EXHIBIT 1.2
3,100,000 SHARES
▇▇▇▇▇▇▇▇'▇ INC.
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
DATED SEPTEMBER 19, 2003
September 19, 2003
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
McDonald Investments Inc.
JMP Securities LLC
Wedbush ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. Inc.
c/o Thomas ▇▇▇▇▇▇ Partners LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Introduction. ▇▇▇▇▇▇▇▇'▇ Inc., a Delaware corporation (the "COMPANY"),
proposes to sell to ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC, McDonald Investments Inc., JMP
Securities LLC, Wedbush ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. Inc (the
"UNDERWRITERS") an aggregate of 3,100,000 shares (the "FIRM SHARES") of the
Class A common stock, par value $0.01 per share, of the Company (the "CLASS A
COMMON STOCK"), and, at the election of the Underwriters, up to 465,000
additional shares of Class A Common Stock to cover over-allotments (the
"ADDITIONAL SHARES"; the Additional Shares, together with the Firm Shares,
hereinafter collectively referred to as the "SHARES").
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
1.1. Effective Registration Statement. A registration statement on
Form S-3 (Reg. No. 333-76072), including a base prospectus, relating to the
Shares has been prepared by the Company, has been filed with the Securities and
Exchange Commission (the "COMMISSION") and has become effective. As used in this
Agreement, (a) "REGISTRATION STATEMENT" means such registration statement
(including all documents incorporated therein by reference filed under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), as amended at
the date of this Agreement; (b) the "BASE PROSPECTUS" means the prospectus
(including all documents incorporated therein by reference filed under the
Exchange Act) included in the Registration Statement; (c) the "PROSPECTUS
SUPPLEMENT" means any preliminary prospectus supplement and any prospectus
supplement (including in each case all documents incorporated therein by
reference filed under the Exchange Act) specifically relating to the Shares, as
filed with the SEC pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "SECURITIES ACT"); and (d) the "PROSPECTUS" means the Base
Prospectus together with any applicable Prospectus Supplement. The Commission
has not issued any order preventing or suspending the use of the Prospectus. All
references in this Agreement to the Registration Statement, the Base Prospectus,
the Prospectus, any Prospectus Supplement, or any amendments or supplements to
any of the foregoing, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("▇▇▇▇▇") under the Exchange Act.
1.2. Contents of Registration Statement. (i) The Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act, and the applicable
rules and regulations of the Commission thereunder (the "RULES AND REGULATIONS")
and (iii) the
1
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in the Registration Statement or the Prospectus based upon information furnished
to the Company in writing by such Underwriter through you expressly for use
therein.
1.3. Exchange Act Compliance. The documents incorporated or deemed
to be incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act, and, when read
together with the other information in the Prospectus, at the time the
Registration Statement and any amendments thereto become effective and at the
Closing Date (as hereunder defined) and the Option Closing Date (as hereunder
defined), as the case may be, will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
1.4. Due Incorporation. The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
1.5. Subsidiaries. Each subsidiary of the Company has been duly
incorporated or formed and is validly existing as a corporation, limited
partnership, general partnership, or limited liability company in good standing
under the laws of the jurisdiction in which it is chartered or organized and has
the corporate or partnership power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. All of the issued shares of capital stock of
each subsidiary of the Company that is a corporation have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims. Except as set forth on Schedule B, each subsidiary of the
Company that is a partnership or limited liability company is managed and
controlled by the Company or one of its direct or indirect wholly-owned
subsidiaries, and the Company or one of its direct or indirect wholly-owned
subsidiaries owns the partnership or membership interests in each such
subsidiary, free and clear of all liens, encumbrances, equities or claims. The
subsidiaries listed on Schedule B hereto are the only subsidiaries of the
Company. Except as set forth on Schedule B, the Company owns no beneficial
interest, directly or indirectly, in any corporation, partnership, joint venture
or other business entity.
1.6. Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company, and is a valid and binding
agreement of the Company, enforceable in accordance with its terms, except as
rights to indemnification hereunder may be limited by applicable law and except
as the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles.
1.7. Description of Capital Stock. The authorized capital stock of
the Company conforms as to legal matters to the description thereof contained in
the Prospectus.
2
1.8. Authorized Stock. The shares of Class A Common Stock and of
Class B common stock, par value $0.01 per share (the "CLASS B COMMON STOCK"),
outstanding have been duly authorized and are validly issued, fully paid and
non-assessable. No preemptive rights of stockholders exist with respect to any
of the Shares that have not been satisfied or waived. Except as disclosed in the
Prospectus, there are no outstanding (i) securities or obligations of the
Company or any of its subsidiaries convertible into or exchangeable for any
capital stock or other equity interest of the Company or any such subsidiary,
(ii) warrants, rights or options to subscribe for or purchase from the Company
or any such subsidiary any such capital stock, other equity interest, or
convertible or exchangeable securities or obligations, or (iii) obligations of
the Company or any such subsidiary to issue any such shares of capital stock,
other equity interest, convertible or exchangeable securities or obligations, or
warrants, rights or options.
1.9. No Conflict and No Consent Required. The execution and delivery
by the Company of, and the performance by the Company of its obligations under,
this Agreement will not contravene any provision of applicable law or the
certificate of incorporation or bylaws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except such
as may be required by the Securities Act, the National Association of Securities
Dealers, Inc. (the "NASD") or the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares. The Company meets
the requirements for exemption from filing set forth in Rule 2710(b)(7)(C)(i) of
the NASD Manual.
1.10. Financial Statements. The historical consolidated financial
statements, including the related notes, of the Company and its subsidiaries
included in the Registration Statement and Prospectus present fairly the
financial position of such entities as of the dates indicated and the results of
operations and cash flows for such entities for the periods specified, all in
conformity with generally accepted accounting principles applied on a consistent
basis. The financial statement schedules included in the Registration Statement
and the amounts in the Prospectus under the captions "Summary -- Summary
Financial and Operating Data" and "Selected Consolidated Financial Data" fairly
present the information shown therein and have been compiled on a basis
consistent with the financial statements included in the Registration Statement
and the Prospectus. The unaudited pro forma financial information (including the
related notes) included in the Prospectus complies as to form in all material
respects with the applicable accounting requirements of the Act and
appropriately reflects the consolidation of Crescent Jewelers Inc. in the
Company's historical financial statements, and management of the Company has a
reasonable basis for believing and does believe that the assumptions underlying
the pro forma adjustments are reasonable. Such pro forma adjustments have been
properly applied to the historical amounts in the compilation of the information
and such information fairly presents, with respect to such entities, the
financial position, results of operations and other information purported to be
shown therein at the respective dates and for the respective periods specified.
1.11. No Material Adverse Change. There has not occurred any
material adverse change, or, to the best knowledge of the Company, any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth or
incorporated by reference in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
1.12. Legal Proceedings; Contracts; Exhibits. There are no legal or
governmental proceedings pending or, to the best knowledge of the Company,
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described, or
3
any statutes, regulations, contracts or other documents that are required to be
described or incorporated by reference in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described or filed or incorporated as
required.
1.13. Compliance with Securities Act. The Company meets the
requirements for use of Form S-3 under the Securities Act. Each preliminary
prospectus relating to the Shares filed as part of the registration statement as
originally filed or as part of any amendment thereto, or filed pursuant to Rule
424 under the Securities Act, complied when so filed in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder.
1.14. Not an Investment Company. The Company is not and, after
giving effect to the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
1.15. Compliance with Laws. The Company and its subsidiaries (i) are
in compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions with any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, individually or in the
aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
1.16. No Environmental Costs. There are no costs or liabilities
associated with Environmental Laws (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties) affecting properties owned or leased by the Company which would,
individually or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
1.17. No Registration Rights. 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 Securities Act
with respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the Registration
Statement other than as described in the Registration Statement and as have been
waived in writing in connection with the offering contemplated hereby.
1.18. Absence of Material Changes. Subsequent to the respective
dates as of which information is given in the Registration Statement and the
Prospectus, (1) the Company and its subsidiaries have not incurred any material
liability or obligation, direct or contingent, or entered into any material
transaction not in the ordinary course of business; (2) the Company has not
purchased any of its outstanding capital stock, or declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (3) there has not been any material change
in the capital stock or other equity interests, short-term debt or long-term
debt of the Company and its subsidiaries, except in each case as described in
the Prospectus.
1.19. Compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇. The Company is in compliance
in all respects with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
(the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT") that are effective, except where any instances of
noncompliance are not reasonably likely, either individually or in the
4
aggregate, to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and the Company is actively taking steps to
ensure that it will be in compliance with other applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act upon the effectiveness of such provisions.
1.20 Good Title to Properties. The Company and its subsidiaries have
good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which are material to
the business of the Company and its subsidiaries, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries.
1.21. Intellectual Property Rights. The Company and its subsidiaries
own or possess, or can acquire on reasonable terms, all material patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to any
of the foregoing which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
1.22. No Labor Disputes. Except as disclosed in the Prospectus
Supplement, no material labor dispute with the employees of the Company or any
of its subsidiaries exists, or, to the knowledge of the Company, is imminent;
and the Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers, manufacturers or
contractors that could have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
1.23. Insurance. The Company and its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; and neither the Company nor any of its subsidiaries has any reason
to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
1.24. Governmental Permits. The Company and its subsidiaries possess
all material certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective business and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
1.25 Accounting Controls. Ernst & Young LLP, the accounting firm
which has certified the financial statements filed with or incorporated by
reference in and as a part of the Registration Statement, is an independent
public accounting firm within the meaning of the Securities Act Rules and
Regulations. Each of the Company and its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (3) access to assets is
permitted only in accordance with management's general or specific
authorization; and
5
(4) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
1.26. Listing of Class A Common Stock. The Class A Common Stock is
registered pursuant to Section 12(b) of the Exchange Act and is listed on The
New York Stock Exchange, and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Class A Common
Stock under the Exchange Act or delisting the Class A Common Stock from The New
York Stock Exchange, nor has the Company received any notification that the
Commission or The New York Stock Exchange is contemplating terminating such
registration or listing.
1.27. No Price Stabilization or Manipulation. The Company and it
subsidiaries have not taken and will not take, directly or indirectly, any
action designed to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
1.28. Disclosure Controls and Procedures.
(a) The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15(e) under the Exchange
Act) as required by Rule 13a-15(a) under the Exchange Act.
(b) The Company is not aware of (i) any significant deficiency or
material weakness in the design or operation of the Company's internal control
over financial reporting which is reasonably likely to adversely affect the
Company's ability to record, process, summarize and report financial information
or (ii) any fraud, whether or not material, that involves management or other
employees who have a significant role in the Company's internal control over
financial reporting.
(c) No change in the Company's internal control over financial
reporting occurred during or since the Company's most recent fiscal quarter that
has materially affected, or is reasonably likely to materially affect, the
Company's internal control over financial reporting.
1.29 Crescent. The acquisition of Crescent by the Company is not
"probable," as that term is used in Rule 3-05 of Regulation S-X under the
Securities Act. All information regarding Crescent that is material to the
Company, its subsidiaries and their business has been disclosed in the
Registration Statement and the Prospectus.
2. Payment and Delivery.
2.1. Purchase and Sale. Subject to the terms and conditions and in
reliance on the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of $14.2125 per
share (the "PURCHASE PRICE"), the amount of shares set forth opposite such
Underwriter's name in Schedule A hereto.
2.2. Firm Shares. Payment for the Firm Shares to be sold by the
Company shall be made to the Company in immediately available funds against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on September 24, 2003, or at
such other time on the same or such other date, not later than September 26,
2003, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "CLOSING DATE."
6
2.3. Additional Shares. On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and conditions,
the Company agrees to grant to the Underwriters a one-time option to purchase up
to 465,000 Additional Shares at the Purchase Price, for the sole purpose of
covering over-allotments in the sale of Firm Shares. The Underwriters may elect
to exercise such option by notifying the Company in writing not later than
thirty (30) days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Such date may be the same as the
Closing Date but not earlier than the Closing Date nor later than ten (10)
business days after the date of such notice. If the Underwriters exercise this
option in whole or in part, each Underwriter agrees, severally and not jointly,
to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Additional Shares to be purchased as the number of Firm
Shares set forth in Schedule A hereto opposite the name of such Underwriter
bears to the total number of Firm Shares. Payment for any Additional Shares
shall be made to the Company in immediately available funds in New York City
against delivery of such Additional Shares for the respective accounts of the
several Underwriters at 10:00 a.m., New York City time, on the date specified in
the notice described herein or at such other time on the same or on such other
date, in any event not later than October 24, 2003, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE."
2.4. Delivery of Certificates. Certificates for the Firm Shares and
Additional Shares shall be in definitive form and registered in such names and
in such denominations as you shall request in writing not later than one (1)
full business day prior to the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and Additional Shares
shall be delivered to you on the Closing Date or the Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price therefor.
3. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
3.1. Furnish Copies of Registration Statement and Prospectus. To
furnish to you, without charge, five copies of the Registration Statement
(including exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in Section
3.3 below, as many copies of the Prospectus and any supplements and amendments
thereto (including any documents incorporated or deemed incorporated by
reference therein or to the Registration Statement) as you may reasonably
request.
3.2. Notification of Amendments or Supplements. Before amending or
supplementing the Registration Statement or the Prospectus (including any
amendment or supplement through incorporation by reference of any report filed
under the Exchange Act), to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such rule.
3.3. Filings of Amendments or Supplements. If, during such period
after the first date of the public offering of the Shares in which the
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer (the "PROSPECTUS DELIVERY PERIOD"), any event shall occur
or condition exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters and to the
7
dealers (whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so that
the statements in the Prospectus, as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply
with law.
3.4. Blue Sky Laws. To endeavor to qualify the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
3.5. Earning Statement. To make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
(18) months after the effective date of the Registration Statement (as defined
in Rule 158(c) under the Securities Act), an earning statement of the Company
and its subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the rules and regulations thereunder (including, at the
option of the Company, Rule 158).
3.6. Transfer Agent. The Company shall maintain, at its expense, a
registrar and transfer agent for the Class A Common Stock.
3.7. Periodic Reporting Obligations. During the Prospectus Delivery
Period, the Company shall file, on a timely basis, with the Commission and The
New York Stock Exchange all reports and documents required to be filed under the
Exchange Act.
3.8. Exchange Act Compliance. During the Prospectus Delivery Period,
the Company will comply with all of the provisions of the Exchange Act and the
rules and regulations of the Commission thereunder, including without limitation
those relating to disclosure controls and procedures, and will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act in the manner and within the time periods required by the
Exchange Act.
3.9 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Compliance. The Company and its subsidiaries will
comply in all material respects with all effective applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
4. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the several Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the following conditions:
4.1. Effective Registration Statement. The Registration Statement
shall be effective at the time this Agreement is executed.
4.2. Prospectus Filed with Commission. The Company shall have filed
the Prospectus with the Commission in the manner and within the time period
required by Rule 424(b) under the Securities Act.
4.3. No Stop Order. No stop order suspending the effectiveness of
the Registration Statement, or any post-effective amendment to the Registration
Statement, shall be in effect and no proceedings for such purpose shall have
been instituted or threatened by the Commission.
4.4. No NASD Objection. The NASD shall have raised no objection to
the fairness and reasonableness of the underwriting terms and arrangements.
4.5. No Material Adverse Change. There shall not have occurred any
change, or any development involving a prospective change, in the condition,
financial or otherwise, or in the earnings,
8
business or operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus.
4.6. Officer's Certificate. The Underwriters shall have received on
the Closing Date a certificate, dated the Closing Date and signed by the Chief
Executive Officer or President of the Company, to the effect set forth in
Sections 4.3 and 4.5 above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct as of
the Closing Date and that the Company has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
4.7. Opinion of Company Counsel. The Underwriters shall have
received on the Closing Date an opinion of ▇▇▇▇▇▇ & Bird LLP, counsel for the
Company, dated the Closing Date, the form of which is attached hereto as Exhibit
A. The opinion shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
4.8. Opinion of General Counsel. The Underwriters shall have
received on the Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of
the Company, dated the Closing Date, the form of which is attached hereto as
Exhibit B. The opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
4.9. Opinion of Underwriters' Counsel. The Underwriters shall have
received on the Closing Date an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters, dated the Closing Date, covering the matters referred to
in Exhibit D.
4.10. Accountants' Comfort Letter. The Underwriters shall have
received, on each of the date hereof and the Closing Date, a letter dated the
date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from Ernst & Young LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; provided that the letter delivered on
the Closing Date shall use a "cut-off date" not earlier than the date hereof.
4.11. Lock-Up Agreements. The "lock-up" agreements, each
substantially in the form of Exhibit C hereto, between you and certain
stockholders, officers and directors of the Company, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing Date.
4.12. Additional Documents. On the Closing Date, the Underwriters
and counsel for the Underwriters shall have received such information, documents
and opinions as they may reasonably require for the purposes of enabling them to
pass upon the issuance and sale of the Shares as contemplated herein, or in
order to evidence the accuracy of any of the representations and warranties, or
the satisfaction of any of the conditions or agreements, herein contained.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction of each of the above conditions
on or prior to the Option Closing Date and to the delivery to you on the Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Shares and other matters related to the issuance of the Additional
Shares.
9
5. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Shares under state securities laws, if
any, and all expenses in connection with the qualification of the Shares for
offer and sale under state securities laws as contemplated by Section 3.4
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky or legal investment memorandum, if any, (iv) all
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification, if any,
of the offering of the Shares by the NASD, (v) all fees and expenses incident to
listing the Shares on The New York Stock Exchange, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of any
transfer agent, registrar or depositary, (viii) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants; provided that the Company shall pay only one-half of any expenses
related to the cost of any aircraft chartered in connection with the road show,
(ix) all expenses in connection with any offer and sale of the Shares outside of
the United States, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with offers and
sales outside of the United States, and (x) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 6 entitled "Indemnity
and Contribution", and Section 10, the Underwriters will pay all of their costs
and expenses, including travel and lodging expenses on any "road show;" provided
that the Underwriters shall pay only one-half of any expenses related to the
cost of any aircraft chartered in connection with the road show, and including
fees and disbursements of their counsel, and any advertising expenses connected
with any offers they may make.
6. Indemnity and Contribution.
6.1. Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished to the
Company in writing by such Underwriter through you expressly for use therein.
10
6.2. Indemnification by the Underwriters. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
directors of the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
6.3. Indemnification Procedures. In case any proceeding (including
any governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to this Section 6, such person
(the "INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and (ii) the fees and expenses
of more than one separate firm (in addition to any local counsel) for the
Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters and such
control persons of any Underwriters, such firm shall be designated in writing by
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners. In the case of any such separate firm for the Company,
and such directors, officers and control persons of the Company, such firm shall
be designated in writing by the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff (after all appeals have been exhausted), the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
11
6.4. Contribution Agreement. To the extent the indemnification
provided for in this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by this Section 6.4 is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in this Section 6.4 but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Shares (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective number of Shares they have purchased hereunder, and not joint.
No party shall be liable for contribution with respect to any settlement of any
losses, claims, damages or liabilities if such settlement was effected by the
party seeking contribution without the contributing party's prior written
consent. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and third
sentences of Section 6.3 above, the indemnifying party agrees that is shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
6.5. Contribution Amounts. The Company and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this Section
6 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in Section 6.4. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 6.4 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
6.6. Survival of Provisions. The indemnity and contribution
provisions contained in this Section 6 and the representations, warranties and
other statements of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
12
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter, or the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
7. Effectiveness. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company if (a) after the execution and delivery of
this Agreement and prior to the Closing Date, (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of The
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York or California shall have been declared by either federal
or New York or California state authorities or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis that, in your judgment, is material and adverse, (v) in
the reasonable judgment of the Underwriters, there shall have occurred any
material adverse change, or any development that could reasonably be expected to
result in a material adverse change, in the condition, financial or otherwise,
or in the earnings, business, operations or prospects, whether or not arising
from transactions in the ordinary course of business, of the Company and its
subsidiaries, taken as a whole, or (vi) there shall be any failure or refusal on
the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement or the Company shall for any reason be unable to
perform its obligations under this Agreement, and (b) in the case of any of the
events specified in Sections 8(a)(i) through 8(a)(vi), such event, individually
or together with any other such event, makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
9. Defaulting Underwriters. If, on the Closing Date or the Option
Closing Date, as the case may be, any one or more of the Underwriters shall fail
or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Shares to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Firm Shares set forth opposite their respective names in
Schedule A bears to the aggregate number of Firm Shares set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
you may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case you shall have the right to postpone the Closing Date,
but in no event for longer than seven (7) days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. If, on the Option Closing Date,
any Underwriter or Underwriters shall fail or refuse to purchase Additional
Shares and the aggregate number of Additional Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Additional
Shares to be purchased, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been
13
obligated to purchase in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
10. Reimbursement of Underwriters' Expenses. If this Agreement shall
be terminated by the Underwriters, or any of them, pursuant to Section 8(a)(ii),
8(a)(v) or 8(a)(vi) hereof, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
12. Headings; Table of Contents. The headings of the sections of
this Agreement and the table of contents have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
13. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Underwriters:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Company:
▇▇▇▇▇▇▇▇'▇ Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & Bird LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
14
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 9 hereof, and to the benefit of the officers and directors and
controlling persons referred to in Section 6, and in each case their respective
successors, and no other person will have any right or obligation hereunder. The
term "successors" shall not include any purchaser of the Shares as such from any
of the Underwriters merely by reason of such purchase.
15. Partial Unenforceability. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
17. Consent to Jurisdiction. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby ("RELATED PROCEEDINGS") may be instituted in the federal courts of the
United States of America located in the City and County of New York or the
courts of the State of New York, in each case located in the City and County of
New York (collectively, the "SPECIFIED COURTS"), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a "RELATED
JUDGMENT"), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party's address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
18. Entire Agreement. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof.
19. Amendments. This Agreement may only be amended or modified in
writing, signed by all of the parties hereto, and no condition herein (express
or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit.
20. Sophisticated Parties. Each of the parties hereto acknowledges
that it is a sophisticated business person who or which was adequately
represented by counsel during negotiations regarding the provisions hereof,
including, without limitation, the indemnification and contribution provisions
of Section 6, and is fully informed regarding said provisions. Each of the
parties hereto further acknowledges that the provisions of Section 6 hereto
fairly allocate the risks in light of the ability of the parties to investigate
the Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, any preliminary
prospectus and the Prospectus (and any amendments and supplements thereto), as
required by the Securities Act and the Exchange Act.
15
[Remainder of page intentionally left blank]
16
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇'▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
McDonald Investments Inc.
JMP Securities LLC
Wedbush ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co. Inc.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Partner
SCHEDULES
A List of Underwriters
B List of Subsidiaries
EXHIBITS
A Form of Legal Opinion of Company Counsel
B Form of Legal Opinion of General Counsel
C Form of Lock-Up Agreement
D Form of Legal Opinion of Underwriters' Counsel