of the option as described in Section 3(c) hereof.
The Shares will be made available for examination and packaging by the
Underwriters not later than 1:00 P.M. on the last business day prior to the Firm
Shares Closing Date (or the Additional Shares Closing Date in the case of the
Additional Shares) at such place as is reasonably designated by the
Representatives. If the Representatives so elect, delivery of the Shares may be
made by credit through full FAST transfer to the accounts of The Depository
Trust Company designated by the Representatives.
(g) It is understood that the Representatives, individually and not
as Representatives of the several Underwriters, may (but shall not be obligated
to) make payment to the Company on behalf of any Underwriter or Underwriters for
any Shares to be purchased by such Underwriter or Underwriters in connection
with the Offering. Any such payment by the Representatives shall not relieve
such Underwriter or Underwriters from any of its or their other obligations
hereunder.
4. Covenants of the Company.
------------------------
(a) The Company covenants with each Underwriter as follows:
(i) The Company will use its reasonable best efforts to c
ause the Registration Statement, if not effective at the Representation Date,
and any amendment thereto, to become effective, as promptly as possible after
the filing thereof and agrees to prepare the Prospectus in a form approved by
the Underwriters. The Company will not file any amendment to the Registration
Statement or amendment or supplement to the Prospectus of which the
Representatives shall not previously have been advised and furnished with a copy
or to which the Representatives shall reasonably object in writing after a
reasonable opportunity to review such amendment or supplement. Subject to the
foregoing sentences in this clause 4(a)(i), if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Prospectus
or supplement to the Prospectus is otherwise required under Rule 424(b), the
Company will cause the Prospectus, properly completed, or such supplement
thereto, to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (A) when the Registration Statement, if not
effective at the Representation Date, and any amendment thereto, shall have
become effective, (B) when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b), (C)
when any amendment to the Registration Statement shall have been filed or become
effective, (D) of receipt of any comments from the Commission or any request by
the Commission for any amendment of or supplement to the Registration Statement
or any Prospectus or for any additional information, (E) of the receipt
16
by the Company of any notification of, or if the Company otherwise has
knowledge of, the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose, (F) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose and (G) when, prior to termination of the Offering of the
Shares, any document shall have been filed by the Company under the Act or the
Exchange Act or under the rules and regulations promulgated thereunder. The
Company will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the lifting thereof.
(ii) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Act or the Act Regulations in
connection with the Offering of the Shares, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend the Registration
Statement or amend or supplement the Prospectus to comply with the Act or the
Act Regulations, the Company promptly will prepare and file with the Commission,
at the Company's expense, an amendment or supplement which will correct such
statement or omission or effect such compliance and will use its reasonable best
efforts to cause the same to become effective as soon as possible; and, in case
any Underwriter is required to deliver a prospectus after such time, the Company
upon request, but at the expense of such Underwriter, will promptly prepare such
amendment or amendments to the Registration Statement and such Prospectus or
Prospectuses as may be necessary to permit compliance with the requirements of
the Act and the Act Regulations. Neither your consent to, nor your delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7.
(iii) During such period when a prospectus is required by
law to be delivered in connection with sales by an Underwriter or dealer, the
Company, at its expense, will furnish to each Underwriter or mail to its order
copies of the Registration Statement, the Prospectus, the Preliminary Prospectus
and all amendments and supplements to any such documents in each case as soon as
available and in such quantities as such Underwriter may reasonably request, for
the purposes contemplated by the Act.
(iv) The Company consents to the use of the Prospectus in
accordance with the provisions of the Act and with the securities or blue sky
laws of the jurisdictions in which the Shares are offered by the Underwriters
and by all dealers to whom Shares may be sold, both in connection with the
Offering and for such period of time thereafter as the Prospectus is required by
the Act to be delivered in connection with the sales by any Underwriter or
dealer. The Company will comply with all requirements imposed upon it by the Act
as the same may be amended so far as necessary to permit the continuance of
sales of or dealing in the Shares in accordance with the provisions hereof and
the Prospectus.
(v) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives a consolidated
earnings statement or statements of the Company and the Subsidiaries covering a
twelve-month period beginning with the first full calendar quarter following the
Effective Date which will satisfy the provisions of
17
Section 11(a) of the Act and Rule 158 thereunder (it being understood that
such delivery requirements shall be deemed met by the Company's compliance with
the Company's reporting requirements pursuant to the Exchange Act and the
Exchange Rules and Regulations).
(vi) The Company will (A) on or before the Closing Date,
deliver to the Representatives manually signed copies of the Registration
Statement as originally filed and of each amendment thereto filed prior to the
time the Registration Statement becomes effective and, promptly upon the filing
thereof, manually signed copies of each post-effective amendment, if any, to the
Registration Statement (together with, in each case, all exhibits thereto unless
previously furnished to you) and will also deliver to you, for distribution to
the Underwriters, a sufficient number of additional conformed copies of each of
the foregoing (but without exhibits) so that one copy of each may be distributed
to each Underwriter, (B) as promptly as possible deliver to you and send to the
several Underwriters, at such office or offices as you may designate, as many
copies of the Preliminary Prospectus and Prospectus as you may reasonably
request and (C) thereafter from time to time during the period in which a
prospectus is required by law to be delivered by an Underwriter or dealer,
likewise send to the Underwriters as many additional copies of the Prospectus
and as many copies of any supplement to the Prospectus and of any amended
Prospectus, filed by the Company with the Commission, as you may reasonably
request for the purposes contemplated by the Act.
(vii) During the 180 day period following the Effective
Date, the Company shall cause each new director elected or appointed to the
Company's Board of Directors and each executive officer hired by the Company, in
each case who would be required to file statements of Beneficial Ownership in
accordance with Section 16 of the Exchange Act, to enter into a Lock-Up
Agreement which will terminate on the 181st day following the Effective Date.
(viii) The Company will apply the net proceeds from the
Offering and sale of the Shares to be sold by the Company in accordance with the
description set forth in the "Use of Proceeds" section of the Prospectus.
(ix) The Company will cooperate with the Underwriters and
their counsel in connection with endeavoring to obtain and maintain the
qualification or registration, or exemption from qualification, of the Shares
for offer and sale under the applicable securities laws of such states of the
United States and other jurisdictions as the Underwriters may designate;
provided, that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to taxation or general service of process in any
jurisdiction where it is not now so subject.
(x) The Company will not, and will not permit any
Subsidiary to, at any time, directly or indirectly (A) take any action designed
to cause or result in, or that has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the Shares or
18
(B) (1) sell, bid for, purchase or pay anyone any compensation for
soliciting purchases of the Shares or (2) pay or agree to pay any person any
compensation for soliciting another to purchase any other securities of the
Company.
(xi) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(xii) The Company will not for a period of 180 days
following the date of the Prospectus, without the prior written consent of
Jefferies, (A) directly or indirectly, offer, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, lend, pledge, hypothecate or
otherwise dispose of or transfer or enter into any transaction which is
designed, or might reasonably be expected, to result in the disposition of any
shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for or repayable with shares of capital stock of the
Company (other than (1) the Shares, (2) shares of capital stock of the Company
or securities convertible into or exercisable or exchangeable for shares of
capital stock of the Company which are issued, sold or exchanged in connection
with an acquisition by the Company or one of its Subsidiaries, (3) shares of
capital stock of the Company or securities convertible into or exercisable or
exchangeable for shares of capital stock of the Company which are issued, sold
or awarded pursuant to the Management Incentive Plan as contemplated by and
described in the Registration Statement and Prospectus; provided, however, that
any such shares of capital stock or other securities issued, sold or awarded
under the Management Incentive Plan shall not vest or become exercisable prior
to the 180th day following the date of the Prospectus or (4) pursuant to
currently outstanding options, warrants or rights which are described in the
Registration Statement and Prospectus), or enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of shares of such capital stock of
the Company or securities convertible into or exercisable or exchangeable for
shares of capital stock of the Company whether any such transaction is to be
settled by delivery of capital stock, or other securities, in cash or otherwise
or (B) file (or participate in the filing of) a registration statement with the
Commission in respect of any shares of capital stock of the Company or
securities convertible into or exercisable or exchangeable for such capital
stock (except for (x) a Registration Statement on Form S-8 or (y) a registration
statement on the applicable form covering (I) the issuance of shares of capital
stock in connection with and as currency for an acquisition by the Company or
(II) resales of capital stock issued after the expiration of such period by the
Company in connection with and as currency for, an acquisition; provided,
however, that in no event shall the Company cause or permit such registration
statement to be declared or become effective until the 180th day following the
date of the Prospectus) or (C) publicly announce any intention to effect any
transaction described in clause (A) or clause (B) during the one hundred eighty
(180) days following the date of the Prospectus. In addition, during the one
hundred eighty (180) days following the date of the Prospectus, the Company will
not (x) release any executive officer, director or security holder of the
Company from their obligations under any similar agreement with the Company not
to sell, transfer or dispose of securities of the Company for the 180-day period
following the date of the Prospectus and (y) waive compliance with any
prohibitions on trading which may be in effect during such 180-day period under
the Company's trading policy as previously provided to the Representatives and
in effect on the date hereof.
19
(xiii) The Company shall cause the Shares to be quoted on the
Nasdaq National Market and shall use its reasonable best efforts to maintain
such trading while the Shares are outstanding for a period of three hundred
sixty five (365) days following the Firm Shares Closing Date; provided, however,
that during the 365-day period, the Company may apply to list the securities on
a national securities exchange in lieu of being included for quotation on the
Nasdaq National Market.
(xiv) During the 25 day period following the Effective Date,
the Company shall provide to the Representatives copies of any press release or
similar communication the Company intends to disseminate a reasonable period of
time prior to the release thereof and shall not disseminate any such press
release or similar statement to which the Representatives shall reasonably
object. The Company also agrees to consult with the Representatives during such
period regarding the need to issue press releases or similar statements.
(b) The parties acknowledge that, within six months of the date of
the Prospectus, the Company intends to increase the size of its Board of
Directors to consist of eight members, and, in connection with such increase,
the Company shall appoint another independent director to its Board of
Directors. The Company agrees to advise Jefferies of the identity of any
individual that the Company proposes to appoint as such independent director and
further agrees that any such individual that the Company shall appoint will not
have received any remuneration, directly or indirectly, from the Company or its
affiliates during the year preceding such appointment.
(c) The Company covenants and agrees with the Underwriters that the
amounts to be paid to the Chief Executive Officer and the Chief Financial
Officer set forth in the Registration Statement and Prospectus under "Management
and Key Advisors -- Executive Compensation" with respect to bonuses earned in
2001 which will be paid in 2002 shall not exceed, either on an individual basis
or in the aggregate, the amounts set forth in such table as being earned by
those individuals in 2000 and paid in 2001.
5. Covenants of the Selling Stockholder.
------------------------------------
(a) The Selling Stockholder covenants with each Underwriter as
follows:
(i) The Selling Stockholder will advise the Underwriters
promptly of the happening of any event known to the Selling Stockholder during
any period in which a prospectus relating to the Shares is required to be
delivered under the Act which, in the judgment of such Selling Stockholder,
would require the making of any change in the Prospectus then being used so that
the Prospectus would not include an untrue statement of material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
(ii) The Selling Stockholder will pay all federal and other
taxes, if any, on the transfer and sale of the Shares being sold by the Selling
Stockholder to the Underwriters. The Selling Stockholders will deliver to
Jefferies, attn: [ ] on or prior to the first
20
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form in lieu thereof).
6. Payment of Expenses.
-------------------
(a) The Company shall, regardless of whether the Offering
contemplated by this Agreement and the Prospectus is consummated, be responsible
for and shall pay all costs, fees and expenses incurred in connection with or
incident to the proposed Offering, including, without limitation, (A) all
expenses and taxes incident to the authorization, issuance, sale and delivery of
the Shares to be sold by the Company to the Representatives, (B) all expenses
incident to the registration of the Shares under the Act, (C) all costs of
preparing stock certificates, including printing and engraving costs, (D) all
fees and expenses of the registrar and transfer agent of the Shares, (E) without
limiting clause (A) above, all necessary, transfer and other stamp taxes in
connection with the issuance and sale of the Shares to be sold by the Company to
the Underwriters, (F) all fees and expenses of the Company's counsel, the
Company's independent accountants and any other experts or consultants retained
by or on behalf of the Company in connection with the Offering including,
without limitation, those of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, (G) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping and
distribution of the Registration Statement, each Preliminary Prospectus and the
Prospectus, including all exhibits and financial statements, and all amendments
and supplements provided for herein, including, without limitation, any
post-effective amendments, the Powers of Attorney, the Custody Agreement, the
blue sky memoranda, this Agreement, the Agreement among Underwriters, the
Underwriters' Questionnaire and Power of Attorney, (H) the filing fees and
expenses incurred by the Company or the Underwriters in connection with
exemptions from qualifying or registering (or obtaining qualification or
registration of) all or any part of the Shares for offer and sale and
determination of eligibility for investment under the blue sky or other
securities laws of such jurisdictions as the Representatives may designate
(including related fees and expenses of counsel to the Underwriters), (I) the
fees paid or incurred in connection with filings made with the NASD (including
related fees and expenses of counsel to the Underwriters not to exceed $10,000),
(J) all travel and lodging fees and expenses incurred by or on behalf of
officers and representatives of the Company in connection with presentations to
prospective purchasers of the Shares, (K) all word processing charges, messenger
and duplicating services, facsimile expenses and other customary expenses of the
Company related to the proposed Offering, (L) the costs and expenses relating to
preparation and delivery to the Underwriters of five closing binders, (M) all
applicable listing or other fees relating to the Shares, including, without
limitation, the fees relating to quotation of the Class A Common Stock on the
Nasdaq National Market and (N) all other costs and expenses incident to the
performance by the Company and the Selling Stockholder of their obligations
under this Agreement; provided, however, that except as provided in this Section
6 and in Section 11, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel.
(b) The Company will pay, either directly or by reimbursement, all
fees and expenses incident to the performance of the Selling Stockholder's
obligations under this Agreement, which are not otherwise specifically provided
for herein, provided, however, in no event shall such fees and expenses include
the underwriting discounts and commissions applicable to the Selling Stockholder
Firm Shares or the Selling Stockholder Additional Shares.
21
(c) Unless otherwise specifically stated in Section 8(b), no fee,
cost or expense paid or payable by or to Jefferies or any of its affiliates
shall be credited against any other fee, cost or expense paid or payable by or
to Jefferies or any of its affiliates.
7. Conditions of the Underwriters' Obligation.
------------------------------------------
The several obligations of the Underwriters to purchase the Shares
hereunder are subject to the accuracy of the representations and warranties of
the Company and the Selling Stockholder herein contained as of the date hereof
and on each Closing Date, to the accuracy of the statements of the Company and
the Selling Stockholder made in any certificate or certificates pursuant to the
provisions hereof as of the date of thereof and on each Closing Date and to the
performance by the Company and the Selling Stockholder of its obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date hereof, or at such later time and date as may be
approved by the Representatives and the Company, and shall remain effective at
each Closing Date. No stop order suspending the effectiveness of the
Registration Statement or the qualification or registration of the Shares under
the Act shall be in effect or proceedings therefor initiated or threatened by
the Commission. If the Company has elected to rely upon Rule 430A, the price of
the Shares and any price-related or other information previously omitted from
the effective Registration Statement pursuant to Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) within the
prescribed time period, and prior to the Firm Shares Closing Date, the Company
shall have provided evidence satisfactory to the Representatives of such timely
filing, or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirement of Rule
430A.
(b) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, and except as set forth in or
contemplated in the Prospectus, there shall not have occurred (i) any change in
or affecting the business (including, without limitation, a change in management
or control of the Company), properties, condition (financial or other), or
results of operations of the Company or the Subsidiaries, taken as a whole, or
adverse change in the capital stock, short-term debt or long-term debt of the
Company which, in the good faith judgment of the Representatives, materially
adversely affects the market for the Shares or otherwise makes it impracticable
or inadvisable to proceed with the Offering or to purchase the Shares as
contemplated by this Agreement or (ii) any material loss or interference with
the business or properties of the Company or any of the Subsidiaries from fire,
explosion, flood or other casualty, whether or not covered by insurance, or from
any labor dispute, (iii) any development involving any court or legislative or
other governmental or administrative action, order or decree, which is not set
forth or fully described in the Registration Statement and the Prospectus and
which would have a Material Adverse Effect, if in the judgment of the
Representatives any such development makes it impracticable or inadvisable to
proceed with completion of the Offering and the sale of and payment for the
Shares, or (iv) any development involving any governmental investigation
involving the Company or any Subsidiary which is not set forth or fully
described in the Registration Statement and the Prospectus if in the judgment of
the Representatives any such development makes it
22
impracticable or inadvisable to proceed with completion of the Offering and
the sale and payment for the Shares.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall have been no
litigation, investigation or other proceeding instituted against the Company or
any of the Subsidiaries or any of their respective officers, directors or senior
management personnel, before or by any federal, state, local or foreign court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, or arbitrator, in which such litigation, investigation or
proceeding an unfavorable ruling, decision or finding would result in a Material
Adverse Effect or may affect the Company's or the Selling Stockholder's ability
to perform their respective obligations under this Agreement.
(d) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Shares, the Registration
Statement and the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby and by the Registration
Statement and Prospectus including, without limitation, the transactions
contemplated by and described under "Transactions Prior to the Offering -
Reincorporation, Recapitalization and Stock Split" and "Management and Key
Advisors - Retention Agreements," shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company and the
Selling Stockholder shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(e) (i) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company and the
Selling Stockholder, shall have furnished to the Underwriters their opinion,
reasonably satisfactory in form and substance to counsel for the Underwriters,
dated each Closing Date to the effect set forth on Exhibit A, and (ii) [ ] shall
---------
have furnished to the Underwriters their opinion, reasonably satisfactory in
form and substance to counsel for the Underwriters, dated each Closing Date
relating to matters pertaining to Subsidiaries of the Company organized outside
the United States.
(f) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Underwriters, shall
have furnished to the Underwriters an opinion with respect to such matters as
may be reasonably requested by the Underwriters, dated each Closing Date.
(g) The following conditions contained in clauses (A) through (C) of
this Section 7(g) shall have been satisfied on and as of each Closing Date and
the Company shall have furnished to the Underwriters a certificate of the
Company, signed by the Chairman of the Board or the President and the principal
financial or accounting officer of the Company, dated such Closing Date, to the
effect that the signers of such certificate have examined the Registration
Statement, the Prospectus, any supplement or amendment to the Prospectus and
this Agreement and that:
(A) the representations and warranties of the Company in this
Agreement are true and correct on and as of such Closing Date, with the same
effect as if made on such Closing Date; and the Company has complied with all
the agreements and satisfied all
23
the conditions under this Agreement on its part to be performed or satisfied
at or prior to such Closing Date;
(B) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the knowledge of the Company, threatened; and
(C) since the date of the most recent financial statements
included in the Prospectus, there has been no change or development involving a
change, with respect to the business, properties, financial condition or
results of operations of the Company or the Subsidiaries, taken as a whole,
that could reasonably be expected to have a Material Adverse Effect.
(h) The following conditions contained in clause (A) of this Section
7(h) shall have been satisfied on and as of each Closing Date and the Selling
Stockholder shall have furnished to the Underwriters a certificate of the
Selling Stockholder, signed by the Selling Stockholder, dated each Closing Date,
to the effect that the Selling Stockholder has carefully examined the
Registration Statement, the Prospectus, any supplement or amendment to the
Prospectus and this Agreement and that the representations and warranties of the
Selling Stockholder in this Agreement are true and correct on and as of such
Closing Date, with the same effect as if made on such Closing Date; and the
Selling Stockholder has complied with all the agreements and satisfied all the
conditions under this Agreement on its part to be performed or satisfied at or
prior to such Closing Date.
(i) At the Effective Date, and at each Closing Date, the
Representatives shall have received from each of Deloitte & Touche LLP and
PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the respective dates
set forth above (i) confirming that they are independent public accountants
within the meaning of the Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date thereof (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date thereof), the conclusions and
finding of such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(j) The Nasdaq National Market shall have approved the Shares for
inclusion, subject only to official notice of issuance and evidence of
satisfactory distribution.
(k) At each Closing Date, counsel for the Underwriters shall have
been furnished with such information, certificates and documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Shares as contemplated herein and related proceedings, or to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained, or otherwise in
connection with the Offering contemplated hereby; and all opinions and
certificates mentioned above or elsewhere in this Agreement shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
24
(l) The Representatives shall have received the Lock-Up Agreements
referenced in Section 1(a)(xxxviii).
8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify, defend and hold harmless, each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, to the fullest extent lawful from and
against any losses, expenses, claims, damages or liabilities (including any and
all investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted), which, jointly or severally, any of them may become subject
under the Act, the Exchange Act, or any other federal, state, local or foreign
statute or regulation, at common law or otherwise insofar as such losses,
expenses, claims, damages or liabilities arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
(A) the Registration Statement, any Preliminary Prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or (B) any blue sky application
or other document executed by the Company specifically for that purpose or based
upon information furnished by the Company in writing filed in any state or other
jurisdiction in order to qualify any or all of the Shares under the securities
laws thereof or filed with the Commission or any securities association or
securities exchange (each, an "Application"), or (C) in any materials or
-----------
information provided to investors by, or with the approval of, the Company in
connection with the marketing of the Offering, including any roadshow or
investor presentations made to investors by the Company (whether in person or
electronically), or (ii) the omission or alleged omission to state (with respect
to (A), (B) or (C) above) therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
will not be liable in any such case to the extent that any such loss, expense,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with the written information
furnished to the Company by the Representatives on behalf of any Underwriters
expressly for use in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
any Application or any materials described in (C) above; and provided, further,
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any Preliminary Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the benefit of any
such Underwriter, the directors, officers, employees or agents of such
Underwriter or any persons controlling such Underwriter and the Company shall
not be liable to any such Underwriter, the directors, officers, employees or
agents of such Underwriter or any persons controlling such Underwriter, from
whom the person asserting any such losses, expenses, claims, damages or
liabilities purchased the Shares concerned, to the extent that any such loss,
expense, claim, damage or liability results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Shares to such person, a copy of the Prospectus, as the same may be
amended or supplemented, as required by the Act (if required thereby), and the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such Preliminary Prospectus was
25
corrected in such Prospectus and the Company had previously furnished copies
thereof to such Underwriter on a timely basis in order to permit the Prospectus
(as the same may be amended or supplemented) to be sent or given. The foregoing
indemnity agreement shall be in addition to any liability that the Company may
otherwise have.
(b) The Selling Stockholder agrees to indemnify, defend and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
fullest extent lawful from and against any losses, expenses, claims, damages or
liabilities (including any and all investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted), which, jointly or
severally, any of them may become subject under the Act, the Exchange Act, or
any other federal, state, local or foreign statute or regulation, at common law
or otherwise, as such expenses are incurred, insofar as such losses, expenses,
claims, damages or liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained (A) in the
Registration Statement, any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, that is based upon information provided
by the Selling Stockholder or information under the caption "Principal and
Selling Stockholder" that specifically relates to the Selling Stockholder, or
(B) in any Application executed by the Selling Stockholder specifically for that
purpose or based upon information furnished by the Selling Stockholder filed in
any Application, or (C) the omission or alleged omission to state therein with
respect to either (A) or (B) a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
that the Selling Stockholder will not be liable in any such case to the extent
that any such loss, expense, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with the
written information furnished to the Selling Stockholder or the Company by the
Representatives on behalf of any Underwriters expressly for use in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, any Application or any
materials described in (C) above; and provided, further, that with respect to
any untrue statement or omission or alleged untrue statement or omission made in
any Preliminary Prospectus, the indemnity agreement contained in this Section
8(b) shall not inure to the benefit of any such Underwriter, the directors,
officers, employees or agents of such Underwriter or any persons controlling
such Underwriter and the Selling Stockholder shall not be liable to any such
Underwriter, the directors, officers, employees or agents of such Underwriter or
any persons controlling such Underwriter, from whom the person asserting any
such losses, expenses, claims, damages or liabilities purchased the Shares
concerned, to the extent that any such loss, expense, claim, damage or liability
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Shares to such person, a
copy of the Prospectus, as the same may be amended or supplemented, as required
by the Act (if required thereby), and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in such Preliminary Prospectus was corrected in such Prospectus and the
Selling Stockholder had previously furnished copies thereof to such Underwriter
on a timely basis in order to permit the Prospectus (as the same may be amended
or
26
supplemented) to be sent or given. The foregoing indemnity agreement shall
be in addition to any liability that the Selling Stockholder may otherwise have.
(c) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each director of the
Company and each officer who signs the Registration Statement, and the Selling
Stockholder, to the same extent as the foregoing indemnity from the Company to
each Underwriter, the directors, officers, employees, and agents of such
Underwriter and any person controlling such Underwriter, but only insofar as
such loss, expense, claim, damage or liability arises out of or is based upon
any untrue statement or omission or alleged untrue statement or omission made in
reliance on or in conformity with information relating to such Underwriter
furnished in writing to the Company by the Representatives on behalf of such
Underwriter, expressly for use in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability that
any Underwriter may otherwise have.
(d) If any action is brought against an indemnified party under this
Section 8, the indemnified party or parties shall promptly notify the
indemnifying party in writing of the institution of such action (provided that
the failure to give such notice shall not relieve the indemnifying party of any
liability which it may have pursuant to this Agreement, unless and to the extent
the indemnifying party did not otherwise learn of such action and such failure
has resulted in the forfeiture of substantive rights or defenses by the
indemnifying party) and the indemnifying party shall assume the defense of such
action, including the employment of counsel and payment of reasonable expenses.
The indemnified party or parties shall have the right to employ separate counsel
(including local counsel) in any such case and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by the indemnifying party in connection with the
defense of such action, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to take charge of the
defense of such action within a reasonable time after notice of the institution
of such action, (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them that are different
from or additional to those available to the indemnifying party or (iv) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest (in which case the
indemnifying party shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by the indemnifying party and paid as incurred;
provided that the indemnifying party shall only be responsible for the fees and
expenses of one counsel for the indemnified party or parties hereunder).
Anything in this paragraph to the contrary notwithstanding, the indemnifying
party shall not be liable for any settlement of any such claim or action
effected without its written consent, which consent shall not be unreasonably
withheld. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
involves only the payment
27
of monetary damages and includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(e) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsections (a), (b) or (c) of this
Section 8 or is insufficient to hold harmless a party indemnified thereunder, in
respect of any losses, expenses, claims, damages or liabilities referred to
therein, then each applicable indemnifying party shall contribute to the amount
paid in settlement of any action, suit or proceeding or any claims asserted, but
after deducting any contribution received by an applicable indemnified party
from persons who may also be liable for contribution, including persons who
control the indemnified party within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, in such proportion as is appropriate to reflect
the relative benefits received by the Company or the Selling Stockholder on the
one hand, and the Underwriters on the other hand, from the Offering or, if, but
only if, such allocation is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of the Company or the Selling Stockholder on the one
hand, and the Underwriters on the other hand, in connection with the statements
or alleged statements or omissions or alleged omissions which resulted in such
losses, expenses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company or the
Selling Stockholder on the one hand, and the Underwriters on the other hand,
shall be deemed to be in the same proportion as the total proceeds from the
Offering (net of underwriting discounts but before deducting expenses) received
by the Company and the Selling Stockholder bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company or the Selling Stockholder on the one hand, and the Underwriters on
the other hand, shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company, the Selling Stockholder or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, expenses, claims and liabilities referred to above shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any claim or action. The Company,
the Selling Stockholder and the Underwriters agree that it would not be just and
equitable if contribution pursuant hereto were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
8(e), no Underwriter shall be required to contribute any amount in excess of the
underwriting discount received by it by reason of such untrue statement or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section 8(e)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The Company and the Selling Stockholder may agree, as between
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of such liability for which they each
shall be responsible; provided that in the
28
absence of any such agreement, such liability shall be allocated in
accordance with each such party's pro rata portion of the aggregate net proceeds
from the Offering contemplated hereby.
(g) The liability of the Selling Stockholder under the Selling
Stockholder's representations and warranties contained in Section 1 hereof and
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the price received by the Selling
Stockholder for the Shares sold by the Selling Stockholder to the Underwriters.
9. Survival. The respective indemnity and contribution agreements
--------
contained in Section 8 hereof and the covenants, warranties and other
representations of the Company and the Selling Stockholder contained in this
Agreement or contained in certificates of officers of the Company or the Selling
Stockholder or submitted pursuant hereto, shall remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter, or any
of their respective officers, employees, directors, stockholders or persons who
control the Underwriters within the meaning of Section 15 of the Act, or by or
on behalf of the Company or any of its directors, officers, employees or any
person who controls the Company within the meaning of Section 15 of the Act or
the Selling Stockholder, and shall survive delivery of and payment for the
Shares.
10. Default by an Underwriter. If one or more of the Underwriters
-------------------------
shall fail or refuse on the Firm Shares Closing Date or the Additional Shares
Closing Date to purchase and pay for any of the Shares agreed to be purchased by
such Underwriter or Underwriters hereunder on such date and the aggregate number
of Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as the Representatives may
specify, to purchase the Firm Shares or Additional Shares, as the case may be,
which such defaulting Underwriter or Underwriters, as the case may be, agreed
but failed or refused to purchase on such date; provided that in no event shall
the number of Firm Shares or Additional Shares, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 3 hereof be increased
pursuant to this Section 10 by an amount in excess of one-tenth of such number
of Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Firm Shares Closing Date or on the
Additional Shares Closing Date, as the case may be, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares, or Additional Shares,
as the case may be, and the aggregate number of Firm Shares or Additional
Shares, as the case may be, with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares to be purchased on such date by
all Underwriters in the event of a default by an Underwriter and arrangements
satisfactory to the Representatives and the Company for purchase of such Shares
are not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter, the Selling
Stockholder and the Company. In any such case which does not result in
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the Firm Shares Closing Date or the Additional Shares
Closing Date, as the case may be, but in no
29
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
11. Termination of Agreement.
------------------------
(a) The Representatives may terminate this Agreement, by written
notice to the Company and the Selling Stockholder prior to the Firm Shares
Closing Date (or, if applicable, the Additional Shares Closing Date) (i) if
there shall occur any failure, refusal or inability of the Company or the
Selling Stockholder to satisfy any of the conditions contained in Section 7
hereof or (ii) if, since the date of this Agreement and prior to the Firm Shares
Closing Date (or, if applicable, the Additional Shares Closing Date), (A) there
has occurred any material adverse change in the financial markets of the United
States or in political, financial or economic conditions in the United States or
any outbreak or material escalation of hostilities or any other insurrection or
armed conflict or declaration by the United States of a national emergency or
war or other calamity or crisis, the effect of which on the financial securities
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Shares on the terms
and in the manner contemplated by the Prospectus, (B) trading in any of the
securities of the Company has been suspended by the Commission, or trading
generally on the New York Stock Exchange or the Nasdaq National Market has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by the New York Stock
Exchange or the Nasdaq National Market or by order of the Commission or any
other governmental authority or (C) a banking moratorium has been declared by
any of the federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 11 or
any other provision of this Agreement, such termination shall be without
liability of any party to any other party except the provisions of Sections 6, 8
and 11(c) shall remain in full force and effect.
(c) Notwithstanding any other provisions hereof, (i) if this
Agreement shall be terminated by the Representatives under Section 11, the
Company will bear and pay the expenses to be paid by the Company pursuant to
Section 6 hereof and (ii) if this Agreement shall be terminated by the
Representatives under Section 11(a)(i), in addition to its obligations pursuant
to Section 8 and Section 11(c)(i) hereof, the Company will reimburse the
out-of-pocket expenses of the several Underwriters (including reasonable fees
and disbursements of counsel for the underwriters) incurred in connection with
this Agreement and the proposed purchase of the Shares, and promptly upon demand
the Company will pay such amounts to the Representatives
12. Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to have been duly given if mailed, delivered or
transmitted by facsimile or telegraphed and confirmed. Notices to the
Representatives or the Underwriters shall be directed to the Underwriters, c/▇
▇▇▇▇▇▇▇▇▇ & Company, Inc., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.; notices
to the Company or the Selling Stockholder shall be directed to ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇, ▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, attention
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
13. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters, the Company, the Selling Stockholder and their
respective successors and legal representatives and controlling persons and
officers, employees, directors and stockholders referred to in Sections 8 and 9
and their respective heirs and legal representatives Nothing expressed or
mentioned in this Agreement is intended or shall be construed to provide any
person, firm or corporation, other than the Underwriters, the Company, the
Selling Stockholder and their respective successors and legal representatives
and the controlling persons and officers, employees, directors and stockholders
referred to in Sections 8 and 9 and their respective heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company, the Selling Stockholder and
their respective successors and legal representatives, and said controlling
persons, stockholders, officers and directors and their respective heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Shares from the Underwriters shall be deemed to be
a successor by reason merely of such purchase.
14. Construction; Choice of Law. This Agreement incorporates the entire
---------------------------
understanding of the parties and supersedes all previous agreements relating to
the subject matter hereof should they exist. This Agreement and any issue
arising out of or relating to the parties' relationship hereunder shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to the principles of conflicts of law thereof.
15. Jurisdiction and Venue. Each party hereto consents specifically to
----------------------
the exclusive jurisdiction of the federal courts of the United States sitting in
the Southern District of New York, or if such federal court declines to exercise
jurisdiction over any action filed pursuant to this Agreement, the courts of the
State of New York in the County of New York, and any court to which an appeal
may be taken in connection with any action filed pursuant to this Agreement, for
purposes of all legal proceedings arising out of or relating to this Agreement.
In connection with the foregoing consent, each party irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the court's exercise of personal jurisdiction over each party to this
Agreement or the laying of venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum. Each party further irrevocably waives its right to a
trial by jury and consents that service of process may be effected in any manner
permitted under the laws of the State of New York.
16. Counterparts. This Agreement may be executed by any one or more of
------------
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
17. Attorney-in-Fact. Any person executing and delivering this Agreement
----------------
as Attorney for the Selling Stockholder represents by so doing that he has been
duly appointed as
31
Attorney by the Selling Stockholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney to take such action.
18. Partial Unenforceability. The invalidity or unenforceability of any
------------------------
section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other section, paragraph or provision hereof. If any
section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
19. General. In this Agreement, the masculine, feminine and neuter
-------
genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This Agreement
may be amended or modified, and the observance of any term of this Agreement may
be waived, only by a writing signed by the Company, the Selling Stockholder and
the Representatives.
[Remainder of page intentionally left blank]
32
* * * * *
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Selling Stockholder a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Company and the Selling
Stockholder in accordance with its terms.
Very truly yours,
MANTECH INTERNATIONAL CORPORATION
By:
-----------------------------------
Name:
Title:
SELLING STOCKHOLDER
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
INCORPORATED
BB&T Capital Markets/▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇,
Inc.
By: ▇▇▇▇▇▇▇▇▇ & Company, Inc.
By:
------------------------------------------
Name:
Title:
For themselves and as Representatives of the
other Underwriters named in this Agreement
Schedule I
Number of Selling
Number of Company Firm Stockholder Firm Shares
Underwriter Shares To Be Purchased To Be Purchased
----------- ---------------------- ------------------------
▇▇▇▇▇▇▇▇▇ & Company, Inc. ...........
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Incorporated .......................
BB&T Capital Markets/▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇▇, Inc. ................. -------------
Total ............ =============
34