1
Exhibit 1.1
1,500,000 SHARES
COACHMEN INDUSTRIES, INC.
COMMON STOCK, WITHOUT PAR VALUE
UNDERWRITING AGREEMENT
__________________, 1996
2
1,500,000 SHARES
COACHMEN INDUSTRIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_______________, 1996
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
On behalf of the several Underwriters
named on Schedule I attached hereto;
Ladies and Gentlemen:
Coachmen Industries, Inc., an Indiana corporation (the "Company"),
proposes to sell to you and the other underwriters named on Schedule I to this
Agreement (the "Underwriters") for whom you are acting as representative (the
"Representative"), an aggregate of 1,500,000 shares (the "Firm Shares") of the
Company's Common Stock, without par value (the "Common Stock"). In addition,
the Company proposes to grant to the Underwriters an option to purchase up to
an additional 225,000 shares (the "Option Shares") of Common Stock from it for
the purpose of covering over-allotments in connection with the sale of the Firm
Shares. The Firm Shares and the Option Shares are together called the
"Shares."
1. SALE AND PURCHASE OF THE SHARES. On the basis of the representations,
warranties and agreements contained in, and subject to the terms and conditions
of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at $_____ per share (the "Initial Price"), the number of
Firm Shares set forth opposite the name of such Underwriter on Schedule I
to this Agreement.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price. The number of Option Shares to be purchased by
each Underwriter shall be the same percentage (adjusted by the
Representative to eliminate fractions) of the total number of Option
Shares to be purchased by the Underwriters as such Underwriter is
purchasing
- 1 -
3
of the Firm Shares. Such option may be exercised only to cover
over-allotments in the sales of the Firm Shares by the Underwriters and
may be exercised in whole or in part at any time on or before 12:00 noon,
New York City time, on the second business day before the Firm Shares
Closing Date (as defined below), and only once thereafter within 30 days
after the date of this Agreement, in each case upon written or
telegraphic notice, or verbal or telephonic notice confirmed by written
or telegraphic notice, by the Representative to the Company no later than
12:00 noon, New York City time, on the second business day before the
Firm Shares Closing Date or at least three business days before the
Option Shares Closing Date (as defined below), as the case may be,
setting forth the number of Option Shares to be purchased and the time
and date (if other than the Firm Shares Closing Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm Shares to
the Representative for the respective accounts of the Underwriters, and payment
of the purchase price by certified or official bank check or checks payable in
New York Clearing House (next day) funds to the Company shall take place at the
offices of ▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc., at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York City time, on the
third business day following the date of this Agreement (or the fourth business
day if permitted by Rule 15c6-1(c) promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), or at such time on such other
date, not later than 10 business days after the date of this Agreement, as
shall be agreed upon by the Company and the Representative (such time and date
of delivery and payment are called the "Firm Shares Closing Date").
In the event the option with respect to the Option Shares is exercised,
delivery by the Company of the Option Shares to the Representative for the
respective accounts of the Underwriters and payment of the purchase price by
certified or official bank check or checks payable in New York Clearing House
(next day) funds to the Company shall take place at the offices of ▇▇▇▇▇▇▇▇▇▇▇
& Co., Inc. specified above at the time and on the date (which may be the same
date as, but in no event shall be earlier than, the Firm Shares Closing Date)
specified in the notice referred to in Section 1(b) (such time and date of
delivery and payment are called the "Option Shares Closing Date"). The Firm
Shares Closing Date and the Option Shares Closing Date are called,
individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names and
shall be in such denominations as the Representative shall request at least two
full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section 1(b) and shall be made available to the Representative for checking and
packaging, at such place as is designated by the Representative, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING. The Company
has prepared in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the published rules and regulations
thereunder (the
- 2 -
4
"Rules") adopted by the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (No. 333-_____), including a preliminary
prospectus relating to the Shares, and has filed with the Commission the
Registration Statement (as hereinafter defined) and such amendments thereof as
may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereof) and of the related
preliminary prospectus have heretofore been delivered by the Company to you.
The term "preliminary prospectus" as used hereinafter means any preliminary
prospectus (as described in Rule 430 of the Rules) relating to the Shares
included at any time as a part of the Registration Statement. The Registration
Statement as amended at the time and on the date it becomes effective (the
"Effective Date"), including all exhibits and information, if any, deemed to be
part of the Registration Statement pursuant to Rule 424(b), Rule 430A and Rule
434 of the Rules, is called the "Registration Statement." The term
"Prospectus" means the prospectus relating to the Shares in the form first used
to confirm sales of the Shares (whether such prospectus was included in the
Registration Statement at the time of effectiveness or was subsequently filed
with the Commission pursuant to Rule 424(b) of the Rules). Any reference
herein to the Registration Statement, to any preliminary prospectus or to the
Prospectus shall be deemed to refer to and include any documents incorporated
by reference therein, and, in the case of any reference herein to any
Prospectus, also shall be deemed to include any documents incorporated by
reference therein, and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus under Rules 424(b) or
430A of the Rules, and prior to the termination of the offering of the Shares
by the Underwriters.
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date and the date of this Agreement as the Representative
deems advisable. The Company hereby confirms that the Underwriters and dealers
have been authorized to distribute or cause to be distributed each preliminary
prospectus and are authorized to distribute the Prospectus (as from time to
time amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each Underwriter as follows:
(a) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Indiana.
The Company is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or location of
its assets or properties (owned, leased or licensed) or the nature of its
business makes such qualification necessary, except for such
jurisdictions where the failure to so qualify would not have a material
adverse effect on the assets or properties, business, results of
operations, prospects or financial condition of the Company. The Company
does not own, lease or license any asset or property or conduct any
business outside the United States of America. Each of All American
Homes, Inc., an Indiana corporation, All American Homes of Iowa, Inc., an
Iowa corporation, All American Homes of North Carolina, Inc. a North
Carolina corporation, All American Homes of Tennessee, Inc., a Tennessee
corporation,
- 3 -
5
Georgie Boy Mfg., Inc., an Indiana corporation, The Lux Company, Inc., an
Indiana corporation, Southern Ambulance Builders, Inc., a Georgia
corporation, and Viking Recreational Vehicles, Inc., a Michigan
corporation (collectively, the "Subsidiaries"), has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its state of incorporation. Each Subsidiary is duly
qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its assets or
properties (owned, leased or licensed) or the nature of its business
makes such qualification necessary, except for such jurisdictions where
the failure to qualify would not have a material adverse affect on the
assets or properties, business, results of operations or financial
condition of the Company. The Company does not control, directly or
indirectly, any corporation, partnership, joint venture, association or
other business organization other than the Subsidiaries.
(b) The Company and each of the Subsidiaries has all requisite
corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and
from all governmental or regulatory bodies or any other person or entity,
including any and all licenses, permits and approvals required under any
federal, state or local law, to own, lease and license its assets and
properties and to conduct its businesses as now being conducted and as
proposed to be conducted as described in the Registration Statement and
the Prospectus. The Company and each of the Subsidiaries have fulfilled
and performed in all material respects all of their obligations with
respect to such authorizations, approvals, consents, orders, licenses,
certificates and permits, and neither the Company nor any Subsidiary is
in violation of any term or provision of any such authorizations,
approvals, consents, orders, licenses, certificates or permits, nor has
any event occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or which could result in any
material impairment of the rights of the holder thereof. No such
authorization, approval, consent, order, license, certificate or permit
contains a materially burdensome restriction other than as disclosed in
the Registration Statement and the Prospectus. Neither the Company nor
any of the Subsidiaries has any reason to believe that any governmental
or regulatory body is considering modifying, limiting, conditioning,
suspending, revoking or not renewing any such authorizations, approvals,
consents, orders, licenses, certificates or permits of the Company or any
of the Subsidiaries or that such governmental or regulatory bodies are
investigating the Company or any of the Subsidiaries or related parties.
(c) The Company and/or its Subsidiaries own, or have enforceable
rights to use, all trademarks, trademark applications, trade names,
service marks, copyrights, copyright applications, licenses, know-how and
other similar rights, technology and proprietary knowledge (collectively,
"Intangibles") necessary for the conduct of the business of the Company
as described in the Registration Statement and the Prospectus. Neither
the Company nor any of the Subsidiaries has received any notice of, and
they are not aware of, any infringement of, or conflict with asserted
rights of others with respect to, any Intangibles which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect upon the
- 4 -
6
assets or properties, business, results of operations, prospects or
financial condition of the Company. The Intangibles are free and clear
of all liens and encumbrances of every nature and kind. Except as
disclosed in the Registration Statement and the Prospectus, neither the
Company nor any of the Subsidiaries has violated or infringed any patent,
trademark, tradename, trade secret or copyright held by others or any
license, authorization or permit held by them, in any manner which may
materially adversely affect the Intangibles or the business of the
Company. Except in connection with transactions entered into in the
ordinary course of business, neither the Company nor any of the
Subsidiaries has granted any licenses or other rights or has any
obligations to grant licenses or any other rights to any Intangibles.
Neither the Company nor any of the Subsidiaries has made any material
claim of violation or infringement by others of rights to, or in
connection with, the Intangibles, and the Company knows of no basis for
making any such claim. There are no interferences or other contested
proceedings, either pending or, to the knowledge of the Company,
threatened, in the United States Copyright Office, the United States
Patent and Trademark Office or any federal, state or local court or
before any other governmental agency or tribunal, relating to any pending
application with respect to the Intangibles.
(d) The Company and each of the Subsidiaries has (i) good and valid
title to each of the items of personal property and good, marketable and
insurable fee title to all real property reflected in its financial
statements referred to in Section 4(s) or referred to in the Registration
Statement and the Prospectus as being owned by it and (ii) valid and
enforceable leasehold interests in each of the items of real and personal
property which are referred to in the Registration Statement and the
Prospectus as being leased by it, in each case free and clear of all
liens, encumbrances, claims, security interests, defects or rights of
way. No financing statement under the Uniform Commercial Code with
respect to any assets of the Company or the Subsidiaries has been filed
in any jurisdiction, and neither the Company nor any of the Subsidiaries
has signed any such financing statement or any security agreement
authorizing any secured party thereunder to file any such financing
statement. All real property of the Company and the Subsidiaries
reflected in the financial statements referred to in Section 4(s) or
referred to in the Registration Statement and the Prospectus as being
owned by the Company or the Subsidiaries is in good condition and
conforms in all material respects with all applicable building, zoning,
land use and other laws, ordinances, codes, orders and regulations (other
than environmental laws, which are addressed in Section 4(f)) and the use
of such real property conforms in all material respects with such laws,
ordinances, codes, orders and regulations, and all necessary occupancy,
certificates and permits for the lawful use and occupancy thereof and the
equipment thereof have been issued. All notices of violations of law,
ordinances, codes, orders or regulations issued by any governmental
authority having jurisdiction over or affecting any such real property
have been complied with by the Company or the Subsidiaries, as
applicable.
(e) Except as described in the Registration Statement and the
Prospectus, there is no pending or, to the knowledge of the Company,
threatened, lawsuit or claim
- 5 -
7
with respect to the Company or any of the Subsidiaries which (i) involves
a claim by or against the Company or any of the Subsidiaries, as
applicable, of more than $50,000, (ii) seeks injunctive relief that could
have an adverse effect on the Company or (iii) could materially and
adversely affect the performance by the Company or any of the
Subsidiaries of their obligations pursuant to this Agreement or the
transactions contemplated hereby. Neither the Company nor any of the
Subsidiaries is in default under any judgment, order or decree of any
court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, applicable to it or
any of its respective properties, assets, operations or businesses.
There is no legal or governmental or other proceeding or investigation
before any court or before or by any public body or board pending or, to
the Company's best knowledge, threatened (and the Company does not know
of any basis therefor) against or involving the assets, properties or
business of the Company or the assets, properties or business of any of
the Subsidiaries, that would materially adversely affect the value or the
operation of any such assets or properties in the hands of the Company or
the Subsidiaries or the business, results of operations, prospects or
financial condition of the Company.
(f) Neither the Company nor any of the Subsidiaries has at any time
engaged in the handling, manufacture, treatment, storage, use or
generation of any Hazardous Materials (as defined below) upon any real
property owned or leased by it, except for such quantities handled,
stored and used in connection with the normal operation of manufacturers
and distributors of recreational vehicles and modular homes in the
ordinary course of the business of the Company or the Subsidiaries, as
applicable. Neither the Company nor any of the Subsidiaries has been a
party to any litigation in which it is alleged, nor have any of them at
any time received written notice of any allegation or investigation of
the possibility, that any of them or any of their assets is or was
subject to any liability, clean-up or other obligation arising out of or
relating to any discharge, or the storage, handling or disposal, of any
Hazardous Material. There has been no discharge at any time by the
Company or any of the Subsidiaries of any Hazardous Material that the
Company or any of the Subsidiaries has reported or is or was obligated to
report to any governmental agency the occurrence of which may have a
material adverse effect on the Company. For the purposes of this
Agreement, "Hazardous Material" means any substance: (i) the presence of
which requires investigation or remediation under any federal, state or
local statute, regulation, ordinance, order, action, policy or common
law; (ii) that is or becomes defined as a "hazardous waste," "hazardous
substance," pollutant or contaminant under any federal, state or local
statute, regulation, rule or ordinance or amendments thereto including,
without limitation the Comprehensive Environmental Response Compensation
and Liability Act (42 U.S.C. 9601 et seq.) and/or the Resource
Conservation and Recovery Act (42 U.S.C. section 6901 et seq.); (iii)
that is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic, or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission,
board, agency or instrumentality of the United States or of any state or
any political subdivision thereof; or (iv) which contains
- 6 -
8
polychlorinated biphenyls (PCBs), asbestos, urea formaldehyde foam
insulation or radon gas.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as
described therein, (i) there has not been any material adverse change in
the assets or properties, business, results of operations, prospects or
financial condition of the Company or the Subsidiaries, whether or not
arising from transactions in the ordinary course of business; (ii)
neither the Company nor any of the Subsidiaries has sustained any loss or
interference with its assets, businesses or properties (whether owned or
leased) from fire, explosion, earthquake, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or decree that
would have a material adverse effect on the Company; and (iii) and since
the date of the latest balance sheets included in the Registration
Statement and the Prospectus, except as reflected therein, neither the
Company nor any of the Subsidiaries has (A) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed
money, except such liabilities or obligations incurred in the ordinary
course of business, (B) entered into any transaction not in the ordinary
course of business or (C) declared or paid any dividend or made any
distribution on any shares of its stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any
shares of its stock.
(h) There is no document or contract of a character required to be
described in the Registration Statement or Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed
as required. Each agreement listed in the Exhibits to the Registration
Statement is in full force and effect and is valid and enforceable by and
against the Company or the Subsidiaries, as applicable, in accordance
with its terms, assuming the due authorization, execution and delivery
thereof by each of the other parties thereto, except for agreements that
have expired by their terms or have been fully performed. Neither the
Company, nor, to the Company's knowledge, any other party is in default,
nor is any Subsidiary party thereto in default, in the observance or
performance of any term or obligation to be performed by it under any
such agreement, and no event has occurred which with notice or lapse of
time or both would constitute such a default, in any such case in which a
default or event would have a material adverse effect on the assets or
properties, business, results of operations, prospects or financial
condition of the Company. No default exists, and no event has occurred
which with notice or lapse of time or both would constitute a default, in
the due performance and observance of any term, covenant or condition by
the Company or any of the Subsidiaries of any other agreement or
instrument to which the Company or any of the Subsidiaries is now a party
or by which it or its properties or business may be bound or affected
which default or event would have a material adverse effect on the assets
or properties, business, results of operations, prospects or financial
condition of the Company.
- 7 -
9
(i) Neither the Company nor any of the Subsidiaries is in violation
of any term or provision of its charter or by-laws or of any judgment,
decree, order, statute, rule or regulation, where the consequences of
such violation would have a material adverse effect on the assets or
properties, business, results of operations, prospects or financial
condition of the Company.
(j) There is no labor strike, dispute or work stoppage or lockout
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or the Subsidiaries, and no such labor strike,
dispute, work stoppage or lockout has occurred with respect to any
employees of the Company or the Subsidiaries during the two years prior
to the date of this Agreement. No union organization campaign is in
progress with respect to the employees of the Company or the
Subsidiaries, and no question concerning representation exists with
respect to such employees. No unfair labor practice charge or complaint
against the Company or the Subsidiaries is pending or, to the knowledge
of the Company, threatened, before the National Labor Relations Board or
similar foreign authorities, and no such charge or complaint against the
Company or any of the Subsidiaries has been filed during the past two
years. There is no pending, or, to the knowledge of the Company,
threatened, grievance that, if adversely decided, would have a material
adverse effect on the business, results of operations, prospects or
financial condition of the Company. No charges with respect to or
relating to the Company or the Subsidiaries are pending before the Equal
Employment Opportunity Commission or any state, local or foreign agency
responsible for the prevention of unlawful employment practices, and no
such charges have been filed with respect to the Company, any of the
Subsidiaries or any of the businesses currently operated by the
Subsidiaries during the past two years.
(k) Each of the Company and the Subsidiaries has correctly and
timely filed all necessary federal, state, local and foreign income,
property and franchise tax returns and paid all taxes required to be
shown as due thereon and all assessments received by it to the extent
that the same are material and have become due. Neither the Company nor
any of its officers has any knowledge of any tax deficiency of the
Company or any of the Subsidiaries or any tax proceeding or action
pending or threatened against the Company or any of the Subsidiaries that
would materially adversely affect the business, financial position,
stockholders' equity or results of operations, present or prospective, of
the Company. There are no liens for taxes on the assets of the Company
or the Subsidiaries, except for taxes not yet due. There are no audits
pending of the Company's or any of the Subsidiaries' tax returns
(federal, state, local or foreign), and there are no claims which have
been or, to the best of the Company's knowledge, may be asserted relating
to any such tax returns which, if determined adversely, would result in
the assertion by any governmental agency of any deficiency material to
the Company. There have been no waivers of any statute of limitations by
the Company or any of the Subsidiaries relating to tax returns (federal,
state, local and foreign). The Internal Revenue Service has not asserted
or threatened to assert any assessment, claim or liability for taxes due
or to become due in connection with any review or examination of the tax
returns of the Company or any of the Subsidiaries for any year.
- 8 -
10
(l) None of the Company, any Subsidiary or any officer or director
purporting to act on behalf of the Company or any Subsidiary has during
the past five years (i) made any contributions to any candidate for
political office, or failed to disclose fully any such contributions, in
violation of law; or (ii) made any payment to any Federal, state, local
or foreign governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or
allowed by applicable law; or (iii) made any payment outside the ordinary
course of business to any purchasing or selling agent or person charged
with similar duties of any entity to which the Company or such Subsidiary
as applicable, sells (or has in the past sold) or from which the Company
or such Subsidiary, as applicable, buys (or has in the past bought)
products for the purpose of influencing such agent or person to buy
products from or sell products to the Company or such Subsidiary, as
applicable; or (iv) engaged in any transaction, maintained any bank
account or used any corporate funds except for transactions, bank
accounts and funds which have been and are reflected in the normally
maintained books and records of the Company or such Subsidiary, as
applicable.
(m) Each of the Company and the Subsidiaries has adequate liability
and other insurance policies insuring it against the risks of loss
arising out of or related to its businesses, as described in the
Registration Statement and Prospectus, issued by insurers of recognized
financial responsibility.
(n) The Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (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 the existing assets
at reasonable intervals and appropriate action is (or was) taken with
respect to any differences.
(o) On the Effective Date, the Registration Statement complied, and
on the date of the Prospectus, on the date any post-effective amendment
to the Registration Statement shall become effective, on the date any
supplement or amendment to the Prospectus is filed with the Commission
and on each Closing Date, the Registration Statement and the Prospectus
(and any amendment thereof or supplement thereto) will comply, in all
material respects, with the applicable provisions of the Securities Act
and the Rules and the Exchange Act and the rules and regulations of the
Commission thereunder; the Registration Statement did not, as of the
Effective Date, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the other
dates referred to above neither the Registration Statement nor the
Prospectus, nor any amendment thereof or supplement thereto, will contain
any untrue statement of a material fact or will omit to state any
material fact required to be stated
- 9 -
11
therein or necessary in order to make the statements therein (in light of
the circumstances in which they were made) not misleading. When any
related preliminary prospectus was first filed with the Commission
(whether filed as part of the Registration Statement or any amendment
thereto or pursuant to Rule 424(a) of the Rules) and when any amendment
thereof or supplement thereto was first filed with the Commission, such
preliminary prospectus as amended or supplemented complied in all
material respects with the applicable provisions of the Securities Act
and the Rules and did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (in light of the
circumstances in which they were made) not misleading. Notwithstanding
the foregoing, the Company makes no representation or warranty as to the
paragraph with respect to stabilization on the inside front cover page of
the Prospectus and the statements contained under the caption
"Underwriting" in the Prospectus. The Company acknowledges that the
statements referred to in the previous sentence constitute the only
information furnished in writing by the Representative on behalf of the
several Underwriters specifically for inclusion in the Registration
Statement, any preliminary prospectus or the Prospectus.
(p) The Company has all requisite corporate power and authority to
enter into, deliver and perform this Agreement and to issue and sell the
Shares. All necessary corporate action has been duly and validly taken
by the Company to authorize the execution, delivery and performance of
this Agreement and the issuance and sale of the Shares by the Company.
This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except (A) as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles and (B) to the extent that rights to
indemnity or contribution under this Agreement may be limited by Federal
and state securities laws or the public policy underlying such laws.
(q) Neither the execution, delivery and performance of this
Agreement by the Company, as applicable, nor the consummation of any of
the transactions contemplated hereby (including, without limitation, the
issuance and sale by the Company of the Shares) will give rise to a right
to terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or any
Subsidiary pursuant to the terms of, any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any
Subsidiary is a party or by which it or any of its properties or
businesses is bound, or any franchise, license, permit, judgment, decree,
order, statute, rule or regulation applicable to the Company or any
Subsidiary or violate any provision
- 10 -
12
of the charter or by-laws of the Company or any Subsidiary, except for
such consents or waivers which have already been obtained and are in full
force and effect.
(r) No authorization, approval, consent, order, license, certificate
or permit is required of or from any governmental or regulatory body
under any federal, state or local law for the execution, delivery and
performance of this Agreement or for the consummation of the transactions
contemplated hereby or thereby, except such as have been obtained. This
Agreement has been presented to any and all governmental agencies or
authorities to the extent required, and this Agreement and the
transactions contemplated hereby and thereby were approved by or on
behalf of such governmental agencies or authorities to the extent
required, and such approvals have not been revoked, modified or
rescinded.
(s) The financial statements of the Company (including all notes and
schedules thereto) set forth or incorporated by reference in the
Registration Statement and Prospectus present fairly the financial
position, the results of operations and cash flows and the stockholders'
equity and the other information purported to be shown therein of the
Company at the respective dates and for the respective periods to which
they apply; and such financial statements have been prepared in
conformity with generally accepted accounting principles, consistently
applied throughout the periods involved, and all adjustments necessary
for a fair presentation of the results for such periods have been made.
(t) Coopers & ▇▇▇▇▇▇▇ L.L.P., whose report is incorporated by
reference as a part of the Registration Statement and Prospectus, are
and, during the periods covered by their reports were, independent public
accountants as required by the Securities Act and the Rules.
(u) The Company has authorized and outstanding capital stock as set
forth under the caption "Capitalization" in the Prospectus. All of the
outstanding shares of Common Stock have been duly and validly issued and
are fully paid and nonassessable and none of them was issued in violation
of any preemptive or other similar right. The Shares, when issued and
sold pursuant to this Agreement, will be duly and validly issued, fully
paid and nonassessable and none of them will be issued in violation of
any preemptive or other similar rights. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and there is
no commitment, plan or arrangement to issue, any share of stock of the
Company or any security convertible into, or exercisable or exchangeable
for, such stock. The Common Stock and the Shares conform in all material
respects to all statements in relation thereto contained in the
Registration Statement and the Prospectus.
(v) All of the outstanding shares of capital stock of the
Subsidiaries have been duly and validly issued. All of the outstanding
shares of capital stock of the Subsidiaries are owned by the Company,
directly or indirectly, free and clear of any
- 11 -
13
liens, charges or encumbrances, such shares of capital stock are fully
paid and nonassessable, and none of them was issued in violation of any
preemptive or other similar right. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding
option, warrant or other right calling for the issuance of, and there is
no commitment, plan or arrangement to issue, any share of capital stock
of any Subsidiary or any security convertible into, or exercisable or
exchangeable for, such stock.
(w) Except as described in the Registration Statement and
Prospectus, there are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company or any Subsidiary under
the Securities Act. Each stockholder, director and executive officer of
the Company has delivered to the Representative his enforceable written
agreement that he or she will not, for a period of 90 days after the date
of this Agreement, offer for sale, sell, distribute, grant any option for
the sale of, or otherwise dispose of, directly or indirectly, or exercise
any registration rights with respect to, any shares of Common Stock (or
any securities convertible into, exercisable for, or exchangeable for any
shares of Common Stock) owned by him or her, without the prior written
consent of the Representative, except that one certain executive officer
and director may transfer by way of a gift an aggregate of [80,000]
shares of Common Stock to charitable foundations or charitable trusts
during such period.
(x) No transaction has occurred between or among the Company or any
Subsidiary and any of their officers or directors or any affiliate or
affiliates of any such officer or director that is required to be
described in and is not described in the Registration Statement and the
Prospectus.
(y) The Shares have been duly approved for quotation on the New York
Stock Exchange (the "NYSE").
(z) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(aa) None of the Company or any of its directors, officers or
controlling persons has taken or will take, directly or indirectly, any
action resulting in a violation of Rule 10b-6 under the Exchange Act, or
designed to cause or result under the Securities Act or otherwise in, or
which has constituted or which reasonably might be expected to
constitute, the stabilization or manipulation of the price of any
securities of the Company or facilitation of the sale or resale of the
Shares.
(bb) Neither the Company nor any of the Subsidiaries has incurred
any liability for finder's or broker's fees or agent's commissions in
connection with the execution and delivery of this Agreement, the offer
and sale of the Shares or the transactions contemplated hereby.
- 12 -
14
(cc) The Company is not required to register as a "broker" or
"dealer" in accordance with the provisions of the Exchange Act or the
rules and regulations promulgated thereunder.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(A)(i) of this Agreement.
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with
to the satisfaction of the Representative.
(c) The representations and warranties of the Company contained in
this Agreement and in the certificates delivered pursuant to Section 5(d)
shall be true and correct when made and on and as of each Closing Date as
if made on such date and the Company shall have performed all covenants
and agreements and satisfied all the conditions contained in this
Agreement required to be performed or satisfied by it at or before such
Closing Date.
(d) The Representative shall have received on each Closing Date a
certificate, addressed to the Representative and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer or chief accounting officer of the Company to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the representations
and warranties of the Company in this Agreement are true and correct on
and as of such Closing Date with the same effect as if made on such
Closing Date and the Company has performed all covenants and agreements
and satisfied all conditions contained in this Agreement required to be
performed or satisfied by it at or prior to such Closing Date.
(e) The Representative shall have received on the Effective Date, at
the time this Agreement is executed and on each Closing Date, a signed
letter from Coopers & ▇▇▇▇▇▇▇ L.L.P. addressed to the Representative and
dated, respectively, the Effective Date, the date of this Agreement and
each such Closing Date, in form and substance reasonably satisfactory to
the Representative, confirming that they are independent accountants
within the meaning of the Securities Act and the Rules, that the response
to Item 10 of the Registration Statement is correct insofar as it relates
to them and stating in effect that:
- 13 -
15
(i) in their opinion the audited financial statements and
financial statement schedules set forth in or incorporated by
reference in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and
the Rules;
(ii) on the basis of a reading of the amounts included in the
Registration Statement and the Prospectus under the headings
"Selected Consolidated Financial and Other Data" and the latest
unaudited financial statements of the Company, carrying out certain
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter, a reading of the minutes of the meetings of the
stockholders and directors of the Company, and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company as to transactions and events
subsequent to the date of the latest audited financial statements,
except as disclosed in the Registration Statement and the
Prospectus, nothing came to their attention which caused them to
believe that:
(A) the unaudited financial statements and supporting
schedules of the Company set forth in or incorporated by
reference in the Registration Statement do not comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Rules or are not
presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with
that of the audited financial statements set forth in or
incorporated by reference in the Registration Statement;
(B) the amounts in "Selected Consolidated Financial and
Other Data" set forth in or incorporated by reference in the
Registration Statement and the Prospectus and the latest
unaudited financial statements of the Company do not agree
with the corresponding amounts in the audited and unaudited
financial statements from which such amounts were derived; or
(C) with respect to the Company, there were, at a
specified date not more than five business days prior to the
date of the letter, any increases in long-term liabilities of
the Company or any decreases in net income or the
stockholders' equity in the Company, as compared with the
amounts shown on the Company's audited balance sheet dated
December 31, 1995 and the unaudited balance sheet dated
September 30, 1996 set forth in or incorporated by reference
in the Registration Statement; and
- 14 -
16
(iii) they have performed certain other procedures as a result
of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the Company) set forth in or incorporated by
reference in the Registration Statement and the Prospectus and
reasonably specified by the Representative agrees with the
accounting records of the Company.
References to the Registration Statement and the Prospectus in this
paragraph (e) are to such documents as amended and supplemented at the
date of the letter.
(f) The Representative shall have received on each Closing Date from
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, counsel for the Company, an opinion, addressed
to the Representative and dated such Closing Date, and stating in effect
that:
(i) The Company and the Subsidiaries are in good standing as
foreign corporations in all jurisdictions in which the nature of
their businesses requires them to be qualified to do business as a
foreign corporation.
(ii) The Company and each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the state of its incorporation or
organization. The Company has authorized and issued capital stock
as set forth in the Registration Statement and the Prospectus; the
certificates evidencing the Shares are in due and proper legal form
and have been duly authorized for issuance by the Company; all of
the outstanding shares of Common Stock of the Company have been
duly and validly authorized and have been duly and validly issued
and are fully paid and nonassessable and none of them was issued in
violation of any preemptive or other similar right. The Shares,
when issued and sold pursuant to this Agreement, will be duly and
validly issued, outstanding, fully paid and nonassessable and none
of them will have been issued in violation of any preemptive or
other similar right. To such counsel's knowledge, except as
disclosed in the Registration Statement and the Prospectus, there
is no outstanding subscription, option, warrant or other right
calling for the issuance of any share of stock of the Company or
any Subsidiary or any security convertible into, exercisable for,
or exchangeable for stock of the Company or any Subsidiary. The
Common Stock and the Shares conform in all material respects to the
descriptions thereof contained in the section of the Registration
Statement and the Prospectus entitled "Description of Capital
Stock." All of the issued and outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are owned of record by
the Company, directly or through a wholly-owned Subsidiary.
Assuming that the Company acquired such shares in good faith and
without knowledge of any adverse claim, to the best of such
counsel's
- 15 -
17
knowledge, the Company holds such shares free and clear of any
security interest, lien, encumbrance or other adverse claim. To
such counsel's knowledge, except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding subscription,
option, warrant or other right calling for the issuance of any
share of stock of any of the Subsidiaries or any security
convertible into, exercisable for, or exchangeable for stock of any
Subsidiary.
(iii) The Company and each of the Subsidiaries has all
requisite corporate power and authority and all necessary
authorizations, approvals, consents, orders, licenses, certificates
and permits required to own, lease and license its assets and
properties and to conduct its business as now being conducted and
as described in the Registration Statement and the Prospectus. The
Company and each of the Subsidiaries has all requisite corporate
power and authority and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits to enter into,
deliver and perform this Agreement and, in the case of the Company,
to issue and sell the Shares, other than those authorizations,
approvals, consents, orders licenses, certificates and permits
required under state and foreign securities laws. To such
counsel's knowledge, the Company and each of the Subsidiaries have
fulfilled and performed in all material respects all of their
obligations with respect to such permits, and neither the Company
nor any Subsidiary is in violation of any term or provision of any
such permits, nor has any event occurred which allows, or after
notice or lapse of time would allow, revocation or termination
thereof or which could result in any material impairment of the
rights of the holder of any such permits. To such counsel's
knowledge, the Company does not control, directly or indirectly,
any corporation, partnership, joint venture, association or other
business organization other than the Subsidiaries.
(iv) No permits are required for the performance of this
Agreement or for the consummation of the transactions contemplated
hereby or any other transaction described in the Registration
Statement to be entered into prior to or contemporaneously with the
sale of the Shares, except as disclosed in the Registration
Statement and except for such permits that have been obtained.
(v) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement, and the issuance and sale of the
Shares. This Agreement has been duly and validly authorized,
executed and delivered by the Company, and constitutes the valid
and binding obligation of the Company, enforceable against the
Company, in accordance with its terms, except (A) as such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer or conveyance, reorganization, receivership,
moratorium or other similar laws then or thereafter in effect
relating to or affecting the rights of creditors generally and by
general equitable principles regardless of whether enforcement is
- 16 -
18
considered in proceedings at law or in equity (including the
possible unavailability of specific performance or injunctive
relief and the general discretion of the court or tribunal
considering the matter) and (B) to the extent that rights to
indemnity or contribution under this Agreement may be unenforceable
under certain circumstances under law or court decisions with
respect to a liability where indemnification or contribution is
contrary to law or public policy.
(vi) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby or thereby (including, without
limitation, the issuance and sale by the Company of the Shares)
will violate any provision of the charter or bylaws of the Company
or the Subsidiaries or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation binding upon or
applicable to the Company or the Subsidiaries.
(vii) To such counsel's knowledge, neither the Company nor any
of the Subsidiaries is in violation of any term or provision of its
charter or bylaws. Except as disclosed in the Registration
Statement and the Prospectus, to such counsel's knowledge, no
default exists and no event has occurred which with notice or lapse
of time, or both, would constitute a default in the due performance
and observance of any express term, covenant or condition by the
Company or any of the Subsidiaries of any indenture, mortgage, deed
of trust, note or any other agreement or instrument to which the
Company or any of the Subsidiaries are parties or by which they or
any of their assets or properties or businesses may be bound or
effected, where the consequences of such default would have a
material adverse effect on the assets, properties, business,
results of operations, prospects or financial condition of the
Company.
(viii) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation,
the issuance and sale by the Company of the Shares) will give rise
to a right to terminate or accelerate the due date of any payment
due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or any event which with
notice or lapse of time, or both, would constitute a default)
under, or require a consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any Subsidiary, pursuant to
the express terms of any indenture, mortgage, deed of trust, note
or other agreement or instrument filed as an exhibit to the
Registration Statement and to which the Company or any Subsidiary
is a party or by which it or any of its properties or businesses is
bound, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation binding upon or applicable to the
Company or any Subsidiary.
- 17 -
19
(ix) Except as described in the Registration Statement and the
Prospectus, to such counsel's knowledge, no default exists, and no
event has occurred which with notice or lapse of time, or both,
would constitute a default in the due performance and observance of
any express term, covenant or condition by the Company or any
Subsidiary of any indenture, mortgage, deed of trust, note or any
other agreement filed as an exhibit to or incorporated by reference
in the Registration Statement, where the consequences of such
default would have a material and adverse effect on the assets,
properties or business of the Company.
(x) To such counsel's knowledge, neither the Company nor any
of the Subsidiaries is in violation of any term or provision of any
franchise, license, permit, judgment, decree, order, statute, rule
or regulation under Federal law, where the consequences of such
violation would have a material adverse effect on the assets,
properties or business, results of operations, prospects or
financial condition of the Company.
(xi) No authorization, approval, consent, order, license,
certificate or permit or order of any court or governmental agency
or body is required under Federal law for the execution, delivery
or performance of this Agreement or the consummation of the
transactions contemplated hereby or thereby or any other
transaction described in the Registration Statement to be entered
into prior to or contemporaneously with the sale of the Shares,
except (a) as disclosed in the Registration Statement, (b) such as
have been obtained and (c) such as are required under state and
foreign securities laws.
(xii) To such counsel's knowledge, there is no litigation or
governmental or other proceeding or investigation before any court
or before or by any public body or board pending or threatened
against the Company or any of the Subsidiaries which is required to
be disclosed in the Prospectus and which is not so disclosed.
(xiii) The statements in the Prospectus under the captions
"______" and "__________," insofar as such statements constitute a
summary of documents referred to therein or matters of law, are
fair summaries in all material respects and accurately present the
information called for by the Securities Act and the Rules with
respect to such documents and matters. To such counsel's
knowledge, all contracts and other documents required to be filed
as exhibits to, or described in, the Registration Statement have
been so filed with the Commission or are fairly described in the
Registration Statement, as the case may be.
(xiv) The statements in the Prospectus under the captions of
"Description of Common Stock" insofar as such statements constitute
a
- 18 -
20
summary of the Articles of Incorporation and Bylaws of the Company
referred to therein or matters of Indiana law, are correct in all
material respects.
(xv) The Registration Statement, all preliminary prospectuses
and the Prospectus and each amendment or supplement thereto (except
for the financial statements and schedules and other financial and
statistical data included therein, as to which such counsel
expresses no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Rules.
(xvi) The Registration Statement has become effective under
the Securities Act, and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
are threatened, pending or contemplated.
(xvii) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended.
(xviii) The Shares have been duly approved for listing on the
NYSE.
(xix) To such counsel's knowledge, there are no persons with
registration or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the Securities Act, except as
disclosed in the Registration Statement and the Prospectus.
(xx) The issuance and sale of 10,733,236 additional shares of
the Common Stock (the "Additional Common Stock"), pursuant to the
Company's 1994 Omnibus Stock Incentive Program (the "Plan") and its
two-for-one stock split effected August 28, 1996 (the "Stock
Split") have been duly authorized by all necessary corporate action
on the part of the Company;
(xxi) The Additional Common Stock has been duly approved for
listing on the NYSE.
(xxii) The Additional Common Stock is validly issued, fully
paid and nonassessable and none of them have been issued in
violation of any preemptive or other similar right.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of officers of the Company, Subsidiaries
and public officials and on the opinions of other counsel satisfactory to
the Representative as to matters which are governed by laws other than
the laws of the State of New York and the Federal laws of the United
States; provided that such counsel shall state that in their opinion that
they
- 19 -
21
believe the Underwriters and they are justified in relying on such other
opinions. Copies of such certificates and other opinions shall be
furnished upon request to the Representative and counsel for the
Underwriters.
In addition, such opinion shall include a statement to the effect
that, although such counsel has not verified, and is not passing upon and
does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
the Prospectus (except as specified in the foregoing opinion), no facts
have come to the attention of such counsel which lead such counsel to
believe that, under the Securities Act and the Rules, the Registration
Statement at the time it became effective contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or that, as
of the date of the Prospectus, as amended or supplemented, the Prospectus
as so amended or supplemented contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case except with respect to
the financial statements and notes and schedules thereto and other
financial and statistical data, as to which such counsel need make no
statement).
(g) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representative and their
counsel and the Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP a favorable opinion, addressed to the Representative and
dated such Closing Date, with respect to the Shares, the Registration
Statement and the Prospectus, and such other related matters, as the
Representative may reasonably request, and the Company shall have
furnished to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(h) The Company and each of the Subsidiaries shall have furnished or
caused to be furnished to the Representative such further certificates
and documents as the Representative shall have reasonably requested.
6. COVENANTS OF THE COMPANY. (A) The Company covenants and agrees as
follows:
(i) The Company shall prepare the Prospectus in a form approved by
the Underwriter and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on
the second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Securities Act, and shall promptly advise the
Representative (a) when any amendment to the Registration Statement shall
have become effective, (b) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any
additional information, (c) of
- 20 -
22
the prevention or suspension of the use of any preliminary prospectus or
the Prospectus or of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (d) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company shall not file or prepare any amendment of the
Registration Statement or supplement to the Prospectus unless the Company
has furnished the Representative a copy for its review within a
reasonable amount of time prior to filing or use and shall not file or
use any such proposed amendment or supplement to which the Representative
reasonably object. The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Securities Act or the Rules, the Company
promptly shall prepare and file with the Commission, subject to the
second sentence of paragraph (i) of this Section 6(A), an amendment or
supplement which shall correct such statement or omission or an amendment
which shall effect such compliance.
(iii) The Company shall make generally available to its security
holders and to the Representative as soon as practicable, but not later
than 45 days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the "effective date" (as
defined in Rule 158 of the Rules) occurs (or 90 days if such 12-month
period coincides with the Company's fiscal year), an earnings statement
(which need not be audited) of the Company, covering such 12-month
period, which shall satisfy the provisions of Section 11(a) of the
Securities Act. The Company may satisfy this requirement by complying
with Rule 158 of the Rules.
(iv) The Company shall furnish to the Representative and counsel for
the Underwriters, without charge, three signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) and
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as delivery of
a prospectus by an Underwriter or dealer may be required by the
Securities Act or the Rules, as many copies of any preliminary prospectus
and the Prospectus and any amendments thereof and supplements thereto as
the Representative may reasonably request.
(v) The Company shall cooperate with the Representative and its
counsel in endeavoring to qualify the Shares for offer and sale under the
laws of such jurisdictions as the Representative may designate and shall
maintain such qualifications in effect so
- 21 -
23
long as required for the distribution of the Shares; provided, however,
that the Company shall not be required in connection therewith, as a
condition thereof, to qualify as a foreign corporation or to execute a
general consent to service of process in any jurisdiction or subject
itself to taxation as doing business in any jurisdiction. In each
jurisdiction in which the Shares have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the Effective Date.
(vi) For a period of five years after the date of this Agreement,
the Company shall supply to the Representative and to each other
Underwriter who may so request in writing, copies of such financial
statements and other periodic and special reports as the Company may from
time to time distribute generally to the holders of any class of its
capital stock and to furnish to the Representative a copy of each annual
or other report it shall be required to file with the Commission.
(vii) Without the prior written consent of the Representative, for a
period of 90 days after the date of this Agreement, the Company shall not
issue, sell or register with the Commission (other than on Form S-8 or on
any successor form), or otherwise dispose of, directly or indirectly, any
equity securities of the Company (or any securities convertible into or
exercisable or exchangeable for equity securities of the Company), except
for the issuance of the Shares pursuant to the Registration Statement and
the issuance of shares pursuant to the Company's existing stock option
plan. In the event that, during this period, (a) any shares are issued
pursuant to the Company's existing stock option plan or (b) any
registration is effected on Form S-8 or on any successor form, the
Company shall obtain the written agreement of each grantee or purchaser
or holder of such registered securities who obtains 50,000 or more shares
or rights to purchase shares that vest within such 90 day period that,
for a period of 90 days after the date of this Agreement, such person
will not, without the prior written consent of the ▇▇▇▇▇▇▇▇▇▇▇ & Co.,
Inc., offer for sale, sell, distribute, grant any option for the sale of,
or otherwise dispose of, directly or indirectly, or exercise any
registration rights with respect to, any shares of Common Stock (or any
securities convertible into, exercisable for, or exchangeable for any
shares of Common Stock) owned by such person, except that one executive
officer and director may transfer by way of a gift [80,000] shares of
Common Stock to charitable foundations or charitable trusts during the
period of 90 days after the date of this Agreement.
(viii) On or before completion of this offering, the Company shall
make all filings required under applicable securities laws and by the
NYSE (including any required registration under the Exchange Act).
(ix) Prior to a Closing Date, the Company will not issue, directly
or indirectly, without the Representative's prior written consent which
shall not be unreasonably withheld, any press release or other
communication or hold any press conference with respect to the Company or
its activities or this offering, other than
- 22 -
24
press releases issued in the ordinary course of the Company's business
with respect to the Company's operations.
(x) The Company will comply with all of the provisions of any
undertakings contained in the Prospectus or the Registration Statement.
(xi) The Company will apply the net proceeds from the sale of the
Shares substantially in accordance with the description set forth in the
Prospectus.
(xii) Except as stated in this Agreement and in the Prospectus, the
Company will not take, directly or indirectly (except for any action
taken by the Underwriters), any action designed to or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or
resale of the Shares.
(xiii) The Company will not make any payments or distributions to
its shareholders for the purpose of funding, directly or indirectly, any
tax liabilities of its shareholders.
(B) The Company agrees to pay, or reimburse if paid by the Representative,
whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses incident to the public offering
of the Shares and the performance of the obligations of the Company under this
Agreement including those relating to: (i) the preparation, printing, filing
and distribution of the Registration Statement including all exhibits thereto,
each preliminary prospectus, the Prospectus, all amendments and supplements to
the Registration Statement and the Prospectus, and the printing, filing and
distribution of this Agreement; (ii) the preparation and delivery of
certificates for the Shares to the Representative; (iii) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the various jurisdictions referred to in Section 6(A)(v), including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such registration and qualification and the preparation, printing,
distribution and shipment of preliminary and supplementary Blue Sky memoranda;
(iv) the furnishing (including costs of shipping and mailing) to the
Representative and to the Underwriters of copies of each preliminary
prospectus, the Prospectus and all amendments or supplements to the Prospectus,
and of the several documents required by this Section to be so furnished, as
may be reasonably requested for use in connection with the offering and sale of
the Shares by the Underwriters or by dealers to whom Shares may be sold; (v)
the filing fees of the National Association of Securities Dealers, Inc. in
connection with its review of the terms of the public offering; (vi) the
furnishing (including costs of shipping and mailing) to the Representative and
to the Underwriters of copies of all reports and information required by
Section 6(A)(vi); (vii) inclusion of the Shares for quotation on the NYSE; and
(viii) all transfer taxes, if any, with respect to the sale and delivery of the
Shares by the Company to the Underwriters. Subject to the provisions of
Section 9, the Underwriters agree to pay, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated, all costs
and expenses incident to the performance of the obligations of the Underwriters
under this
- 23 -
25
Agreement not payable by the Company pursuant to the preceding sentence,
including, without limitation, the fees and disbursements of counsel for the
Underwriters.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each of their respective officers, directors, partners,
employees, agents and counsel, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all losses, claims,
damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with, and
any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject under
the Securities Act, the Exchange Act or other Federal or state law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto, or arise out of or are based
upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that such indemnity shall not inure to
the benefit of any Underwriter (or any officers, directors, parties,
employees, agents, counsel or any person controlling such Underwriter) on
account of any losses, claims, damages or liabilities arising from the
sale of the Shares to any person by such Underwriter if such untrue
statement or omission or alleged untrue statement or omission was made in
such preliminary prospectus, the Registration Statement or the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with the information furnished in writing to the Company by
the Representative on behalf of any Underwriter specifically for use
therein as described in Section 4(o). This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, each director of the Company, and each officer of
the Company who signs the Registration Statement, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only
insofar as such losses, claims, damages or liabilities arise out of or
are based upon any untrue statement or omission or alleged untrue
statement or omission which was made in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto, in reliance upon and in conformity with information
furnished in writing to the Company by the Representative on behalf of
such Underwriter specifically for use therein; provided, however, that
the obligation of each Underwriter to indemnify the Company (including
any controlling person, director or officer thereof) shall be limited to
the net proceeds received by the Company from such Underwriter.
- 24 -
26
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which
a claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be available
to any party who shall fail to give notice as provided in this Section
7(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was materially
prejudiced by the failure to give such notice but the omission so to
notify such indemnifying party of any such action, suit or proceeding
shall not relieve it from any liability that it may have to any
indemnified party for contribution or otherwise than under this Section.
In case any such action, suit or proceeding shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and the approval by the
indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, except
as provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ
its counsel in any such action, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized in
writing by the indemnifying parties, (ii) the indemnified party shall
have reasonably concluded that there may be a conflict of interest
between the indemnifying parties and the indemnified party in the conduct
of the defense of such action (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf
of the indemnified party) or (iii) the indemnifying parties shall not
have employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying parties. An indemnifying party shall not be liable for
any settlement of any action, suit, proceeding or claim effected without
its written consent; provided, however, that such consent has not been
unreasonably withheld.
8. CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in Section 7(a) is
due in accordance with its terms but for any reason is held to be unavailable
from the Company, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received by the Company from persons other
than the Underwriters, such as persons who control the Company within the
meaning of the Securities
- 25 -
27
Act, officers of the Company who signed the Registration Statement and
directors of the Company, who may also be liable for contribution) to which the
Company and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other from the offering of the Shares
or, if such allocation is not permitted by applicable law or indemnification is
not available as a result of the indemnifying party not having received notice
as provided in Section 7 hereof, in such proportion as is appropriate to
reflect not only the relative benefits referred to above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Underwriters shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts but before deducting
expenses) received by the Company, as set forth in the table on the cover page
of the Prospectus, bear to (y) the underwriting discounts received by the
Underwriters, as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company or the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact related to information supplied by the Company or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 8, (i) in no case shall any Underwriter (except as may be
provided in the Agreement Among Underwriters) be liable or responsible for any
amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, and (ii) the Company shall be liable
and responsible for any amount in excess of such underwriting discount;
provided, however, that 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. For purposes of this Section 8, each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) in the immediately preceding sentence of this Section 8. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties under this
Section, notify such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom contribution may be
sought shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have hereunder or otherwise than
under this Section, except to the extent of any material prejudice resulting
from such failure to notify. No party shall be liable for contribution with
respect to any action, suit,
- 26 -
28
proceeding or claim settled without its written consent; provided, however,
that such written consent has not been unreasonably withheld. The
Underwriters' obligations to contribute pursuant to this Section 8 are several
in proportion to their respective underwriting commitments and not joint.
9. TERMINATION. This Agreement may be terminated with respect to the
Shares to be purchased on a Closing Date by the Representative by notifying the
Company at any time
(a) in the sole and absolute discretion and judgment of the
Representative at or before any Closing Date: (i) if the Company shall
have sustained a material or substantial loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act
which, whether or not said loss shall have been insured, will make it
inadvisable to proceed with the offering; (ii) if there has been, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the
business, operations, earnings, prospects, properties or financial
condition of the Company, whether or not arising in the ordinary course
of business; (iii) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in
the opinion of the Representative will in the future materially disrupt,
the securities markets; (iv) if there has occurred any new outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make
it, in the judgment of the Representative, inadvisable to proceed with
the offering; (v) if there shall be such a material adverse change in
general financial, political or economic conditions or the effect of
international conditions on the financial markets in the United States is
such as to make it, in the judgment of the Representative, inadvisable or
impracticable to market the Shares; (vi) if trading in the Shares has
been suspended by the Commission or trading generally on the NYSE or on
the American Stock Exchange, Inc. has been suspended or limited, or
minimum or maximum ranges for prices for securities shall have been
fixed, or maximum ranges for prices for securities have been required, by
said exchanges or by order of the Commission, the National Association of
Securities Dealers, Inc., or any other governmental or regulatory
authority; or (vii) if a banking moratorium has been declared by any
state or Federal authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required
by this Agreement.
If this Agreement is terminated pursuant to any of its provisions, the
Company shall not be under any liability to any Underwriter, and no Underwriter
shall be under any liability to the Company, except that (y) if this Agreement
is terminated by the Representative or the Underwriters because of any failure,
refusal or inability on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) incurred by them in connection with the
proposed purchase and
- 27 -
29
sale of the Shares or in contemplation of performing their obligations
hereunder and (z) no Underwriter who shall have failed or refused to purchase
the Shares agreed to be purchased by it under this Agreement, without some
reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company
or to the other Underwriters for damages occasioned by its failure or refusal.
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 9) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representative may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representative
may deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representative, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase
such Shares on the terms herein set forth in proportion to their
respective obligations hereunder; provided, that in no event shall the
maximum number of Shares that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 10 by more
than one-ninth of such number of Shares without the written consent of
such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it
may, but is not obligated to, find one or more substitute underwriters
reasonably satisfactory to the Representative to purchase such Shares
upon the terms set forth in this Agreement.
In any such case, either the Representative or the Company shall have the
right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representative and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company and without liability
on the part of the Company, except in both cases as provided in Sections
- 28 -
30
6(B), 7, 8 and 9. The provisions of this Section shall not in any way affect
the liability of any defaulting Underwriter to the Company or the nondefaulting
Underwriters arising out of such default. A substitute underwriter hereunder
shall become an Underwriter for all purposes of this Agreement.
11. MISCELLANEOUS. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement shall
remain in full force and effect, regardless of any indemnification made by or
on behalf of any Underwriter or the Company or any of the officers, directors
or controlling persons referred to in Sections 7 and 8 hereof, and shall
survive delivery of and payment for the Shares. The provisions of Sections
6(B), 7, 8 and 9 shall survive the termination or cancellation of this
Agreement.
This Agreement has been and is made for the benefit of the Underwriters
and the Company and their respective successors and assigns, and, to the extent
expressed herein, for the benefit of persons controlling any of the
Underwriters or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone or telegraph if subsequently confirmed in writing,
(a) if to the Representative, c/o Oppenheimer & Co., Inc., ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: [▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇], and (b) if to the Company, to its agent for service as such agent's
address appears on the cover page of the Registration Statement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflict of laws.
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.
- 29 -
31
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
COACHMEN INDUSTRIES, INC.
By:_______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chairman of the Board and
Chief Executive Officer
- 30 -
32
Confirmed:
▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
By: ▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
Acting severally on behalf of itself and as
representative of the several Underwriters
named in Schedule I annexed hereto
By: _________________________
▇▇▇▇ ▇▇▇▇▇,
Managing Director
- 31 -
33
SCHEDULE I
NUMBER OF FIRM
SHARES TO BE
NAME PURCHASED
____ ______________
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
Total 1,500,000
_________