Exhibit 1.1
2,825,000 SHARES
▇▇▇▇▇▇ CORPORATION
COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
February __, 2004
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
As Representatives of the several Underwriters
c/o ▇▇ ▇▇▇▇▇ Securities Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. INTRODUCTORY. ▇▇▇▇▇▇ Corporation, a Delaware corporation (the "Company"), and
the selling stockholders named in Schedule B hereto (the "Selling
Stockholders"), propose to sell, pursuant to the terms of this Agreement, to the
several underwriters named in Schedule A hereto (the "Underwriters," or, each,
an "Underwriter"), an aggregate of 2,825,000 shares of Common Stock, $.01 par
value per share (the "Common Stock"), of the Company. The aggregate of 2,825,000
shares so proposed to be sold is hereinafter referred to as the "Firm Stock".
The Company and the Selling Stockholders also propose to sell to the
Underwriters, upon the terms and conditions set forth in Section 3 hereof, up to
an additional 423,750 shares of Common Stock (the "Optional Stock"). The Firm
Stock and the Optional Stock are hereinafter collectively referred to as the
"Stock". ▇▇ ▇▇▇▇▇ Securities Corporation ("▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇ & Company, Inc.
and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC are acting as representatives of the several
Underwriters and in such capacity are hereinafter referred to as the
"Representatives."
2. (I) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to, and agrees with, the several Underwriters and the Selling
Stockholders that:
(a) A registration statement on Form S-3 (File No. 333-______) (the
"Initial Registration Statement") in respect of the Stock has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, each in
the form heretofore delivered to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Securities Act") and the rules and regulations (the "Rules and
Regulations") of the Commission thereunder, which became effective upon
filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has been filed
with the Commission; and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
2
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the Rules and Regulations, is hereinafter
called a "Preliminary Prospectus"); the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act and deemed by virtue
of Rule 430A under the Securities Act to be part of the Initial
Registration Statement at the time it was declared effective and (ii)
the documents incorporated by reference in the prospectus contained in
the Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time
such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statements"; such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Securities Act, is hereinafter
called the "Prospectus" and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment to
the Registration Statements shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statements. No document has been or will be prepared or
distributed in reliance on Rule 434 under the Securities Act. No order
preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission.
(b) The Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any amendments or
supplements to either of the Registration Statements or the Prospectus,
when they become effective or are filed with the Commission, as the
case may be, will conform) in all material respects to the requirements
of the Securities Act and the Rules and Regulations and do not and will
not, as of the applicable effective date (as to the Registration
Statements and any amendment thereto) and as of the applicable filing
date (as to the Prospectus and any amendment or supplement thereto)
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
foregoing representations and warranties shall not apply to information
contained in or omitted from the Registration Statements or the
Prospectus or any such amendment or supplement thereto in reliance
upon, and in conformity with, written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information the parties
hereto agree is limited to the Underwriters' Information (as defined in
section 16).
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects
to the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder, and none of such documents 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; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are
filed with Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement
3
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.
(d) The Company and each of its subsidiaries (as defined in Section 14)
have been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power
and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the
failure to so qualify or have such power or authority would not have,
singularly or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, business,
operations or prospects of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect"). The Company owns or controls,
directly or indirectly, only the following corporations, partnerships,
limited liability partnerships, limited liability companies,
associations or other entities: ▇▇▇▇▇▇, GmbH, ▇▇▇▇▇▇ Japan Corporation,
▇▇▇▇▇▇ Lightspeed Corporation, ▇▇▇▇▇▇ Korea, Ltd., ▇▇▇▇▇▇, Ltd.,
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇, S.A.R.L. and ▇▇▇▇▇▇, S.R.L. Other than ▇▇▇▇▇▇,
▇.▇. none of the Company's subsidiaries is either (i) a "significant
subsidiary" as defined in Regulation S-X or is (ii) material to the
Company's business when taken as a whole.
(e) This Agreement has been duly authorized executed and delivered by
the Company.
(f) The Stock to be issued and sold by the Company to the Underwriters
hereunder has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and nonassessable and free of any preemptive
or similar rights and will conform to the description thereof contained
in the Prospectus.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company, including the Stock, have been duly and validly authorized and
issued, are fully paid and non-assessable, have been issued in
compliance with federal and state securities laws, and conform to the
description thereof contained in the Prospectus. None of the
outstanding shares of Common Stock was issued in violation of any
preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights
of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any
capital stock of the Company or any of its subsidiaries other than
those accurately described in the Prospectus. The description of the
Company's stock option, stock bonus and other stock plans or
arrangements, as applicable, and the options or other rights granted
thereunder, as described in the Prospectus accurately and fairly
present the information required to be shown with respect to such
plans, arrangements, options and rights.
(h) All the outstanding shares of capital stock of each subsidiary of
the Company have been duly authorized and validly issued, are fully
paid and nonassessable and, except to the extent set forth in the
Prospectus, are owned by the Company directly or indirectly through one
or more wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party.
(i) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default or accelerate or
trigger any consequences under, any indenture, mortgage, deed of trust,
loan agreement or other agreement
4
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any violation
of the provisions of the certificate or articles of incorporation,
charter or by-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets.
(j) Except for the registration of the Stock under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state securities laws, the National Association of Securities Dealers,
Inc. and the Nasdaq National Market in connection with the purchase and
distribution of the Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby.
(k) (i) KPMG LLP, who have expressed their opinions on certain audited
financial statements and related schedules included or incorporated by
reference in the Registration Statements and the Prospectus, are
independent public accountants as required by the Securities Act and
the Rules and Regulations, and (ii) Ernst & Young LLP, who have
expressed their opinions on certain audited financial statements and
related schedules included or incorporated by reference in the
Registration Statements and the Prospectus, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(l) The financial statements, together with the related notes and
schedules, included or incorporated by reference in the Prospectus and
in each Registration Statement fairly present the financial position
and the results of operations and changes in financial position of the
Company and its consolidated subsidiaries at the respective dates or
for the respective periods therein specified. Such statements and
related notes and schedules have been prepared in accordance with
United States generally accepted accounting principles applied on a
consistent basis except as may be set forth in the Prospectus. The
financial statements, together with the related notes and schedules,
included in the Prospectus comply in all material respects with the
Securities Act and the Rules and Regulations thereunder. No other
financial statements or supporting schedules or exhibits are required
by the Securities Act or the Rules and Regulations thereunder to be
included in the Prospectus.
(m) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since such
date, there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the business, operations, general affairs,
management, prospects, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus.
(n) Except as set forth in the Prospectus, there is no legal or
governmental proceeding pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which is required to
be described in the Registration Statement or the Prospectus and is not
described therein, or which, singularly or
5
in the aggregate, if determined adversely to the Company or any of its
subsidiaries, might have a Material Adverse Effect or would prevent or
adversely affect the ability of the Company to perform its obligations
under this Agreement; and to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(o) Neither the Company nor any of its subsidiaries (i) is in violation
of its certificate or articles of incorporation, charter or by-laws,
(ii) is in default in any respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its property or assets is subject or (iii) is
in violation in any respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject except any violations or defaults which, singularly or in the
aggregate, would not have a Material Adverse Effect.
(p) The Company and each of its subsidiaries possess all licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate state, federal or
foreign regulatory agencies or bodies which are necessary or desirable
for the ownership of their respective properties or the conduct of
their respective businesses as described in the Prospectus except where
any failures to possess or make the same, singularly or in the
aggregate, would not have a Material Adverse Effect, and the Company
has not received notification of any revocation or modification of any
such license, authorization or permit and has no reason to believe that
any such license, certificate, authorization or permit will not be
renewed.
(q) Neither the Company nor any of its subsidiaries is or, after giving
effect to the offering of the Stock and the application of the proceeds
thereof as described in the Prospectus will become an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act") and the rules and regulations of
the Commission thereunder.
(r) Neither the Company nor any of its officers, directors or
affiliates has taken or will take, directly or indirectly, any action
designed or intended to stabilize or manipulate the price of any
security of the Company, or which caused or resulted in, or which might
in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the
Company.
(s) The Company and its subsidiaries own or possess the right to use
all patents, trademarks, trademark registrations, service marks,
service ▇▇▇▇ registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as
being owned by them for the conduct of their respective businesses, and
the Company is not aware of any claim to the contrary or any challenge
by any other person to the rights of the Company and its subsidiaries
with respect to the foregoing. The Company's business as now conducted
and as proposed to be conducted does not and will not infringe or
conflict with any patents, trademarks, trademark registrations, service
marks, service ▇▇▇▇ registrations, trade names, copyrights, trade
secrets, licenses or other intellectual property or franchise right of
any person. Except as described in the Prospectus, no claim has been
made against the Company alleging the infringement by the Company of
any patent, trademark, trademark registration, service ▇▇▇▇, service
▇▇▇▇ registration, trade name, copyright, trade secret, license or
other intellectual property right or franchise right of any person.
6
(t) The Company and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real or personal property which are material to the
business of the Company and its subsidiaries taken as a whole, in each
case free and clear of all liens, encumbrances, claims and defects that
may result in a Material Adverse Effect.
(u) No labor disturbance by the employees of the Company or any of its
subsidiaries exists or, to the best of the Company's knowledge, is
imminent which might be expected to have a Material Adverse Effect. The
Company is not aware that any key employee or significant group of
employees of the Company or any subsidiary plans to terminate
employment with the Company or any such subsidiary.
(v) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended from time
to time (the "Code")) or "accumulated funding deficiency" (as defined
in Section 302 of ERISA) or any of the events set forth in Section
4043(b) of ERISA (other than events with respect to which the 30-day
notice requirement under Section 4043 of ERISA has been waived) has
occurred with respect to any employee benefit plan which could have a
Material Adverse Effect; each employee benefit plan is in compliance in
all material respects with applicable law, including ERISA and the
Code; the Company has not incurred and does not expect to incur
liability under Title IV of ERISA with respect to the termination of,
or withdrawal from, any "pension plan"; and each "pension plan" (as
defined in ERISA) for which the Company would have any liability that
is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which could cause the loss of such
qualification.
(w) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind
of toxic or other wastes or other hazardous substances by, due to, or
caused by the Company or any of its subsidiaries (or, to the best of
the Company's knowledge, any other entity for whose acts or omissions
the Company or any of its subsidiaries is or may be liable) upon any of
the property now or previously owned or leased by the Company or any of
its subsidiaries, or upon any other property, in violation of any
statute or any ordinance, rule, regulation, order, judgment, decree or
permit or which would, under any statute or any ordinance, rule
(including rule of common law), regulation, order, judgment, decree or
permit, give rise to any liability, except for any violation or
liability which would not have, singularly or in the aggregate with all
such violations and liabilities, a Material Adverse Effect; there has
been no disposal, discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of any
toxic or other wastes or other hazardous substances with respect to
which the Company or any of its subsidiaries have knowledge, except for
any such disposal, discharge, emission, or other release of any kind
which would not have, singularly or in the aggregate with all such
discharges and other releases, a Material Adverse Effect.
(x) The Company and its subsidiaries each (i) have filed with all
necessary federal, state and foreign income and franchise tax returns,
(ii) have paid all federal state, local and foreign taxes due and
payable for which it is liable, and (iii) do not have any tax
deficiency or claims outstanding or assessed or, to the best of the
Company's knowledge, proposed against it which could reasonably be
expected to have a Material Adverse Effect.
(y) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and
7
the value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries.
(z) The Company and each of its subsidiaries maintains 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; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(aa) The minute books of the Company and each of its subsidiaries have
been made available to the Underwriters and counsel for the
Underwriters, and such books (i) contain a complete summary of all
meetings and actions of the board of directors (including each board
committee) and Stockholders of the Company and each of its subsidiaries
since the time of its respective incorporation through the date of the
latest meeting and action, and (ii) accurately in all material respects
reflect all transactions referred to in such minutes.
(bb) There is no franchise, lease, contract, agreement or document
required by the Securities Act or by the Rules and Regulations to be
described in the Prospectus or to be filed as an exhibit to the
Registration Statements which is not described or filed therein as
required; and all descriptions of any such franchises, leases,
contracts, agreements or documents contained in the Registration
Statements are accurate and complete descriptions of such documents in
all material respects. Other than as described in the Prospectus, no
such franchise, lease, contract or agreement has been suspended or
terminated for convenience or default by the Company or any of the
other parties thereto, and the Company has not received notice or any
other knowledge of any such pending or threatened suspension or
termination, except for such pending or threatened suspensions or
terminations that would not reasonably be expected to, singularly or in
the aggregate, have a Material Adverse Effect.
(cc) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is
required to be described in the Prospectus and which is not so
described.
(dd) No person or entity has the right to require registration of
shares of Common Stock or other securities of the Company because of
the filing or effectiveness of the Registration Statements or
otherwise, except for persons and entities who have expressly waived
such right or who have been given timely and proper notice and have
failed to exercise such right within the time or times required under
the terms and conditions of such right.
(ee) Neither the Company nor any of its subsidiaries own any "margin
securities" as that term is defined in Regulation U of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"),
and none of the proceeds of the sale of the Stock will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Securities to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board.
(ff) Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that would give
rise to a valid claim against the Company or the
8
Underwriters for a brokerage commission, finder's fee or like payment
in connection with the offering and sale of the Stock.
(gg) No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in
the Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith.
(hh) The Stock is listed on the NASDAQ Stock Market's National Market.
(ii) The Company is in compliance with all applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules and regulations promulgated
thereunder (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") that are then in effect, is
implementing the provisions thereof in accordance thereof, and is
actively taking steps to ensure that it will be in compliance with
other applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in
effect upon and at all times after the effectiveness of such
provisions.
(jj) The Company has taken all necessary actions to ensure that, upon
and at all times after the Nasdaq National Market System ("Nasdaq")
shall have approved the Stock for inclusion, it will be in compliance
with all applicable corporate governance requirements set forth in the
Nasdaq Marketplace Rules that are then in effect and is actively taking
steps to ensure that it will be in compliance with other applicable
corporate governance requirements set forth in the Nasdaq Marketplace
Rules not currently in effect upon and all times after the
effectiveness of such requirements.
(kk) Neither the Company nor any of its subsidiaries nor, to the best
of the Company's knowledge, any employee or agent of the Company or any
subsidiary, has made any contribution or other payment to any official
of, or candidate for, any federal, state or foreign office in violation
of any law or of the character required to be disclosed in the
Prospectus.
(ll) There are no transactions, arrangements or other relationships
between and/or among the Company, any of its affiliates (as such term
is defined in Rule 405 of the Securities Act) and any unconsolidated
entity, including, but not limited to, any structure finance, special
purpose or limited purpose entity that could reasonably be expected to
materially affect the Company's liquidity or the availability of or
requirements for its capital resources required to be described in the
Prospectus which have not been described as required.
(mm) There are no outstanding loans, advances (except normal advances
for business expense in the ordinary course of business) or guarantees
or indebtedness by the Company to or for the benefit of any of the
officers or directors of the Company, or any members of their immediate
families, except as disclosed in the Prospectus.
(II) REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE SELLING
STOCKHOLDERS. Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that such Selling Stockholder:
(a) Has, and immediately prior to each Closing Date (as defined in
Section 3 hereof) the Selling Stockholder will have good and valid
title to the shares of Stock to be sold by the Selling Stockholder
hereunder on such date, free and clear of all liens, encumbrances,
equities or claims; and upon delivery of such shares and payment
therefor pursuant hereto, good and valid title to such shares, free and
clear of all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
9
(b) Has duly and irrevocably executed and delivered a power of
attorney, in substantially the form heretofore delivered by the
Representatives (the "Power of Attorney"), appointing, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇ ▇▇▇▇▇▇, and each of them, as attorney-in-fact (the
"Attorneys-in-fact") with authority to execute and deliver this
Agreement on behalf of such Selling Stockholder, to authorize the
delivery of the shares of Stock to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement.
(c) Has duly and irrevocably executed and delivered a custody
agreement, in substantially the form heretofore delivered by the
Representatives (the "Custody Agreement"), with [ ] as custodian (the
"Custodian"), pursuant to which certificates in negotiable form for the
shares of Stock to be sold by such Selling Stockholder hereunder have
been placed in custody for delivery under this Agreement.
(d) Has full right, power and authority to enter into this Agreement,
the Power of Attorney and the Custody Agreement; the execution,
delivery and performance of this Agreement, the Power of Attorney and
the Custody Agreement by such Selling Stockholder and the consummation
by such Selling Stockholder of the transactions contemplated hereby and
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which such Selling Stockholder is a party or by which
the Selling Stockholder is bound or to which any of the property or
assets of the Selling Stockholder is subject, nor will such actions
result in any violation of the provisions of the certificate or
articles of incorporation, charter, by-laws, partnership agreement or
articles of partnership, as applicable, of the Selling Stockholder or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Selling
Stockholder or the property or assets of the Selling Stockholder; and,
except for the registration of the Stock under the Securities Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase and distribution
of the Stock by the Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the Custody
Agreement by such Selling Stockholder and the consummation by the
Selling Stockholder of the transactions contemplated hereby and
thereby.
(e) The Registration Statements do not, and the Prospectus and any
further amendments or supplements to the Registration Statements or the
Prospectus will not, as of the applicable effective date (as to the
Registration Statements and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The preceding
sentence applies only to the extent that any information contained in
or omitted from the Registration Statements or Prospectus was in
reliance upon and in conformity with written information furnished to
the Company by such Selling Stockholder specifically for inclusion
therein.
(f) Such Selling Stockholder has not taken, directly or indirectly, any
action designed or intended to stabilize or manipulate the price of any
security of the Company, or which caused or resulted in, or which might
reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company.
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
10
Company and each Selling Stockholder agree, 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, that number of shares of
Firm Stock (rounded up or down, as determined by ▇▇ ▇▇▇▇▇ in its discretion, in
order to avoid fractions) obtained by multiplying 1,500,000 shares of Firm
Stock, in the case of the Company, and the number of shares of Firm Stock set
forth opposite the name of such Selling Stockholder in Schedule B hereto, in the
case of a Selling Stockholder, in each case by a fraction the numerator of which
is the number of shares of Firm Stock set forth opposite the name of such
Underwriter in Schedule A hereto and the denominator of which is the total
number of shares of Firm Stock.
The purchase price per share to be paid by the Underwriters to the
Company and the Selling Stockholders for the Stock will be $_____ per share (the
"Purchase Price").
The Company and the Selling Stockholders will deliver the Firm Stock to
the Representatives for the respective accounts of the several Underwriters (in
the form of definitive certificates, issued in such names and in such
denominations as the Representatives may direct by notice in writing to the
Company given at or prior to 12:00 Noon, New York time, on the second full
business day preceding the First Closing Date (as defined below) against payment
of the aggregate Purchase Price therefor by wire transfer to an account at a
bank acceptable to ▇▇ ▇▇▇▇▇, payable to the order of the Company and the Company
as Custodian for the Selling Stockholders, all at the offices of Weil, Gotshal &
▇▇▇▇▇▇ LLP, [New York, New York] or [Boston, Massachusetts]. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder. The time and date of the delivery and closing shall be at 10:00 A.M.,
New York time, on [ _____ ], 2004, in accordance with Rule 15c6-1 of the
Exchange Act. The time and date of such payment and delivery are herein referred
to as the "First Closing Date". The First Closing Date and the location of
delivery of, and the form of payment for, the Firm Stock may be varied by
agreement among the Company, the Selling Stockholders and ▇▇ ▇▇▇▇▇.
The Company and the Selling Stockholders shall make the certificates
for the Stock available to the Representative[s] for examination on behalf of
the Underwriters in New York, New York at least twenty-four hours prior to the
First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Stock. The price
per share to be paid for the Optional Stock shall be the Purchase Price. The
Company and the Selling Stockholders agree, severally and not jointly, to sell
to the Underwriters the numbers of shares of Optional Stock according to the
following priority: (1) to the extent the written notice by ▇▇ ▇▇▇▇▇ described
below specifies a total amount of shares of Optional Stock equal to or less than
221,572, all of such shares shall be purchased from [ValueAct entity]; (2) to
the exent the written notice by ▇▇ ▇▇▇▇▇ described below specifies a total
amount of shares of Optional Stock greater than 221,572, (a) the number of
shares of Optional Stock purchased from [ValueAct entity] shall equal 221,572
and (b) the number of shares of Optional Stock purchased from the Company shall
equal the number of shares of Optional Stock in excess of 221,572 specified in
such notice; and (3) other than [ValueAct entity], no Selling Stockholders shall
sell any shares of Optional Stock.. Such shares of Optional Stock shall be
purchased for the account of each Underwriter in the same proportion as the
number of shares of Firm Stock set forth opposite such Underwriter's name bears
to the total number of shares of Firm Stock (subject to adjustment by ▇▇ ▇▇▇▇▇
to eliminate fractions). The option granted hereby may be exercised as to all or
any part of the Optional Stock at any time, and from time to time, not more than
thirty (30) days subsequent to the date of this Agreement. No Optional Stock
shall be sold and delivered unless the Firm Stock previously has been, or
simultaneously is, sold and delivered. The right to purchase the Optional Stock
or any portion thereof may be surrendered and terminated at any time upon notice
by ▇▇ ▇▇▇▇▇ to the Company and Selling Stockholders.
11
The option granted hereby may be exercised by written notice being
given to the Company and the Selling Stockholders by ▇▇ ▇▇▇▇▇ setting forth the
number of shares of the Optional Stock to be purchased by the Underwriters and
the date and time for delivery of and payment for the Optional Stock. Each date
and time for delivery of and payment for the Optional Stock (which may be the
First Closing Date, but not earlier) is herein called the "Option Closing Date"
and shall in no event be earlier than two (2) business days nor later than five
(5) business days after written notice is given. (The Option Closing Date and
the First Closing Date are herein called the "Closing Dates".)
The Company and the Selling Stockholders will deliver the Optional
Stock to the Underwriters (in the form of definitive certificates, issued in
such names and in such denominations as the Representatives may direct by notice
in writing to the Company given at or prior to 12:00 Noon, New York time, on the
second full business day preceding the Option Closing Date against payment of
the aggregate Purchase Price therefor in federal (same day) funds by certified
or official bank check or checks or wire transfer to an account at a bank
acceptable to ▇▇ ▇▇▇▇▇ payable to the order of the Company as Custodian for the
Selling Stockholder(s), all at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, New
York, New York. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each Underwriter hereunder. The Company shall make the certificates for the
Optional Stock available to the Representatives for examination on behalf of the
Underwriters in [New York, New York] [or] [Boston Massachusetts] not later than
10:00 A.M., New York Time, on the business day preceding the Option Closing
Date. The Option Closing Date and the location of delivery of, and the form of
payment for, the Optional Stock may be varied by agreement among the Company and
▇▇ ▇▇▇▇▇.
The several Underwriters propose to offer the Stock for sale upon the
terms and conditions set forth in the Prospectus.
(4) (I) FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and file such Rule
462(b) Registration Statement with the Commission on the date hereof;
prepare the Prospectus in a form approved by the Representatives and
file such Prospectus pursuant to Rule 424(b) under the Securities Act
not later than the second business day following the execution and
delivery of this Agreement; make no further amendment or any supplement
to the Registration Statements or to the Prospectus prior to the Option
Closing Date to which the Representatives shall reasonably object by
notice to the Company after a reasonable period to review; advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to either Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with
copies thereof; file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Stock; advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statements or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, use
promptly its best efforts to obtain its withdrawal.
12
(b) If at any time prior to the expiration of nine months after the
effective date of the Initial Registration Statement when a prospectus
relating to the Stock is required to be delivered any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
to comply with the Securities Act or the Exchange Act, the Company will
promptly notify the Representatives thereof and upon their request will
prepare an amended or supplemented Prospectus or make an appropriate
filing pursuant to Section 13 or 14 of the Exchange Act which will
correct such statement or omission or effect such compliance. The
Company will furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of such amended or supplemented
Prospectus; and in case any Underwriter is required to deliver a
prospectus relating to the Stock nine months or more after the
effective date of the Initial Registration Statement, the Company upon
the request of the Representatives and at the expense of such
Underwriter will prepare promptly an amended or supplemented Prospectus
as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Securities Act.
(c) To furnish promptly to each of the Representatives and to counsel
for the Underwriters a signed copy of each of the Registration
Statements as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(d) To deliver promptly to the Representatives in New York City such
number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration Statements
as originally filed with the Commission and each amendment thereto (in
each case excluding exhibits), (ii) each Preliminary Prospectus, (iii)
the Prospectus (not later than 10:00 A.M., New York time, of the
business day following the execution and delivery of this Agreement)
and any amended or supplemented Prospectus (not later than 10:00 A.M.,
New York City time, on the business day following the date of such
amendment or supplement) and (iv) any document incorporated by
reference in the Prospectus (excluding exhibits thereto).
(e) To make generally available to its stockholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings 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 (including, at the
option of the Company, Rule 158).
(f) The Company will promptly take from time to time such actions as
the Representatives may reasonably request to qualify the Stock for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Representatives may designate and to continue such
qualifications in effect for so long as required for the distribution
of the Stock; provided that the Company and its subsidiaries shall not
be obligated to qualify as foreign corporations in any jurisdiction in
which they are not so qualified or to file a general consent to service
of process in any jurisdiction.
(g) During the period of five years from the date hereof, the Company
will deliver to the Representatives and, upon request, to each of the
other Underwriters, (i) as soon as they are available, copies of all
reports or other communications furnished to Stockholders and (i) as
soon as they are available, copies of any reports and financial
statements furnished or filed with the
13
Commission pursuant to the Exchange Act or any national securities
exchange or automatic quotation system on which the Stock is listed or
quoted.
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares
of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock for a period of 90 days from the date of
the Prospectus without the prior written consent of ▇▇ ▇▇▇▇▇ other than
the Company's sale of the Stock hereunder and the issuance of shares
pursuant to employee benefit plans, qualified stock option plans or
other employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights; the
Company will cause each officer, director and Stockholder listed in
Schedule C to furnish to the Representatives, prior to the First
Closing Date, a letter, substantially in the form of Exhibit I hereto,
pursuant to which each such person shall agree not to directly or
indirectly offer, sell, assign, transfer, pledge, contract to sell, or
otherwise dispose of any shares of Common Stock or securities
convertible into or exercisable or exchangeable for Common Stock for a
period of 90 days from the date of the Prospectus, without the prior
written consent of ▇▇ ▇▇▇▇▇.
(i) The Company will supply the Representatives with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock under the
Securities Act.
(j) Prior to each of the Closing Dates the Company will furnish to the
Representatives, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company for
any periods subsequent to the periods covered by the financial
statements appearing in the Registration Statement and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any
press release or other communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial
or otherwise, or earnings, business, operations, general affairs or
prospects (except for routine oral marketing communications in the
ordinary course of business and consistent with the past practices of
the Company and of which the Representatives are notified in advance),
without the prior written consent of the Representatives, unless in the
judgment of the Company and its counsel, and after notification to the
Representatives, such press release or communication is required by
law.
(l) In connection with the offering of the Stock, until ▇▇ ▇▇▇▇▇ shall
have notified the Company of the completion of the resale of the Stock,
the Company will not, and will cause its affiliated purchasers (as
defined in Regulation M under the Exchange Act) not to, either alone or
with one or more other persons, bid for or purchase, for any account in
which it or any of its affiliated purchasers has a beneficial interest,
any Stock, or attempt to induce any person to purchase any Stock; and
not to, and to cause its affiliated purchasers not to, make bids or
purchase for the purpose of creating actual, or apparent, active
trading in or of raising the price of the Stock.
(m) The Company will not take any action prior to the Option Closing
Date which would require the Prospectus to be amended or supplemented
pursuant to Section 4(b).
(n) The Company shall at all times comply with all applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and all Nasdaq Marketplace Rules
in effect from time to time.
(o) The Company will apply the net proceeds from the sale of the Stock
as set forth in the Prospectus under the heading "Use of Proceeds".
14
(II) FURTHER AGREEMENTS OF THE SELLING STOCKHOLDERS. Each Selling
Stockholder, severally and not jointly, agrees with the several Underwriters
that:
(a) They will not directly or indirectly offer, sell, assign, transfer,
pledge, contract to sell, or otherwise dispose of any shares of Common
Stock or securities convertible into or exercisable or exchangeable for
Common Stock other than the sale of the Stock hereunder for a period of
90 days from the date of the Prospectus, without the prior written
consent of ▇▇ ▇▇▇▇▇.
(b) The shares of Stock represented by the certificates held in custody
under the Custody Agreement are for the benefit of and coupled with and
subject to the interests of the Underwriters and the other Selling
Stockholders, and that the arrangement for such custody and the
appointment of the Attorneys-in-fact are irrevocable; that the
obligations of such Selling Stockholder hereunder shall not be
terminated by operation of law, whether by the death or incapacity,
liquidation or distribution of such Selling Stockholder, or any other
event, that if such Selling Stockholder should die or become
incapacitated or is liquidated or dissolved or any other event occurs,
before the delivery of the Stock hereunder, certificates for the Stock
to be sold by such Selling Stockholder shall be delivered on behalf of
such Selling Stockholder in accordance with the terms and conditions of
this Agreement and the Custody Agreement, and action taken by the
Attorneys-in-fact or any of them under the Power of Attorney shall be
as valid as if such death, incapacity, liquidation or dissolution or
other event had not occurred, whether or not the Custodian, the
Attorneys-in-fact or any of them shall have notice of such death,
incapacity, liquidation or dissolution or other event.
(c) Such Selling Stockholder will not take, directly or indirectly, any
action designed or intended to stabilize or manipulate the price of any
security of the Company, or that might reasonably be expected to cause
or result in the stabilization or manipulation of the price of any
security of the Company.
(d) Such Selling Stockholder will deliver to ▇▇ ▇▇▇▇▇ on or prior to
the First Closing Date a properly completed and executed United States
Treasury Department Form W-8 (if the Selling Stockholder is a
non-United States person) or Form W-9 (if the Selling Stockholder is a
United States person) or such other applicable form or statement
specified by Treasury Department regulations in lieu thereof.
5. PAYMENT OF EXPENSES. The Company agrees with the Underwriter to pay (a) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Stock and any taxes payable in that connection; (b) the costs incident to
the Registration of the Stock under the Securities Act; (c) the costs incident
to the preparation, printing and distribution of the Registration Statement,
Preliminary Prospectus, Prospectus, any amendments and exhibits thereto or any
document incorporated by reference therein, the costs of printing, reproducing
and distributing the Power of Attorney, the Custody Agreement, the "Agreement
Among Underwriters" between the Representatives and the Underwriters, the Master
Selected Dealers' Agreement, the Underwriters' Questionnaire and this Agreement
by mail, telex or other means of communications; (d) the fees and expenses
(including related fees and expenses of counsel for the Underwriters) incurred
in connection with filings made with the National Association of Securities
Dealers; (e) any applicable listing or other fees; (f) the fees and expenses of
qualifying the Stock under the securities laws of the several jurisdictions as
provided in Section 4(I)(f) and of preparing, printing and distributing Blue Sky
Memoranda and Legal Investment Surveys (including related fees and expenses of
counsel to the Underwriters); (g) all fees and expenses of the registrar and
transfer agent of the Stock; and (h) all other costs and expenses incident to
the performance of the obligations of the Company and of the Selling
Stockholders under this Agreement (including, without limitation, the fees and
expenses of the Company's counsel and the Company's independent accountants);
provided that, except as otherwise provided in this Section 5 and in Section 10,
the Underwriters shall pay their own
15
costs and expenses, including the fees and expenses of their counsel, any
transfer taxes on the Stock which they may sell and the expenses of advertising
any offering of the Stock made by the Underwriters.
Each Selling Stockholder will pay all fees and expenses incident to the
performance of such Selling Stockholder's obligations under this Agreement which
are not otherwise specifically provided for herein, including but not limited to
any fees and expenses of counsel for such Selling Stockholder, such Selling
Stockholder's pro rata share of fees and expenses of the Attorneys-in-fact and
the Custodian and all expenses and taxes incident to the sale and delivery of
the Stock to be sold by such Selling Stockholder to the Underwriters hereunder.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations of the
several Underwriters hereunder are subject to the accuracy, when made and on
each of the Closing Dates, of the representations and warranties of the Company
and the Selling Stockholders contained herein, to the accuracy of the statements
of the Company and the Selling Stockholders made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder, and to each of the following
additional terms and conditions:
(a) No stop order suspending the effectiveness of either of the
Registration Statements shall have been issued and no proceedings for
that purpose shall have been initiated or threatened by the Commission,
and any request for additional information on the part of the
Commission (to be included in the Registration Statements or the
Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Representatives. The Rule 462(b)
Registration Statement, if any, and the Prospectus shall have been
timely filed with the Commission in accordance with Section 4(I)(a).
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the
Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Custody
Agreements, the Powers of Attorney, the Stock, the Registration
Statement and the Prospectus and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company and the Selling Stockholders shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Fish & ▇▇▇▇▇▇▇▇▇▇ PC shall have furnished to the Representatives
such counsel's written opinion, as counsel to the Company, addressed to
the Underwriters and dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives.
19
(e) [insert the name of counsel to the Selling Stockholders] shall have
furnished to the Representatives such counsel's written opinion, as
counsel to [ValueAct entity], addressed to the Underwriters and dated
the Closing Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) Each Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement; the execution,
delivery and performance of this Agreement, the Power
of Attorney and the Custody Agreement by each Selling
Stockholder and the consummation by each Selling
Stockholder of the transactions contemplated hereby
and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions
of, or constitute a default under, any statute, any
indenture, mortgage, deed of trust, loan agreement or
other 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 property or assets of any Selling
Stockholder is subject, nor will such actions result
in any violation of the provisions of the charter or
by-laws, partnership agreement or articles of
partnership of any Selling Stockholder or any statute
or any order, rule or regulation known to such
counsel of any court or governmental agency or body
having jurisdiction over any Selling Stockholder or
the property or assets of any Selling Stockholder;
and, except for the registration of the Stock under
the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable
state securities laws in connection with the purchase
and distribution of the Stock by the Underwriters, no
consent, approval, authorization or order of, or
filing or registration with, any such court or
governmental agency or body is required for the
execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody
Agreement by any Selling Stockholder and the
consummation by any Selling Stockholder of the
transactions contemplated hereby and thereby.
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling
Stockholder.
(iii) A Power-of-Attorney and a Custody Agreement have been
duly authorized, executed and delivered by each
Selling Stockholder and constitute valid and binding
agreements of each Selling Stockholder.
(iv) Upon payment for, and delivery of, the shares of
Stock to be sold by each Selling Stockholder under
this Agreement in accordance with the terms hereof,
the Underwriters will acquire good and valid title to
such shares, free and clear of all liens,
encumbrances, equities or claims.
(f) The Representatives shall have received from Weil, Gotshal & ▇▇▇▇▇▇
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriters may
reasonably require, and the Company and the Selling Stockholders shall
have furnished to such counsel such documents as they request for
enabling them to pass upon such matters.
(g) At the time of the execution of this Agreement, the Representatives
shall have received from (A) KPMG LLP a letter, addressed to the
Underwriters and dated such date, in form and substance satisfactory to
the Representatives (i) confirming that they are independent certified
public accountants with respect to the Company and its subsidiaries
within the meaning of the
20
Securities Act and the Rules and Regulations and (ii) stating the
conclusions and findings of such firm with respect to certain financial
statements and financial information contained or incorporated by
reference in the Prospectus and (B) Ernst & Young LLP a letter,
addressed to the Underwriters and dated such date, in form and
substance satisfactory to the Representatives (i) confirming that they
are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Securities Act
and the Rules and Regulations and (ii) stating the conclusions and
findings of such firm with respect to certain financial statements and
financial information contained or incorporated by reference in the
Prospectus.
(h) On the Closing Date, the Representatives shall have received a
letter (the "bring-down letter") from each of KPMG LLP and Ernst &
Young LLP addressed to the Underwriters and dated the Closing Date
confirming, as of the date of the bring-down letter (or, with respect
to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus
as of a date not more than three business days prior to the date of the
bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by its
letter delivered to the Representatives concurrently with the execution
of this Agreement pursuant to Section 6(g).
(i) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of its Chairman of the Board, its
Chief Executive Officer and its chief financial officer stating that
(i) such officers have carefully examined the Registration Statements
and the Prospectus and, in their opinion, the Registration Statements
as of their respective effective dates and the Prospectus, as of each
such effective date, did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) since the effective date of the Initial Registration Statement no
event has occurred which should have been set forth in a supplement or
amendment to the Registration Statements or the Prospectus, (iii) to
the best of their knowledge after reasonable investigation, as of the
Closing Date, the representations and warranties of the Company in this
Agreement are true and correct and the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, and (iv)
subsequent to the date of the most recent financial statements included
or incorporated by reference in the Prospectus, there has been no
material adverse change in the financial position or results of
operation of the Company and its subsidiaries, or any change, or any
development including a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business,
operations or prospects of the Company and its subsidiaries taken as a
whole, except as set forth in the Prospectus.
(j) Each Selling Stockholder (or the Custodian or one or more
attorneys-in-fact on behalf of the Selling Stockholders) shall have
furnished to the Representatives on the Closing Date a certificate,
dated such date, signed by, or on behalf of, the Selling Stockholder
stating that the representations, warranties and agreements of the
Selling Stockholder contained herein are true and correct as of the
Closing Date and that the Selling Stockholder has complied with all
agreements contained herein to be performed by the Selling Stockholder
at or prior to the Closing Date.
(k) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus (ii) since such
date there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change,
or any development
21
involving a prospective change, in or affecting the business,
operations, general affairs, management, prospects, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representatives, so material
and adverse as to make it impracticable or inadvisable to proceed with
the sale or delivery of the Stock on the terms and in the manner
contemplated in the Prospectus.
(l) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Stock or materially and adversely affect or
potentially materially and adversely affect the business, operations or
prospects of the Company; and no injunction, restraining order or order
of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Stock or materially and adversely
affect or potentially materially and adversely affect the business,
operations or prospects of the Company.
(m) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the Company's corporate credit
rating or the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of any of the Company's debt securities.
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange
or in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have
been suspended or minimum or maximum prices or maximum range for prices
shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities or a material
disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, (iii) the United States
shall have become engaged in hostilities, or the subject of an act of
terrorism, or there shall have been an escalation in hostilities
involving the United States, or there shall have been a declaration of
a national emergency or war by the United States or (iv) there shall
have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be
such), or other calamity or crisis that materially and adversely
affects (A) the business, operations or prospects of the Company or (B)
general economic, political or financial conditions in the United
States, as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the sale or delivery of
the Stock on the terms and in the manner contemplated in the
Prospectus.
(o) The National Market System shall have approved the Stock for
listing, subject only to official notice of issuance.
(p) ▇▇ ▇▇▇▇▇ shall have received the written agreements, substantially
in the form of Exhibit I hereto, of the officers, directors and
Stockholders of the Company listed in Schedule C to this Agreement.
22
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each of its subsidiaries, jointly and severally,
shall indemnify and hold harmless each Underwriter, its officers,
employees, representatives and agents and each person, if any, who
controls any Underwriter within the meaning of the Securities Act
(collectively the "Underwriter Indemnified Parties" and , each an
"Underwriter Indemnified Party") against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
that Underwriter Indemnified Party may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
the Preliminary Prospectus, either of the Registration Statements or
the Prospectus or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state in any Preliminary Prospectus,
either of the Registration Statements or the Prospectus or in any
amendment or supplement thereto a material fact required to be stated
therein or necessary to make the statements therein not misleading and
shall reimburse each Underwriter Indemnified Party promptly upon demand
for any legal or other expenses reasonably incurred by that Underwriter
Indemnified Party in connection with investigating or preparing to
defend or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company and its
subsidiaries shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of or is
based upon (i) an untrue statement or alleged untrue statement in or
omission or alleged omission from the Preliminary Prospectus, either of
the Registration Statements or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for use therein, which information the
parties hereto agree is limited to the Underwriters' Information (as
defined in Section 17). The Company shall cause its subsidiaries to
perform their respective obligations under this Agreement.
This indemnity agreement is not exclusive and will be in addition to
any liability which the Company and its subsidiaries might otherwise
have and shall not limit any rights or remedies which may otherwise be
available at law or in equity to each Underwriter Indemnified Party.
(b) The Selling Stockholders [, jointly and severally,] shall indemnify
and hold harmless each Underwriter Indemnified Party, against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof, to which that Underwriter Indemnified may become subject,
under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, either of the Registration
Statements or the Prospectus or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, either of the Registration Statements or the Prospectus or
in any amendment or supplement thereto a material fact required to be
stated therein or necessary to make the statements therein not
misleading but in each case only to the extent that the 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 through the Representatives by or on behalf of
the Selling Stockholder specifically for inclusion therein, and shall
reimburse each Underwriter Indemnified Party promptly upon demand for
any legal or other expenses reasonably incurred by that Underwriter
Indemnified Party in connection with investigating or preparing to
defend or defending against or appearing as a third party witness in
23
connection with any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Selling
Stockholders shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of or is
based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from the Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for use therein, which information the
parties hereto agree is limited to the Underwriters' Information. This
indemnity agreement is not exclusive and will be in addition to any
liability which the Selling Stockholders might otherwise have and shall
not limit any rights or remedies which may otherwise be available at
law or in equity to each Underwriter Indemnified Party.]
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company its officers, employees, representatives and
agents, each of its directors and each person, if any, who controls the
Company within the meaning of the Securities Act (collectively the
"Company Indemnified Parties" and each a "Company Indemnified Party")
and the Selling Stockholders, their respective officers, employees,
representatives and agents and each person, if any, who controls the
Selling Stockholders within the meaning of the Securities Act
(collectively, the "Stockholder Indemnified Parties" and each a
"Stockholder Indemnified Party"), against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
the Company Indemnified Parties or the Selling Stockholder Indemnified
Parties may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of
or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Preliminary Prospectus, either of
the Registration Statements or the Prospectus or in any amendment or
supplement thereto or (ii) 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, but in each case only to
the extent that the 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 through
the Representatives by or on behalf of that Underwriter specifically
for use therein, and shall reimburse the Company Indemnified Parties
and the Selling Stockholder Indemnified Parties for any legal or other
expenses reasonably incurred by such parties in connection with
investigating or preparing to defend or defending against or appearing
as third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided that the
parties hereto hereby agree that such written information provided by
the Underwriters consists solely of the Underwriters' Information. This
indemnity agreement is not exclusive and will be in addition to any
liability which the Underwriters might otherwise have and shall not
limit any rights or remedies which may otherwise be available at law or
in equity to the Company Indemnified Parties and Selling Stockholder
Indemnified Parties.
(d) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 7 except to the extent it has been materially prejudiced
by such failure; and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 7. If
any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that
it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
24
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that any indemnified party shall have
the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have
been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to
employ separate counsel or (iii) the indemnifying party has failed to
assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any
time for all such indemnified parties, which firm shall be designated
in writing by ▇▇ ▇▇▇▇▇, if the indemnified parties under this Section 7
consist of any Underwriter Indemnified Party, or by the Company if the
indemnified parties under this Section 7 consist of any Company
Indemnified Parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 7(a), 7(b) and 7(c), shall
use all reasonable efforts to cooperate with the indemnifying party in
the defense of any such action or claim. Subject to the provisions of
Section 7(e) below, no indemnifying party shall be liable for any
settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff
in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(e) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by this Section 7
effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the
request for reimbursement, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior
to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
(f) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
Section 7(a), 7(b) or 7(c), then each indemnifying party shall, in lieu
of indemnifying such indemnified party, contribute to the amount paid
or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company, its subsidiaries and the Selling Stockholders,
on the one hand, and the Underwriters, on the other hand, from the
offering of the Stock or 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, its
subsidiaries and the Selling Stockholders, on the one hand, and the
Underwriters, on the other hand, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
25
considerations. The relative benefits received by the Company, its
subsidiaries and the Selling Stockholders, on the one hand, and the
Underwriters, on the other hand, with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Stock purchased under this Agreement (before deducting
expenses) received by the Company, its subsidiaries and the Selling
Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Stock purchased under
this Agreement, in each case as set forth in the table on the cover
page of the Prospectus. 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,
its subsidiaries, the Selling Stockholders, on the one hand, or the
Underwriters, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission; provided that the parties
hereto agree that the written information furnished to the Company
through the Representatives by or on behalf of the Underwriters for use
in any Preliminary Prospectus, either of the Registration Statements or
the Prospectus consists solely of the Underwriters' Information. The
Company, its Subsidiaries the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contributions pursuant
to this Section 7(f) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this
Section 7(f) shall be deemed to include, for purposes of this Section
7(f), 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
7(f), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public were offered to the
public less the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any 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 Underwriters' obligations to contribute as provided in this Section
7(f) are several in proportion to their respective underwriting obligations and
not joint.
8. TERMINATION. The obligations of the Underwriters hereunder may be terminated
by ▇▇ ▇▇▇▇▇, in its absolute discretion by notice given to and received by the
Company and the Selling Stockholders prior to delivery of and payment for the
Firm Stock if, prior to that time, any of the events described in Sections 6(k),
6(m) or 6(n) have occurred or if the Underwriters shall decline to purchase the
Stock for any reason permitted under this Agreement.
9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement shall have
been terminated pursuant to Section 8 or 10, (b) the Company or any Selling
Stockholder shall fail to tender the Stock for delivery to the Underwriters for
any reason not permitted under this Agreement, or (c) the Underwriters shall
decline to purchase the Stock for any reason permitted under this Agreement the
Company and the Selling Stockholders shall reimburse the Underwriters for the
fees and expenses of their counsel and for such other out-of-pocket expenses as
shall have been incurred by them in connection with this Agreement and the
proposed purchase of the Stock, and upon demand the Company and the Selling
Stockholders shall pay the full amount thereof to the ▇▇ ▇▇▇▇▇. If this
Agreement is terminated pursuant to Section 10 by reason of the default of one
or more Underwriters, neither the Company nor any Selling Stockholder shall be
obligated to reimburse any defaulting Underwriter on account of those expenses.
26
10. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock hereunder and
the aggregate number of shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%) of the total
number of shares underwritten, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representatives and the Company for the
purchase of such shares by other persons are not made within forty-eight (48)
hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 10, (i) the Company and
the Selling Stockholders shall have the right to postpone the Closing Dates for
a period of not more than five (5) full business days in order that the Company
and the Selling Stockholders may effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus which
may thereby be made necessary, and (ii) the respective numbers of shares to be
purchased by the remaining Underwriters or substituted Underwriters shall be
taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
its liability to the Company, the Selling Stockholders or the other Underwriters
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 10 shall be without liability on the part of
any non-defaulting Underwriter, the Selling Stockholders or the Company, except
expenses to be paid or reimbursed pursuant to Sections 5 and 9 and except the
provisions of Section 7 shall not terminate and shall remain in effect.
11. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the several Underwriters, the
Company and the Selling Stockholders and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person other than the persons mentioned in the preceding sentence any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the
representations, warranties, covenants, agreements and indemnities of the
Company and the Selling Stockholders contained in this Agreement shall also be
for the benefit of the Underwriter Indemnified Parties, and the indemnities of
the several Underwriters shall also be for the benefit of the Company
Indemnified Parties and the Selling Stockholder Indemnified Parties. It is
understood that the Underwriters' responsibility to the Company is solely
contractual in nature and the Underwriters do not owe the Company, or any other
party, any fiduciary duty as a result of this Agreement.
12. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by them respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, the Selling
Stockholders, the Company or any person controlling any of them and shall
survive delivery of and payment for the Stock.
13. NOTICES. All statements, requests, notices and agreements hereunder shall be
in writing, and:
27
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ▇▇ ▇▇▇▇▇ Securities Corporation Attention:
Equity Capital Markets (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy to the same
address, Attention: Legal Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to ▇▇▇▇▇▇ Corporation Attention: Chief Executive
Officer (Fax: _________),with copies to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Fish &
▇▇▇▇▇▇▇▇▇▇ P.C., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (Fax:
▇▇▇-▇▇▇-▇▇▇▇);
(c) if to any Selling Stockholders, shall be delivered or sent by mail,
telex or facsimile transmission to such Selling Stockholder at the
address set forth on Schedule B hereto; provided, however, that any
notice to an Underwriter pursuant to Section 7 shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at
its address set forth in its acceptance telex to the Representatives,
which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
14. DEFINITION OF CERTAIN TERMS. For purposes of this Agreement, (a) "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the Underwriters' Information consists
solely of the following information in the Prospectus: (i) the last paragraph on
the front cover page concerning the terms of the offering by the Underwriters;
and (ii) the statements concerning the Underwriters contained in the [insert
references to appropriate paragraphs] under the heading "Underwriting."
17. AUTHORITY OF THE REPRESENTATIVES. In connection with this Agreement, you
will act for and on behalf of the several Underwriters, and any action taken
under this Agreement by the Representatives, will be binding on all the
Underwriters; and any action taken under this Agreement by any of the
Attorneys-in-fact will be binding on all the Selling Stockholders].
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any Section,
paragraph or provision of this Agreement shall not affect the validity or
enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
19. GENERAL. 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. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company, the Selling Stockholders and the
Representative[s].
28
20. COUNTERPARTS. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Any person executing and delivering this Agreement as Attorney-in-fact for [the]
[a] Selling Stockholders represents by so doing that such person has been duly
appointed as Attorney-in-fact by such Selling Stockholder pursuant to a validly
existing and binding Power of Attorney which authorizes such Attorney-in-fact to
take such action.
29
If the foregoing is in accordance with your understanding of the
agreement among the Company, the Selling Stockholders and the several
Underwriters, kindly indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
▇▇▇▇▇▇ CORPORATION
By:____________________________
Name:
Title:
[SELLING STOCKHOLDER[S] LISTED
IN SCHEDULE B]
By: [Attorney-in-fact]
By:______________________________
[Attorney-in-fact]
Acting [on [his] [her] [their] own
behalf and] on behalf of the Selling
Stockholders listed in Schedule B.]
Accepted as of
the date first above written:
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: ▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
By:______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Head of Equity Capital Markets
SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
▇▇ ▇▇▇▇▇ Securities Corporation __________ __________
▇▇▇▇▇▇▇ & Company, Inc. __________ __________
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC __________ __________
Total __________ __________
A-1
SCHEDULE B
Selling Stockholders Number of
Firm
Shares to
be Sold
-------
ValueAct Capital Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ValueAct Capital Partners II, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ValueAct Capital International, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Others - Name and address]
----------
Total
==========
B-1
SCHEDULE C
[list of Stockholders subject to Section 4(h)]
C-1
EXHIBIT I
[Form of Lock-Up Agreement]
[Date]
▇▇ ▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
As representatives of the
several Underwriters
c/o ▇▇ ▇▇▇▇▇ Securities Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇ Corporation [_________] Shares of Common Stock
Dear Sirs:
In order to induce ▇▇ ▇▇▇▇▇ Securities Corporation ("▇▇ ▇▇▇▇▇"),
▇▇▇▇▇▇▇ & Company, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC (collectively, the
"Representatives"), to enter into a certain underwriting agreement with ▇▇▇▇▇▇
Corporation, a Delaware corporation (the "Company"), with respect to the public
offering of shares of the Company's Common Stock, par value $.01 per share
("Common Stock"), the undersigned hereby agrees that for a period of 90 days
following the date of the final prospectus filed by the Company with the
Securities and Exchange Commission in connection with such public offering, the
undersigned will not, without the prior written consent of ▇▇ ▇▇▇▇▇, directly or
indirectly, (i) offer, sell, assign, transfer, pledge, contract to sell, or
otherwise dispose of, any shares of Common Stock (including, without limitation,
Common Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations promulgated under the Securities Act
of 1933, as the same may be amended or supplemented from time to time (such
shares, the "Beneficially Owned Shares")) or securities convertible into or
exercisable or exchangeable in Common Stock, (ii) enter into any swap, hedge or
similar agreement or arrangement that transfers in whole or in part, the
economic risk of ownership of the Beneficially Owned Shares or securities
convertible into or exercisable or exchangeable in Common Stock or (iii) engage
in any short selling of the Common Stock.
Notwithstanding the foregoing, the undersigned may transfer the
undersigned's Beneficially Owned Shares (i) as a bona fide gift or gifts, (ii)
by will or intestacy, (iii) to any trust, partnership or limited liability
company for the direct or indirect benefit of the undersigned or the immediate
family of the undersigned, provided that any such transfer shall not involve a
disposition for value, (iv) to a spouse, former spouse, child or other dependent
pursuant to a domestic relations order or an order of a court of competent
jurisdiction (or a nominee or custodian of any of the same) or (v) in connection
with the cashless exercise of stock options pursuant to the Company's stock
option plans existing on the date hereof; provided that the shares of Common
Stock issued upon such exercise are subject to the restrictions set forth
herein. For purposes of this Lock-Up Agreement, "immediate family" shall mean
any relationship by blood, marriage or adoption, not more remote than first
cousin. In the case of any disposition, distribution or transfer pursuant to
clauses (i) through (iv) above, each donee, trustee, distributee or transferee
shall agree to be bound in writing by the restrictions set forth herein. In
addition, notwithstanding the foregoing, if the undersigned is a corporation,
partnership or limited liability company, the corporation, partnership or
limited liability company may transfer the capital stock of the Company to any
wholly-owned subsidiary of such corporation, partnership or limited liability
company; provided, however, that in any such case, it shall be a condition to
the transfer that the transferee execute an agreement reasonably acceptable to
▇▇ ▇▇▇▇▇ Securities Corporation stating that the transferee is
1
receiving and holding such capital stock subject to the provisions of this
Lock-Up Agreement and there shall be no further transfer of such capital stock
except in accordance with this Lock-Up Agreement, and provided further that any
such transfer shall not involve a disposition for value.
If (i) the Company issues an earnings release or material news or a
material event relating to the Company occurs during the last 17 days of the
90-day lock-up period, or (ii) prior to the expiration of the 90-day lock-up
period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 90-day lock-up period, the
restrictions imposed by this Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
Anything contained herein to the contrary notwithstanding, any person
to whom shares of Common Stock or Beneficially Owned Shares are transferred from
the undersigned shall be bound by the terms of this Agreement.
In addition, the undersigned hereby waives, from the date hereof until
the expiration of the 90 day period following the date of the Company's final
prospectus, any and all rights, if any, to request or demand registration
pursuant to the Securities Act of any shares of Common Stock that are registered
in the name of the undersigned or that are Beneficially Owned Shares. In order
to enable the aforesaid covenants to be enforced, the undersigned hereby
consents to the placing of legends and/or stop-transfer orders with the transfer
agent of the Common Stock with respect to any shares of Common Stock or
Beneficially Owned Shares.
2
[Signatory]
By:_______________________________
Name:
Title:
3