2,750,000
ACT MANUFACTURING, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
----------------------
November __, 1999
Credit Suisse First Boston Corporation,
CIBC World Markets Corp.,
▇▇ ▇▇▇▇▇ Securities Corporation,
▇.▇. ▇▇▇▇▇▇▇▇ & Co.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. ACT Manufacturing, Inc., a Massachusetts corporation
(the "COMPANY"), proposes to issue and sell 2,500,000 shares of its common
stock, par value $.01 per share ("COMMON STOCK"), and ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇ (together with the other stockholders of the Company listed on Schedule A
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hereto, the "SELLING STOCKHOLDERS") propose severally to sell an aggregate of
250,000 outstanding shares of Common Stock (such 2,750,000 shares of Common
Stock being hereinafter referred to as the "FIRM SECURITIES"). The Company also
proposes to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 206,250 additional shares of Common Stock, and the
Selling Stockholders also propose severally to sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 206,250 additional
outstanding shares of Common Stock, with the number of such shares to be sold by
each Selling Stockholder set forth opposite such Selling Stockholder's name on
Schedule A hereto (such 412,500 additional shares of Common Stock being
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hereinafter referred to as the "OPTIONAL SECURITIES"). The Firm Securities and
the Optional Securities are herein collectively called the "OFFERED SECURITIES".
The Company and the Selling Stockholders hereby agree with the several
Underwriters named on Schedule B hereto (the "UNDERWRITERS") as follows:
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2. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-89585) relating to the
Offered Securities, including a form of prospectus, has been filed
with the Securities and Exchange Commission (the "COMMISSION") and
either (A) has been declared effective under the Securities Act of
1933, as amended (the "ACT"), and is not proposed to be amended or (B)
is proposed to be amended by amendment or post-effective amendment.
If such registration statement (the "INITIAL REGISTRATION STATEMENT")
has been declared effective, either (A) an additional registration
statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the
Offered Securities may have been filed with the Commission pursuant to
Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all
have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such
filing the Offered Securities will all have been duly registered under
the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose
to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("RULE 462(c)") under the Act or, in the case
of the additional registration statement, Rule 462(b). For purposes
of this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement
means (A) if the Company has advised the Representatives that it does
not propose to amend such registration statement, the date and time as
of which such registration statement, or the most recent post-
effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c), or (B) if
the Company has advised the Representatives that it proposes to file
an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to
the initial registration statement or the additional registration
statement (if any) means the date of the Effective Time thereof. The
initial registration statement, as amended at its Effective Time,
including all material incorporated by reference therein and all
information contained in the additional registration statement (if
any) and deemed to be a part of the initial registration statement as
of the Effective Time of the additional registration statement
pursuant to the General Instructions of the Form on which it is filed
and including all information (if any) deemed to be a part of the
initial registration statement as of its Effective Time pursuant to
Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter referred
to as the "INITIAL REGISTRATION STATEMENT". The additional
registration statement, as amended at its Effective Time, including
the contents of the initial registration statement incorporated by
reference therein and including all information (if any) deemed to be
a part of the additional registration statement as of its Effective
Time pursuant to Rule 430A(b), is hereinafter referred to as the
"ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration Statement are hereinafter
referred to collectively as the "REGISTRATION STATEMENTS" and each
individually as a "REGISTRATION STATEMENT". The form of prospectus
relating to the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Act or (if no such filing is required) as included in a
Registration Statement, including all material incorporated by
reference in such prospectus, is hereinafter referred to as the
"PROSPECTUS". No document has been or will be prepared or distributed
in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission (the "RULES AND REGULATIONS") and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; (B) on the Effective Date of the Additional
Registration Statement (if any), each
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Registration Statement conformed or will conform, in all material
respects to the requirements of the Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective
Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the Act
and the Rules and Regulations, and none of such documents includes, or
will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and
the Rules and Regulations; neither of such documents will include any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading; and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(c) hereof.
(iii) The Company has not received any order preventing or
suspending the use of any preliminary prospectus subject to completion
contained in a Registration Statement, including all material
incorporated by reference in such prospectus (each a "PRELIMINARY
PROSPECTUS"), or any stop order suspending the effectiveness of any
Registration Statement, and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, are contemplated by
the Commission.
(iv) The Company meets the requirements for use of Form S-3
under the Act. The documents incorporated or deemed to be incorporated
by reference in any Registration Statement, any preliminary prospectus
or the Prospectus, at the time they were or hereafter are filed with
the Commission, complied, or will comply, in all material respects
with the requirements of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and the rules and regulations of the
Commission promulgated thereunder. The descriptions in the
Registration Statements of contracts and other documents are accurate
in all material respects and fairly present the information required
to be disclosed with respect thereto by the Act and the Rules and
Regulations, and there are no contracts or other documents which are
required by the Act or the Rules and Regulations to be described in
the Registration Statements or filed as exhibits thereto, or
incorporated by reference therein, which are not so described, filed
or incorporated by reference as required, and the exhibits which have
been so filed or incorporated by reference are complete and correct
copies of the documents of which they purport to be copies.
(v) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Massachusetts, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus
(or, if the Prospectus is not in existence, the most recent
preliminary prospectus); and the Company is duly qualified to do
business as a foreign corporation and is in good
3
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the condition (financial or other), business,
properties or result of operations of the Company and its subsidiaries
taken as a whole ("MATERIAL ADVERSE EFFECT").
(vi) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus (or, if the Prospectus is not in existence, the most
recent preliminary prospectus); each subsidiary of the Company is duly
qualified to do business as a foreign corporation and is in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a Material
Adverse Effect; all of the issued and outstanding capital stock of
each subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock of
each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects. The
only subsidiaries of the Company are the subsidiaries listed on
Schedule C hereto.
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(vii) As of the date set forth therein, the authorized, issued
and outstanding capital stock of the Company is as set forth under the
heading "Capitalization" in the Prospectus (or, if the Prospectus is
not in existence, the most recent preliminary prospectus). The Offered
Securities to be sold by the Company pursuant to this Agreement have
been duly authorized for issuance and sale to the Underwriters and,
when issued and delivered by the Company pursuant to this Agreement,
against payment of the consideration set forth herein, will be validly
issued, fully paid and nonassessable, free and clear of any pledge,
lien, security interest, encumbrance, claim or equitable interest and
not in violation of any preemptive right, co-sale right, right of
first refusal or similar right; and the Common Stock conforms in all
material respects to all statements relating thereto contained in the
Prospectus (or, if the Prospectus is not in existence, the most recent
preliminary prospectus) and such description conforms in all material
respects to the rights set forth in the instruments defining the same.
The Offered Securities to be sold by the Selling Stockholders pursuant
to this Agreement and all other outstanding shares of capital stock of
the Company have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description thereof
contained in the Prospectus (or, if the Prospectus is not in
existence, the most recent preliminary prospectus); and the
stockholders of the Company have no preemptive or similar rights with
respect to any shares of Common Stock which have not been satisfied or
waived in writing.
(viii) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent preliminary
prospectus), there are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(ix) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statements or
in any securities being registered pursuant to any other registration
statement filed by the Company under the Act which have not been
satisfied or waived in writing with respect to the sale of the Offered
Securities as contemplated hereby.
(x) The Offered Securities to be sold by the Company pursuant
to this Agreement have been approved for listing subject to notice of
issuance on the Nasdaq Stock Market's National Market.
4
(xi) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the
sale by the Company of the Offered Securities, except such as have
been obtained and made under the Act and such as may be required under
state securities laws.
(xii) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it
or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (collectively, the
"AGREEMENTS AND INSTRUMENTS"), except for such violations and defaults
that would not, individually or in the aggregate, have a Material
Adverse Effect. The execution, delivery and performance of this
Agreement, and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries, pursuant
to any statute, rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over
the Company or any subsidiary of the Company or any of their
properties or the charter or by-laws of the Company or any subsidiary,
or except as would not, individually or in the aggregate have a
Material Adverse Effect, any of the Agreements or Instruments.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiv) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent preliminary
prospectus), the Company and its subsidiaries have good and marketable
title to all real properties and all other properties and assets owned
by them which are material to the business of the Company and its
subsidiaries taken as a whole, in each case free from any pledges,
security interests, mortgages, liens, encumbrances and defects that
would materially affect the value thereof or materially interfere with
the use made or to be made thereof by them; except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
preliminary prospectus), the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases
and subleases with no exceptions that would materially interfere with
the use made or to be made thereof by them; and neither the Company
nor any of its subsidiaries has received any written notice or is
otherwise aware of any claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its subsidiaries
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or any such subsidiary to the
continued possession of the leased or subleased real or personal
property, in each case, that would have a Material Adverse Effect.
(xv) The Company and its subsidiaries possess adequate
certificates, licenses, approvals, authorities or permits
(collectively, the "GOVERNMENTAL LICENSES") issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any written notice or are
otherwise aware of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect. The
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except
5
where the failure so to comply would not, individually or in the
aggregate, have a Material Adverse Effect; and to the knowledge of the
Company, all of the Governmental Licenses are valid and in full force
and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not, individually or in the aggregate, have a Material
Adverse Effect.
(xvi) No material labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company,
is imminent.
(xvii) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent preliminary
prospectus), the Company and its subsidiaries own or possess licenses
or can acquire on reasonable terms, adequate trademarks, trade names
and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any written notice or are otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect.
(xviii) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent preliminary
prospectus), neither the Company nor any of its subsidiaries is in
violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property, to the Company's knowledge, contaminated with any substance
that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would, individually or in
the aggregate, have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim.
(xix) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent preliminary
prospectus), there are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or any of
their respective properties that, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement; and except as disclosed in the Prospectus (or,
if the Prospectus is not in existence, the most recent preliminary
prospectus), to the Company's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
(xx) The Company and each of its subsidiaries have filed, or
have obtained appropriate extensions for, all material federal, state,
foreign and local tax returns which have been required to be filed and
has paid all taxes indicated by said returns and all assessments
received by any of them to the extent that such taxes have become due,
except for any such assessments or taxes that are currently being
contested in good faith or as otherwise described in the Prospectus
(or, if the Prospectus is not in existence, the most recent
preliminary prospectus) and for which adequate reserves have been
made. All federal and state tax liabilities are adequately provided
for on the books of the Company.
(xxi) The Company and each of its subsidiaries maintain
insurance of the types and in amounts which they reasonably believe to
be adequate for their business and as are customary for companies in
the same or similar business, all of which insurance is in full force
and effect.
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(xxii) Neither the Company nor, to the Company's knowledge, any
of its officers, directors or affiliates (within the meaning of the
Rules and Regulations) has taken, directly or indirectly, any action
designed to or that 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 Offered Securities or
otherwise.
(xxiii) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that: (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets (including, without limitation,
inventory); (iii) access to assets (including, without limitation,
inventory) is permitted only in accordance with management's general
or specific authorizations; and (iv) the recorded accountability for
assets (including, without limitation, inventory) is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxiv) Deloitte & Touche LLP and PricewaterhouseCoopers LLP,
each of whom has certified certain of the financial statements filed
with the Commission as part of the Prospectus (or, if the Prospectus
is not in existence, the most recent preliminary prospectus), are
independent public accountants as required by the Act and the Rules
and Regulations.
(xxv) The financial statements included in each Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent preliminary prospectus) present fairly the
financial position of the Company and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis, except with respect to the
unaudited interim financial statements as noted therein, and the
schedules, if any, included in each Registration Statement present
fairly the information required to be stated therein.
(xxvi) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent preliminary
prospectus), since the date of the latest audited financial statements
included in the Prospectus (or, if the Prospectus is not in existence,
the most recent preliminary prospectus) there has been no material
adverse change, nor, to the knowledge of the Company, any development
or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole; and,
except as disclosed in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent preliminary
prospectus), there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(xxvii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus (or, if the Prospectus
is not in existence, the most recent preliminary prospectus), will not
be an "investment company" as defined in the Investment Company Act of
1940.
(xxviii) Except as otherwise disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent preliminary
prospectus) or as would not result in a Material Adverse Effect, the
Company is not aware that any specific computer system or program used
by the Company will fail to operate with dates after December 31,
1999.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, the several Underwriters that:
7
(i) Such Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder, the several Underwriters
will acquire valid and unencumbered title to the Offered Securities to
be delivered by such Selling Stockholder on such Closing Date.
(ii) Such Selling Stockholder has reviewed the Registration
Statements and the Prospectus (or, if the Prospectus is not in
existence, the most recent preliminary prospectus), and nothing has
come to such Selling Stockholder's attention that would lead such
Selling Stockholder to believe that, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement included
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; (B) on the Effective Date of the
Additional Registration Statement (if any), any Registration Statement
included, or will include, any untrue statement of a material fact and
omitted, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, any Registration
Statement and the Prospectus included, or will include, any untrue
statement of a material fact or omitted, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading. Such
Selling Stockholder has reviewed the Initial Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the
most recent preliminary prospectus), and nothing has come to such
Selling Stockholder's attention that would lead such Selling
Stockholder to believe that, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in the light of
the circumstances under which they were made) not misleading. With
respect to each of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Trust and the ▇▇▇▇ ▇. ▇▇▇▇
Trust, the two preceding sentences shall apply only to the extent that
any statements in or omissions from a Registration Statement or the
Prospectus are based on written information furnished to the Company
by or on behalf of such Selling Stockholder specifically for use
therein.
(iii) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent preliminary
prospectus), there are no contracts, agreements or understandings
between such Selling Stockholder and any person that would give rise
to a valid claim against such Selling Stockholder or any Underwriter
for a brokerage commission, finder's fee or other like payment in
connection with this offering.
(iv) This Agreement has been duly executed and delivered by
such Selling Stockholder.
(v) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated by such
Selling Stockholder will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
8
statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over such Selling Stockholder or
any of its or his properties or any agreement or instrument to which
such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the properties of such Selling
Stockholder is subject.
(vi) Such Selling Stockholder has duly executed and
delivered, in the form heretofore furnished to the Representatives, a
Power of Attorney and Custody Agreement with ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ as attorneys-in-fact (the "ATTORNEYS-IN-FACT") and the
Company, as custodian (the "CUSTODIAN"); the Custodian is authorized
to deliver the Offered Securities to be sold by such Selling
Stockholder hereunder and to accept payment therefor; and each of the
Attorneys-in-Fact is authorized to execute and deliver this Agreement
and any certificate that may be required hereunder on behalf of such
Selling Stockholder, to sell, assign and transfer to the Underwriters
the Offered Securities to be sold by such Selling Stockholder
hereunder, to determine the purchase price to be paid by the
Underwriters to such Selling Stockholder, to authorize the delivery of
the Offered Securities to be sold by such Selling Stockholder
hereunder, to accept payment therefor, and otherwise to act on behalf
of such Selling Stockholder in connection with this Agreement.
(vii) Certificates for all of the Offered Securities to be
sold by such Selling Stockholder pursuant to this Agreement, in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with
irrevocable conditional instructions to deliver such Offered
Securities to the Underwriters pursuant to this Agreement.
(viii) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that 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 Offered Securities or otherwise.
(ix) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by such Selling Stockholder for the
consummation of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities, except such as
have been or will be obtained or made under the Act and such as may be
required under state securities laws.
(x) There are no affiliations or associations between any
member of the National Association of Securities Dealers, Inc. and
such Selling Stockholder, except as set forth in the Prospectus (or,
if the Prospectus is not in existence, the most recent preliminary
prospectus) or as otherwise disclosed in writing to the
Representatives.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agrees, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $________ per share, that
number of Firm Securities (rounded up or down, as determined by Credit Suisse
First Boston Corporation ("CSFBC") in its discretion, in order to avoid
fractions) obtained by multiplying 2,500,000 Firm Securities in the case of the
Company and the number of Firm Securities set forth opposite the name of such
Selling Stockholder on Schedule A hereto, in the case of a Selling Stockholder,
----------
in each case by a fraction the numerator of which is the number of Firm
Securities set forth opposite the name of such Underwriter on Schedule B hereto
----------
and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with the Custodian. Each
Selling Stockholder agrees that the shares represented by the certificates held
in custody for the
9
Selling Stockholders under such Custody Agreements are subject to the interests
of the Underwriters hereunder, that the arrangements made by the Selling
Stockholders for such custody are to that extent irrevocable, and that the
obligations of the Selling Stockholders hereunder shall not be terminated by
operation of law, whether by the death of any individual Selling Stockholder or
the occurrence of any other event, or in the case of a trust, by the death of
any trustee or trustees or the termination of such trust. If any individual
Selling Stockholder or any such trustee or trustees should die, or if any other
such event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had
not occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to CSFBC drawn to the order of
the Company in the case of 2,500,000 Firm Securities and the Company as
Custodian in the case of 250,000 Firm Securities, at the office of ▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, at 10:00 A.M., New York time, on ___________________,
or at such other time not later than seven full business days thereafter as
CSFBC and the Company determine, such time being herein referred to as the
"FIRST CLOSING DATE". The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests and will be made available for checking and
packaging at the above office at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Company and the Selling Stockholders agree, severally and
not jointly, to sell to the Underwriters, and each Underwriter agrees, severally
and not jointly, to purchase from the Company and each Selling Stockholder, at a
purchase price of $_________ per share, the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities specified
in such notice by a fraction the numerator of which is 206,250 in the case of
the Company and the number of shares set forth opposite the names of such
Selling Stockholders on Schedule A hereto under the caption "Number of Optional
----------
Securities to be Sold" in the case of the Selling Stockholders and the
denominator of which is the total number of Optional Securities (subject to
adjustment by CSFBC to eliminate fractions). Such Optional Securities shall be
purchased from the Company and each Selling Stockholder for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by CSFBC to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall
be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFBC to the Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company, in its
individual capacity and in its capacity as the Custodian, will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Company in the case of up to 206,250 Optional Securities and
the Company as Custodian in the case of up to 206,250 Optional Securities at the
above office. The certificates for the Optional Securities being purchased on
each Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC requests
10
upon reasonable notice prior to such Optional Closing Date and will be made
available for checking and packaging at the above office at a reasonable time in
advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company and each of the Selling Stockholders (with respect to the last sentence
of each of subsection (e) and subsection (k)) severally agrees with the several
Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement. The Company will advise CSFBC promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to register
a portion of the Offered Securities under the Act but the Effective Time
thereof has not occurred as of such execution and delivery, the Company
will file the additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on
the date of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make such
filing at such later date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as filed
or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent; and the
Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
11
(e) The Company will furnish to the Representatives copies of each
Registration Statement (five of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other such
documents shall be so furnished as soon as available. The Company and the
Selling Stockholders will pay the expenses of printing and distributing to
the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution; provided, however, that the Company shall
-------- -------
not be obliged to file any general consent to service of process or to
qualify as a foreign corporation or as a securities dealer in any
jurisdiction or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as CSFBC
may reasonably request.
(h) For a period of 90 days after the Effective Date of the Initial
Registration Statement, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any
additional shares of Common Stock or securities convertible into or
exchangeable or exercisable for any shares of Common Stock, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of CSFBC, except issuances of
shares of Common Stock pursuant to the conversion or exchange of
convertible or exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date hereof, grants of stock
options and other rights pursuant to the terms of a plan in effect on the
date hereof, or issuances of shares of Common Stock pursuant to the
exercise of such options or other rights.
(i) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and such Selling Stockholders under this
Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and the printing of memoranda relating thereto, for the filing
fee incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review by the National Association
of Securities Dealers, Inc. of the Offered Securities, for any travel
expenses of the Company's officers and employees and any other expenses of
the Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities, for any transfer taxes on
the sale by the Selling Stockholders of the Offered Securities to the
Underwriters and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
(j) The Company will use the net proceeds received by it from the
sale of the Offered Securities in the manner specified in the prospectus
under "Use of Proceeds".
(k) Each Selling Stockholder agrees, for a period of 90 days after
the Effective Date of the Initial Registration Statement, not to (i) offer,
sell, contract to sell, pledge or otherwise dispose of,
12
directly or indirectly, any additional shares of the Securities of the
Company or securities convertible into or exchangeable or exercisable for
any shares of Securities (other than a bona fide gift, provided that the
donee thereof agrees to be bound by this restriction), or (ii) publicly
disclose the intention to make any such offer, sale, pledge or disposition,
in each case without the prior written consent of CSFBC.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein at and
as of such Closing Date, to the accuracy of the statements of Company officers
made pursuant to the provisions hereof at and as of such Closing Date, to the
performance by the Company and the Selling Stockholders of their obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received letters, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the Initial Registration
statement to be filed shortly prior to such Effective Time), of Deloitte &
Touche LLP and PricewaterhouseCoopers LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to the
effect that:
(i) in their opinion the financial statements and schedules
examined by them and included or incorporated by reference in the
Registration Statements comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) the unaudited consolidated net sales, net income and
net income per share amounts for the nine-month periods ended
September 30, 1998 and 1999 included in the Prospectus do not
agree with the amounts set forth in the unaudited consolidated
financial statements for those same periods or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited statements of income;
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not
more than three business days prior to the date of such letter,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated
13
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated total current assets or total assets, as compared
with amounts shown on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year, in consolidated net sales or in the
total or per share amounts of consolidated net income;
except in all cases set forth in this clause (iii) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letters; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution and
delivery, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement and the Additional Registration Statement as proposed to be filed
or as proposed to be amended by the post-effective amendment to be filed
shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall mean the
prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration Statements
for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFBC. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Prospectus
is printed and distributed to any Underwriter, or shall have occurred at
such later date as shall have been consented to by CSFBC. If the Effective
Time of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of
this Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of any Selling Stockholder, the Company or the Representatives,
shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters including the Representatives, is
14
material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by U.S. Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority in
interest of the Underwriters including the Representatives, the effect of
any such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company,
to the effect that:
(i) The Company has been duly incorporated and is an existing
corporation in corporate good standing under the laws of the
Commonwealth of Massachusetts, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions listed
on Schedule I to such opinion;
(ii) Each domestic subsidiary of the Company has been duly
incorporated and is an existing corporation in corporate good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and each domestic subsidiary
of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions listed on
Schedule I to such opinion; all of the issued and outstanding capital
stock of each domestic subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each domestic subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects, except for such liens granted under the bank
credit facility of the Company described in the Prospectus;
(iii) The authorized capital stock of the Company is as set
forth under the caption "Capitalization" in the Prospectus; the issued
and outstanding shares of Common Stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with respect
to shares of Common Stock under the Company's charter or by-laws,
Massachusetts law or any agreement or document filed as an exhibit to
a Registration Statement or as an exhibit to a document incorporated
by reference in a Registration Statement (each a "FILED AGREEMENT");
(iv) The Company has duly authorized the issuance and sale of
the Offered Securities to be sold by the Company pursuant to this
Agreement; such Offered Securities, when issued and delivered by the
Company pursuant to this Agreement, against payment of the
consideration set forth herein, will be validly issued, fully paid and
nonassessable, free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest known to such counsel and, to
the knowledge of such counsel, not in violation of any preemptive
right, co-sale right, right of first refusal or similar right; and
such Offered Securities conform to the description thereof contained
in the Prospectus;
15
(v) There are no contracts, agreements or understandings
known to such counsel between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statements or in any securities being registered pursuant
to any other registration statement filed by the Company under the Act
which have not been duly satisfied or waived in connection with the
sale of the Offered Securities as contemplated hereby;
(vi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the
sale of the Offered Securities, except such as have been obtained and
made under the Act and such as may be required under state securities
laws;
(vii) The execution, delivery and performance of this
Agreement, and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any domestic subsidiary, pursuant
to any statute, rule, regulation or, to the knowledge of such counsel,
order of any governmental agency or body or any court having
jurisdiction over the Company or any domestic subsidiary of the
Company or any of their properties (except that such counsel need
express no opinion as to state securities laws) or the charter or by-
laws of the Company or any such domestic subsidiary, or except as
would not, individually or in the aggregate, have a Material Adverse
Effect, any Filed Agreement;
(viii) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the knowledge of such counsel,
no stop order suspending the effectiveness of a Registration Statement
or any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Act, and each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; in connection
with the preparation of the Registration Statements and the
Prospectus, such counsel has participated in conferences with officers
and representatives of the Company, the Underwriters, counsel for the
Underwriters and the independent accountants of the Company, at which
conferences such counsel made inquiries of such persons and others and
discussed the contents of the Registration Statements and the
Prospectus, and that, while the limitations inherent in the
verification of factual matters and the character of determinations
involved in the registration process are such that such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statements or the Prospectus, subject to the foregoing
and based on such participation, inquiries and discussions, such
counsel have no reason to believe that any part of a Registration
Statement or any amendment thereto, as of its effective date (but
after giving effect to changes incorporated pursuant to Rule 430A
under the Act) or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any amendment or
supplement thereto, as of its date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were
16
made, not misleading; the descriptions of statutes, legal and
governmental proceedings and contracts and other documents set forth
under the headings "Risk Factors--We may incur costs and liability
related to potential or pending litigation." and "Business--Legal
Proceedings" in the Prospectus, "Transactions With Related Parties" in
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 and "Certain Relationships and Related Transactions"
in the Company's Proxy Statement filed with the Commission on March
31, 1999 and in the description of the Company's Common Stock
incorporated by reference from the Registration Statement on Form 8-A
filed by the Company, insofar as the statements included therein
constitute a summary are accurate summaries and fairly present in all
material respects the information required to be shown; such counsel
do not know of any legal or governmental proceedings required to be
described in a Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a character
required to be described in a Registration Statement or the Prospectus
or to be filed as exhibits to, or incorporated by reference in, a
Registration Statement which are not so described, filed or
incorporated by reference as required; and the documents incorporated
by reference in the Prospectus, when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
promulgated by the Commission thereunder; it being understood that
such counsel need express no opinion as to the financial statements,
including the notes and schedules thereto, or other accounting,
statistical and financial data contained in the Registration
Statements or the Prospectus, or written information furnished to the
Company by any Underwriter through the Representatives specifically
for use in the Registration Statement or the Prospectus, it being
understood and agreed that the only such information is that described
as such in Section 7(c) hereof;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company; and
(x) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(e) The Representatives shall have received the opinion contemplated
in the Irrevocable Power of Attorney of Selling Stockholder executed and
delivered by each Selling Stockholder and an opinion, dated such Closing
Date, of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Selling
Stockholders, to the effect that:
(i) To the knowledge of such counsel, each Selling
Stockholder has full right, power and authority to sell, assign,
transfer and deliver the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date hereunder; and upon delivery
of and payment for the Offered Securities on such Closing Date, the
several Underwriters (assuming that they take for value without notice
of any adverse claim within the meaning of Section 8-102 of the
Uniform Commercial Code as in effect in the Commonwealth of
Massachusetts) will acquire all rights of the Selling Stockholder to
the Offered Securities to be delivered by such Selling Stockholder on
such Closing Date, free and clear of all claims, liens, encumbrances
and security interests whatsoever;
(ii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by any Selling Stockholder for the consummation
of the transactions contemplated by the Custody Agreement or this
Agreement in connection with the sale of the Offered Securities sold
by such Selling Stockholder, except such as have been obtained and
made under the Act and such as may be required under state securities
laws;
17
(iii) The execution, delivery and performance of the Custody
Agreement and this Agreement and the consummation of the transactions
therein and herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or, to the knowledge
of such counsel, order of any governmental agency or body or any court
having jurisdiction over any Selling Stockholder or any of its or his
properties or any agreement or instrument known to such counsel to
which any Selling Stockholder is a party or by which any Selling
Stockholder is bound or to which any of the properties of any Selling
Stockholder is subject;
(iv) The Power of Attorney and related Custody Agreement with
respect to each Selling Stockholder has been duly authorized, executed
and delivered by such Selling Stockholder and constitute valid and
legally binding obligations of each such Selling Stockholder
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(v) This Agreement has been duly authorized, executed and
delivered by each Selling Stockholder.
(f) The Representatives shall have received from ▇▇▇▇▇▇▇, Procter &
▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholders and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
their knowledge after reasonable investigation, shall state on behalf of
the Company that: the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing Date; the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, are contemplated by the
Commission; the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant
to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter; and, subsequent
to the date of the most recent financial statements in the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(h) The Representatives shall have received a certificate, dated such
Closing Date, of an Attorney-in-Fact on behalf of each Selling Stockholder,
in which such Attorney-in-Fact, to their knowledge after reasonable
investigation, shall state on behalf of the Company that: the
representations and warranties of such Selling Stockholder in this
Agreement are true and correct on and as of the Closing Date; and such
Selling Stockholder has complied with all agreements and satisfied all
conditions on its or his part to be performed or satisfied hereunder at or
prior to such Closing Date.
(i) The Representatives shall have received a letter, dated such
Closing Date, which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to such Closing Date for the
purposes of this subsection.
18
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any
-------- -------
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in subsection (c) below; and provided further that with respect to any
-------- -------
untrue statement or alleged untrue statement in or omission or alleged
omission from any preliminary prospectus, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Underwriter
from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that
a prospectus relating to such Offered Securities was required to be
delivered by such Underwriter under the Act in connection with such
purchase and any such loss, claim, damage or liability of such Underwriter
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 Offered Securities
to such person, a copy of the Prospectus (exclusive of material
incorporated by reference) if the Company had previously furnished copies
thereof to such Underwriter.
(b) Each of the Selling Stockholders, severally and not jointly, will
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person who controls such Underwriter within the meaning
of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) in the case of each Selling Stockholder other than the
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Trust and the ▇▇▇▇ ▇. ▇▇▇▇ Trust, any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading or (ii) in the case of each Selling Stockholder, any breach of
any representation, warranty, covenant or agreement of such Selling
Stockholder in this Agreement, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
-------- -------
the Selling Stockholders will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by
19
any Underwriter consists of the information described as such in subsection
(c) below; and provided further that with respect to any untrue statement
-------- -------
or alleged untrue statement in or omission or alleged omission from any
preliminary prospectus, the indemnity agreement contained in this
subsection (b) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities
purchased the Offered Securities concerned, to the extent that a prospectus
relating to such Offered Securities was required to be delivered by such
Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter 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 Offered Securities to such person, a copy
of the Prospectus (exclusive of material incorporated by reference) if the
Company had previously furnished copies thereof to such Underwriter.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act,
and each Selling Stockholder against any losses, claims, damages or
liabilities to which the Company or such Selling Stockholder may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company
and each Selling Stockholder in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the last paragraph at
the bottom of the cover page of the Prospectus concerning the terms of the
offering by the Underwriters, the table set forth immediately below the
first paragraph under the caption "Underwriting", the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting", and the information in the ninth paragraph under the
caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b) or (c) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a), (b) or (c) above,
except and to the extent the indemnifying party is materially and adversely
prejudiced as a result of such omission. In case any such action is
brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action and (ii) does not include a statement as
to, or an admission of, fault, culpability or a failure to act by or on
behalf of an indemnified party.
20
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, the Selling
Stockholders as a group and the Underwriters from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company, the Selling Stockholders as a group
and the Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits received by
the Company, the Selling Stockholders as a group and the Underwriters shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company or the Selling
Stockholders as a group, as the case may be, bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim
which is the subject of this subsection (e). Notwithstanding the provisions
of this subsection (e), (i) no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) in the
event a Selling Stockholder's contribution liability hereunder would exceed
the amount provided in subsection (g) for such Selling Stockholder but for
the provisions thereof, the Company shall contribute the full amount of
such excess and such Selling Stockholder shall have no liability for such
excess amount. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls (within the
meaning of the Act) any Underwriter and the obligations of the Underwriters
under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of
the Company who has signed a Registration Statement and to each person, if
any, who controls (within the meaning of the Act) the Company or any of the
Selling Stockholders within the meaning of the Act.
(g) The liability of each Selling Stockholder for breach of any
representation, warranty, agreement or covenant in this Agreement and under
the indemnification and contribution provisions under this Section 7 shall
not exceed the gross proceeds received by such Selling Stockholder from the
Underwriters in connection with the sale of Offered Securities sold by such
Selling Stockholder hereunder. Except in the case of claims based on fraud
or seeking equitable relief, the sole and exclusive remedy for breach of
any representation, warranty, agreement or covenant in this Agreement shall
be limited to the indemnification and contribution provisions of this
Section 7. The Company and the Selling Stockholders may agree, as among
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of liability for which they shall
each be responsible.
21
(h) In the event that any Underwriter is entitled to indemnification
or contribution from the Company under this Section 7, such Underwriter
shall first obtain recovery, to the extent recoverable, against the Company
for such indemnification or contribution prior to taking any action against
the Selling Stockholders under this Section 7; provided that such
--------
Underwriter shall not be required to delay acting against any Selling
Stockholder if such delay would prejudice such Underwriter's rights under
this Agreement.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any non-
defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
--------
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(d), the Company and the Selling
Stockholders will, jointly and severally, reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Investment Banking Department --
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer, or, if sent to the Selling Stockholders or
any of them, will be mailed, delivered or telegraphed and confirmed to c/o ▇▇▇▇
▇. ▇▇▇▇, ACT Manufacturing, Inc., ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; provided,
--------
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
-------
delivered or telegraphed and confirmed to such Underwriter.
22
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. ▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ will act for the Selling Stockholders in connection with such
transactions, and any action under or in respect of this Agreement taken by ▇▇▇▇
▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as Attorneys-in-Fact will be binding upon all the
Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
15. The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
[Reminder of Page Intentionally Left Blank]
23
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ O'Rear
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Trust
▇▇▇▇ ▇. ▇▇▇▇ Trust
By:
-----------------------------------
Attorney-in-Fact
ACT MANUFACTURING, INC.
By:
-----------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC WORLD MARKETS CORP.
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
▇.▇. ▇▇▇▇▇▇▇▇ & CO.
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
----------------------------------------
Name:
Title:
24
SCHEDULE A
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER TO BE SOLD BE SOLD
------------------- ------------------ ---------------
▇▇▇▇ ▇. ▇▇▇▇ 217,500 83,250
▇▇▇▇▇ ▇. ▇▇▇ 32,500 13,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 0 20,000
▇▇▇▇ O'Rear 0 20,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 0 20,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Trust 0 25,000
▇▇▇▇ ▇. ▇▇▇▇ Trust 0 25,000
------- -------
Total.................. 250,000 206,250
======= =======
SCHEDULE B
NUMBER OF FIRM SECURITIES TOTAL
TO BE SOLD BY NUMBER OF
------------------------ FIRM SECURITIES
SELLING TO BE
UNDERWRITER COMPANY STOCKHOLDERS PURCHASED
----------- ------- ------------ --------------
Credit Suisse First Boston Corporation............
CIBC World Markets Corp...........................
▇▇ ▇▇▇▇▇ Securities Corporation...................
▇.▇. ▇▇▇▇▇▇▇▇ & Co................................
--------- ------- ---------
Total........................................... 2,500,000 250,000 2,750,000
========= ======= =========
SCHEDULE C
ACT Manufacturing Securities Corp.
Advanced Component Technologies Limited
CMC Industries, Inc.
CMC Inmuebles, S.A. de C.V.
CMC Industrias ▇▇▇▇▇▇▇▇▇▇, ▇.▇. de C.V.
Servicos y Administracion de Sonora, S.A. de C.V.
CMC Industries, Inc. Taiwan Branch (U.S.A.)