DRAFT
2,200,000 Shares
ENGINEERED SUPPORT SYSTEMS, INC.
Common Stock
par value $.01 per share
UNDERWRITING AGREEMENT
----------------------
_____________, 1999
CIBC Oppenheimer Corp.
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital & Research Incorporated
c/o CIBC Oppenheimer Corp.
CIBC ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
On behalf of the Several
Underwriters named on
Schedule I attached hereto
Ladies and Gentlemen:
Engineered Support Systems, Inc., a Missouri corporation (the
"Company") and the selling shareholder named on Part I of Schedule II to
this Agreement (the "Firm Shares Selling Shareholder") propose, subject
to the terms and conditions contained herein, to sell to you and the
other underwriters named on Schedule I to this Agreement (the
"Underwriters"), for whom CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., ▇.▇. ▇▇▇▇▇▇▇ & Sons,
Inc., ▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital & Research
Incorporated are acting as representatives (the "Representatives"), an
aggregate of 2,200,000 shares (the "Firm Shares") of the Company's
Common Stock, par value $.01 per share (the "Common Stock"). Of the
2,200,000 Firm Shares, 2,000,000 are to be issued and sold by the
Company and 200,000 are to be sold by the Firm Shares Selling
Shareholder. In addition, those shareholders of the Company named on
Part II of Schedule II to this Agreement (the "Option Shares Selling
Shareholders" and collectively with the Firm Shares Selling Shareholder,
the "Selling Shareholders") propose to grant to the Underwriters an
option to purchase up to an aggregate of additional 330,000 shares (the
"Option Shares") of Common Stock for the purpose of covering over-
allotments in connection with the sale of the Firm Shares. The Firm
Shares and the Option Shares are hereinafter referred to collectively as
the "Shares."
1. Sale and Purchase of the Shares. On the basis of the
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representations, warranties and covenants contained in, and subject to
the terms and conditions of, this Agreement:
(a) The Company agrees to issue and sell to the
Underwriters 2,000,000 Firm Shares and the Firm Shares Selling
Shareholder agrees to sell to the Underwriters 200,000 Firm Shares, and
each of the Underwriters agrees, severally and not jointly, to purchase
from the Company and the Firm Shares Selling Shareholder, at a price of
U.S. $_________ per share (the "Initial Price"), the number of Firm
Shares set forth opposite the name of such Underwriter under the column
"Number of Firm Shares to be Purchased" on Schedule I to this Agreement,
subject to adjustment in accordance with Section 11 hereof.
(b) For purposes of covering over-allotments in connection
with the distribution and sale of the Firm Shares, each Option Shares
Selling Shareholder grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the number of
Option Shares set forth opposite the name of such Option Shares Selling
Shareholder under the column "Number of Option Shares to be Sold" on
Part II of Schedule II to this Agreement, with a per share exercise
price equal to the Initial Price. The number of Option Shares to be
purchased by each Underwriter will be equal to the same percentage
(adjusted by the Representatives to eliminate fractions of shares) of
the total number of Option Shares to be purchased by the Underwriters as
such Underwriter is purchasing of the Firm Shares. Such option may be
exercised only to cover over-allotments in the sale of the Firm Shares
by the Underwriters and may be exercised in whole or in part at any time
on or before 12:00 noon, New York City time, on the business day two (2)
days before the Firm Shares Closing Date (as defined below), and from
the time thereafter within thirty (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
Representatives to the Company no later than 12:00 noon, New York City
time, on the business day two (2) days before the Firm Shares Closing
Date or at least two (2) 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 Representatives for the respective accounts of the
Underwriters, and payment of the purchase price therefor by wire
transfer payable in New York Clearing House (same day) funds drawn to
the order of the Company and the Firm Shares Selling Shareholder against
delivery of the Firm Shares to the Representatives for the several
accounts of the Underwriters, shall take place at the offices of CIBC
▇▇▇▇▇▇▇▇▇▇▇ Corp., CIBC ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York City time, (a) if this
Agreement is executed and delivered before 4:30 p.m. New York time, on
the third business day following the date of this Agreement, (b) if this
Agreement is executed and delivered after 4:30 p.m. New York time, on
the fourth business day following the date of this Agreement, or (c) at
such time on such other date, not later than the fourth business day
following the Effective Date (as defined below), as shall be agreed upon
by the Company and the Representatives (such time and date of delivery
and payment are called the "Firm Shares Closing Date"); provided,
however, that if the Company has not made available to the
Representatives copies of the Prospectus (as defined below) within the
time provided in Section 7(d) hereof, the Firm Shares Closing Date shall
be postponed until the second full business day following delivery of
copies of the Prospectus to the
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Representatives; and provided, further, that the Company shall provide
to the Underwriters wire transfer instructions at least two (2) days
prior to the Firm Shares Closing Date.
In the event the option with respect to the Option Shares is
exercised, delivery by the Option Shares Selling Shareholders of the
Option Shares to the Representatives for the respective accounts of the
Underwriters and payment of the purchase price by wire transfer payable
in New York Clearing House (same day) funds drawn to the order of the
Option Shares Selling Shareholders against delivery of the Option Shares
to the Representatives for the several accounts of the Underwriters,
will take place at the offices of CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. specified above
at the time and on the date (which may be the same date as, but in no
event will be earlier than, the Firm Shares Closing Date) specified in
the notice referred to in Section 1(b) hereof (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."
The Shares will be registered in such names, and certificates
therefor will be in such denominations, as the Representatives shall
request at least two (2) 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) hereof, and will be made
available to the Representatives for checking and packaging, at such
place as is designated by the Representatives, one (1) full business day
before the Firm Shares Closing Date (or the Option Shares Closing Date
in the case of the Option Shares).
It is understood that you, individually, and not as the
Representatives of the several Underwriters, may (but shall not be
obligated to) make payment of the purchase price on behalf of any
Underwriter or Underwriters whose check or checks shall not have been
received by you prior to the Closing Date for the Firm Shares or the
Option Shares to be purchased by such Underwriter or Underwriters. Any
such payment by you shall not relieve any such Underwriter or
Underwriters of any of its or their obligations hereunder.
3. Registration Statement and Prospectus: Public Offering.
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(a) The Company has prepared, in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations thereunder (the "Securities Act
Rules") promulgated by the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-2 (No. 333-74135),
including a preliminary prospectus, relating to the Shares, and has
filed with the Commission such registration statement and such
amendments thereto 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 the Representatives.
(b) As used in this Agreement, the following terms have
the following meanings:
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(i) "Effective Date" means each date on which the
Registration Statement and each post-effective amendment thereto, if
any, was declared effective by the Commission.
(ii) "Prospectus" as used in this Agreement means
the prospectus in the form included in the Registration Statement
(including all documents incorporated by reference therein) or (A) if
Rule 430(A) of the Securities Act Rules is relied on, the term,
"Prospectus" means the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Securities Act Rules and (B) if Rule 434
of the Securities Act Rules is relied on, then (1) the term "Prospectus"
means the "prospectus subject to completion" (as such term is defined in
Rule 434(g) of the Securities Act Rules) together with the term sheet
(the "Term Sheet") required under Rule 434(b) of the Securities Act
Rules and (2) the date of such Prospectus shall be deemed to the date of
the Term Sheet.
(iii) "preliminary prospectus" means each
preliminary prospectus (as described in Rule 434 of the Securities Act
Rules), including all documents incorporated by reference therein,
relating to the Shares and filed with the Commission; and
(iv) "Registration Statement" means the
registration statement described in Section 3(a) hereof and any
registration statement filed pursuant to Rule 462(b) of the Securities
Act Rules, including all documents incorporated by reference therein and
all exhibits filed therewith or incorporated by reference therein, in
the form it became effective, and including all information, if any,
deemed to be part of the registration statement pursuant to Rule 430A of
the Securities Act Rules.
Any reference to the Registration Statement or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-2 under the Securities
Act, as of the date of the Registration Statement or the Prospectus, as
the case may be. As used in this Agreement, the term "Incorporated
Documents" means the documents which at the time are incorporated by
reference in the Registration Statement, the Prospectus or any amendment
or supplement therein.
(c) 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 Representatives deem advisable. The Company herein
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, Warranties and Certain Covenants of the
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Company and the Selling Shareholders.
------------------------------------
(a) The Company represents, warrants and covenants to each
Underwriter and each Selling Shareholder as follows:
(i) The Company meets the requirements for use of
Form S-2 under the Securities Act. The Registration Statement has
become effective and complied on the
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Effective Date, and will comply on each Closing Date and on the date any
post-effective amendment to the Registration Statement shall become
effective, with the applicable provisions of the Securities Act, the
Securities Act Rules, the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and the rules and regulations of the Commission
promulgated under the Exchange Act (the "Exchange Act Rules"). Each
preliminary prospectus, as of its date, and as of the date it, or any
supplement or amendment thereto, was filed with the Commission, complied
with the applicable provisions of the Securities Act, the Securities Act
Rules, the Exchange Act and the Exchange Act Rules. The Prospectus, as
of its date and as of the date on which any supplement or amendment
thereto was filed with the Commission, complied with, and will comply on
each Closing Date and on the date any supplement or amendment thereto is
filed with the Commission, with the applicable provisions of the
Securities Act, the Securities Act Rules, the Exchange Act and the
Exchange Act Rules. No order preventing or suspending the use of the
Registration Statement, any preliminary prospectus or the Prospectus has
been issued by the Commission.
(ii) The Registration Statement did not on the
Effective Date, and will not on each Closing Date and on the date any
post-effective amendment to the Registration Statement shall become
effective, contain an untrue statement of material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. Each preliminary prospectus did not
on its date or on the date any supplement or amendment thereto was filed
with the Commission, contain an untrue statement of material fact or
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Prospectus did not on its date, and did not or will not
on each Closing Date and on the date any supplement or amendment thereto
or was filed with the Commission, contain an untrue statement of
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
(iii) The Incorporated Documents heretofore filed,
when they were filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in all
material respects with the requirements of the Exchange Act and the
Exchange Act Rules; and no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such
amendment was filed), 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 not misleading.
Notwithstanding the foregoing, none of the representations and
warranties in this Section 4 applies to statements in, or omissions
from, the Registration Statement or the Prospectus made in reliance
upon, and in conformity with, information furnished in writing to the
Company by the Underwriters for use in such document. With respect to
the preceding sentence, the Company and the Selling Shareholders
acknowledge that only information furnished in writing by the
Underwriters for use in any such document is [the ________ paragraph(s)]
on the cover page of the Prospectus, the paragraph with respect to
stabilization and market making on [the inside front cover page of the
Prospectus] and the information contained in paragraphs _____ and _____
under the caption "Underwriting" in the Prospectus.
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(iv) The financial statements of the Company and
its Subsidiaries (as defined below), including all notes and schedules
thereto, included or incorporated by reference in the Registration
Statement or the Prospectus present fairly the financial position,
results of operations, the statements of cash flows and the statements
of shareholders' equity and other information purported to be shown
therein of the Company and its Subsidiaries at the respective dates and
for the respective periods to which they apply. Such financial
statements have been prepared in conformity with generally accepted
accounting principles, consistently applied throughout the periods
involved, and include all adjustments necessary for a fair presentation
of the results for such periods; and the other financial and statistical
information and data included or incorporated by reference in the
Registration Statement, the Prospectus or any preliminary prospectus
present fairly the information shown therein and have been prepared on a
basis consistent with such financial statements and the books and
records of the Company. The sections entitled "Summary Consolidated
Historical and Unaudited Pro Forma Financial Information" and "Selected
Consolidated Financial Information" included in the Prospectus present
fairly the information shown therein at the respective dates and for the
respective periods specified and have been presented on a basis
consistent with the financial statements so included or incorporated by
reference in the Prospectus and other financial information and the
Company's audited financial statements not included or incorporated by
reference in the Prospectus. The pro forma balance sheet and statement
of income data in the Prospectus have been prepared in accordance with
the applicable Securities Act Rules and include all adjustments
necessary for a fair presentation of the pro forma financial position
and results of operations of the Company and its Subsidiaries as of the
dates and for the periods to which they apply. Except as otherwise
expressly specified in the Registration Statement or the Prospectus,
such financial statements are in accordance with the books and records
of the Company and its Subsidiaries in all material respects. No other
financial statements are required by the applicable form of the
Registration Statement or the Prospectus or otherwise to be included or
incorporated by reference in the Registration Statement or the
Prospectus.
(v) PricewaterhouseCoopers LLP, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP whose reports are filed with the Commission as a part of
the Registration Statement, are, and during the period covered by their
respective reports were, independent public accountants as required by
the Securities Act and the Securities Act Rules.
(vi) There is no corporation or other entity that
is directly or indirectly owned, in whole or in part, or controlled by
the Company except for Engineered Air Systems, Inc., Associated Products
USA, Inc., Engineered Specialty Plastics, Inc., LifeTime Faucets, Inc.,
Engineered Coil Company, Inc., Air Eagle Holdings, Inc., Keco
Industries, Inc. and Engineered Electric Company (individually, a
"Subsidiary" and collectively, the "Subsidiaries"). Neither the Company
nor any of its Subsidiaries owns, directly or indirectly, any interest
in, or controls, directly or indirectly, any corporation, partnership,
joint venture, association or other business corporation other than the
Company's Subsidiaries or as disclosed in the Registration Statement and
the Prospectus.
(vii) Each of the Company and its Subsidiaries are
duly organized, validly existing and in good standing under the laws of
their respective jurisdictions of organization and are duly qualified as
a foreign corporation in each jurisdiction where such qualification is
required, except for such jurisdictions where the failure to so qualify,
individually
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or in the aggregate, would not have a material adverse effect on the
assets, properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company and its Subsidiaries
taken as a whole (a "Material Adverse Effect"). Neither the Company nor
any of its Subsidiaries owns, leases or licenses any asset or property
or conducts any business outside the United States of America that is
required to be disclosed in the Registration Statement and the
Prospectus other than as disclosed in the Registration Statement and the
Prospectus. Each of the Company and its Subsidiaries has all requisite
power and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates, franchises, and permits of and
from all governmental or regulatory bodies or any other person or entity
("Permits"), to own, lease and license their respective assets and
properties and conduct their respective businesses as now being
conducted and as described in or contemplated by the Prospectus, except
for such Permits which the failure to obtain, individually or in the
aggregate, would not have a Material Adverse Effect; no such Permit
contains a materially burdensome restriction other than as disclosed in
the Registration Statement and the Prospectus; the Company and its
Subsidiaries have fulfilled and performed in all material respects their
obligations with respect to such Permits and, to the knowledge of the
Company, no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof, or any other
material impairment of the rights of the holder thereof; and the Company
has the requisite corporate power and authority, and such Permits to
enter into, deliver and perform this Agreement and to issue and sell the
Shares (except as may be required under the Securities Act, the Exchange
Act, under state and foreign securities and Blue Sky laws and from the
National Association of Securities Dealers, Inc. (the "NASD")). The
Company and each of its Subsidiaries has, and at the Closing Date will
have, all security clearances necessary to complete all current
contracts or agreements between the Company or any of its Subsidiaries,
on the one hand, and any Federal or state regulatory body,
administrative agency or other governmental body, domestic or foreign,
on the other hand.
(viii) Except as set forth in the Prospectus, each
of the Company and its Subsidiaries own or possess adequate and
enforceable rights, either as owner or licensee, to use all patents,
trade secrets, trademarks, service marks, copyrights, licenses, know-how
and other similar rights and proprietary knowledge (collectively, the
"Intangibles") necessary for the conduct of their respective businesses
as described in or as contemplated by the Prospectus. Except as set
forth in the Prospectus, neither the Company nor any of its Subsidiaries
has infringed, is infringing or has received any notice of asserted
rights of others with respect to any Intangibles. The expiration of any
Intangibles would not have a Material Adverse Effect.
(ix) Each of the Company and its Subsidiaries has
good and marketable title in fee simple to each of the items of real
property and good and marketable title to each of the items of personal
property reflected in the financial statements referred to in Section
4(a)(iv) hereof or described in the Prospectus as being owned by any of
them and valid and enforceable leasehold interests in each of the items
real and personal property that are referred to in the Prospectus as
being leased by any of them, in each case, free and clear of all liens,
encumbrances, claims, security interests and defects ("Liens"), other
than those which do not and will not have a Material Adverse Effect.
(x) Except as described in the Prospectus, there
is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, pending
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or, to the Company's knowledge, threatened (and the Company does not
know of any basis therefor) against, or involving the assets, properties
or business of, the Company or any of its Subsidiaries or their
respective directors or officers.
(xi) Subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as described therein, (A) there has not been any
material adverse change in the assets, properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company and its Subsidiaries, whether or not arising from transactions
in the ordinary course of business, (B) neither the Company nor any of
its Subsidiaries has sustained any material loss or interference with
the Company's assets, business, 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 which would
have a Material Adverse Effect and (C) since the date of the latest
balance sheet included in the Prospectus, except as reflected therein,
neither the Company nor any of its Subsidiaries has (1) issued any
securities or incurred any liability or obligation, direct or
contingent, for borrowed money, except liabilities or obligations
incurred in the ordinary course of business or borrowing under the
Company's existing credit facilities), (2) entered into any material
transactions not in the ordinary course of business or (3) declared or
paid any dividend or made any distribution on any shares of its capital
stock or redeemed, purchased or otherwise acquired or agreed to redeem,
purchase or otherwise acquire any shares of its capital stock.
(xii) Neither the Company nor any of its
Subsidiaries nor, to the Company's knowledge, any other party, is in
default in the observance or performance of any term or obligation to be
performed under any contract, indenture, note, agreement, instrument,
lease, license, arrangement or understanding (collectively, a
"Contract") to which the Company or any of its Subsidiaries is a party
or by which their respective properties or businesses are bound and no
event has occurred that with notice or lapse of time or both would
constitute such a default, in any such case, which default or event
would have a Material Adverse Effect. Each such Contract is in full
force and effect and is the legal, valid and binding obligation of the
Company or its Subsidiary, as applicable, and to the Company's
knowledge, the other party or parties thereto, and is enforceable by the
Company or its Subsidiary, as applicable. There is no document or
Contract of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or any Incorporated Document which is not
described or filed as required.
(xiii) Neither the Company nor any of its
Subsidiaries is in violation of any term or provision of its certificate
or articles of incorporation, articles of amalgamation, by-laws,
operating agreement or other charter, organizational or governing
document, as applicable (collectively, "Charter Documents").
(xiv) 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) nor the application
of the net proceeds from the offering and sale of the Shares in the
manner set forth in the Prospectus under the heading "Use of Proceeds"
will (A) 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
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term or provision of, or constitute a default (or an event that with
notice or lapse of time or both would constitute a default) under, or
require any consent or waiver under, any Contract to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries or any of their respective properties or businesses is
bound or any Permit, judgment, order, statute, rule or regulation
applicable to the Company or any of its Subsidiaries (B) result in the
execution or imposition of any Lien upon any properties or assets of the
Company or any of its Subsidiaries or (C) violate any provision of their
respective Charter Documents.
(xv) The authorized, issued and outstanding
capital stock of the Company on (A) an actual basis (prior to the sale
of the Firm Shares), and (B) on an as adjusted basis (after giving
effect to the sale of the Firm Shares) is as set forth under the caption
"Capitalization" in the Prospectus (including the assumptions set forth
in the introductory paragraph to the table and the footnotes to the
table) as of the date specified therein. The description of the capital
stock of the Company in the Registration Statement and the Prospectus
is, and at each Closing Date will be, complete and accurate in all
material respects. There have been no changes in the outstanding
capital stock of the Company since that date. 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 issued and
outstanding securities of the Company and each of its Subsidiaries have
been duly authorized and validly issued, are fully paid and
nonassessable, have been issued in compliance with Federal, state, local
and other applicable laws and were issued without violation of any
preemptive, co-sale or other rights. The Shares, when issued and sold
pursuant to this Agreement, will be duly authorized and validly issued
and fully paid and nonassessable and the Underwriters will receive good
and marketable title to such Shares, free and clear of all Liens. There
are no preemptive, co-sale or other rights to subscribe for or to
purchase, or any restriction upon the voting or transfer of, any of the
securities of the Company or any of its Subsidiaries pursuant to their
respective Charter Documents or any Contract to which the Company or any
of its Subsidiaries is a party or by which any of them or any of their
respective assets or properties may be bound. Except as disclosed in
the Registration Statement and the Prospectus, there is no outstanding
option, warrant, agreement or other right calling for the issuance or
redemption of, and there is no commitment, plan or arrangement to issue
or redeem, any securities of the Company or any of its Subsidiaries.
The Company owns, beneficially and of record, all of the securities of
each of its Subsidiaries free and clear of any Liens, other than those
described in the Prospectus. Except as disclosed in the Prospectus,
neither the Company nor any of its Subsidiaries has any agreement or
understanding with respect to the acquisition or purchase of the
securities of or owned by any person or entity or the acquisition of the
business, assets or liabilities of any person or entity, and neither the
Company nor any of its Subsidiaries has any agreement or understanding
with respect to the disposition or sale of their respective business,
assets or property.
(xvi) There are no holders of securities of the
Company or any of its Subsidiaries who, by reason of the filing of the
Registration Statement under the Securities Act, the execution by the
Company of this Agreement or otherwise, have the right, not previously
satisfied or waived, to request or demand that the Company register
under the Securities Act or any Blue Sky or state securities laws such
securities held by them at any time during the period ending 180 days
after the date of this Agreement.
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(xvii) Each of the Company's officers and directors
and each Selling Shareholder has delivered to CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. its
written agreement (collectively, the "Lock-Up Agreements") that they
will not for a period of 90 days after the date of the Prospectus (the
"Lock-Up Period"), offer to sell, contract to sell or otherwise sell,
dispose of loan, pledge or grant any rights with respect to
(collectively, a "Disposition") any shares of Common Stock, any options
or warrants to purchase any shares of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock
(collectively, "Securities") now owned or hereafter acquired directly by
such person or with respect to which such person has or hereafter
acquires the power of disposition, otherwise than (A) as a bona fide
gift or gifts, provided the donee or donees thereof agree in writing to
be bound by this restriction, (B) as a distribution to partners or
shareholders of such person, provided that such partners or shareholders
agree in writing to be bound by the terms of this restriction, or (C)
with the prior written consent of CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. The foregoing
restriction has been expressly agreed to preclude a holder of Securities
from engaging in any hedging or other transaction which is designed to
or reasonably expected to lead to or result in a Disposition of
Securities during the Lock-Up Period, even if such Securities would be
disposed of by someone other than such holder. Such prohibited hedging
or other transactions would include, without limitation, any short sale
(whether or not against the box) or any purchase, sale or grant of any
right (including, without limitation, any put or call option) with
respect to any Securities or with respect to any security (other than a
broad-based market basket or index) that includes, relates to, or
derives any significant part of its value from, Securities.
Furthermore, such person has also agreed and consented to the entry of
stop transfer instructions with the Company's transfer agent against the
transfer of the Securities held by such person except in compliance with
this restriction. The Company has provided to counsel for the
Underwriters true, accurate and complete copies of all of the Lock-Up
Agreements presently in effect or effected hereby. The Company hereby
represents and warrants that it will not release any of its officers or
directors from any Lock-Up Agreements currently existing or hereafter
effected without the prior written consent of CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.
(xviii) The Company has all requisite power and
authority to execute, deliver and perform its obligations under this
Agreement. The execution and delivery of this Agreement and the
performance by the Company of its obligations under this Agreement and
the performance by the Company of its obligations under this Agreement
have been duly and validly authorized by all requisite corporate action
on the part of the Company. This Agreement is a legal, valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, reorganization, insolvency, moratorium and other similar
laws affecting creditors' rights generally or by the application of
equitable principles.
(xix) No labor dispute with the employees of the
Company or any of its Subsidiaries exists or, to the Company's
knowledge, is threatened, and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its principal
suppliers, distributors or contractors that would have a Material
Adverse Effect. The Company is not aware of any threatened or pending
litigation or dispute between the Company or its Subsidiaries and any of
their executive officers or key employees which, if adversely
determined, could have a Material Adverse Effect and has no reason to
believe that any such officers or employees will not remain in the
employment of the Company for the foreseeable future.
-10-
(xx) No transaction has occurred between or among
the Company or any of its Subsidiaries and any of their officers,
directors or five percent (5%) shareholders or any affiliate or
affiliates of any such officer, director or five percent (5%)
shareholder that is required to be described in the Registration
Statement, the Prospectus or the Incorporated Documents except those
that have been so disclosed.
(xxi) Neither the Company nor any of its
Subsidiaries has taken, or will take, directly or indirectly, any action
designed, or that might reasonably be expected, to cause or result in,
or that has constituted, or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of the Common
Stock.
(xxii) Each of the Company and its Subsidiaries has
filed all Federal, state, local and foreign tax returns that were
required to be filed to the date hereof (each of which returns are true,
correct and complete in all material respects), or has received
extensions thereof, and has paid all taxes shown on such returns and all
assessments received by it to the extent that the same are material and
have become due, and there are no tax audits or investigations pending
which, if adversely determined, would have a Material Adverse Effect.
(xxiii) The books, records and accounts of the
Company and its Subsidiaries accurately and fairly reflect, in
reasonable detail, all transactions in and dispositions of the assets
of, and the results of operations of, the Company and its Subsidiaries.
Each of the Company and its Subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization, (B) transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally
accepted accounting principles and to maintain asset accountability, (C)
access to assets is permitted only in accordance with management's
general or specific authorization and (D) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xxiv) Neither the Company nor any of its
Subsidiaries nor any director, officer, employee, consultant or agent of
the Company or any of its Subsidiaries (in the course of such person's
actions for, or on behalf of, the Company or such Subsidiary) has used
any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity or made any
direct or indirect unlawful payment to any foreign or domestic
governmental official or employee from corporate funds. Neither the
Company nor any of its subsidiaries nor, to the Company's knowledge, any
employee or agent of the Company or any subsidiary has received or
retained any funds in violation of any law, rule or regulation. Neither
the Company nor any of its Subsidiaries nor, to the Company's knowledge,
any director, officer, employee, consultant or agent of the Company or
its Subsidiaries (in the course of such person's actions for, or on
behalf of, the Company or such Subsidiary) has violated or is in
violation of any provisions of the Foreign Corrupt Practices Act of
1977, as amended, or made any bribe, rebate, payoff, influence, payment,
kickback or other unlawful payment.
(xxv) Each approval, consent, order, authorization,
designation, declaration or filing of, or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and
-11-
the consummation of the transactions herein contemplated required by the
NASD or as may be necessary to qualify the Shares for public offering by
the Underwriters under state or foreign securities or Blue Sky laws, has
been obtained or made and is in full force and effect.
(xxvi) The Shares have been duly authorized for
quotation on The Nasdaq National Market ("NMS") upon official notice of
issuance. The Company has duly executed a Nasdaq National Market
Notification Form for Listing of Additional Shares. A registration
statement relating to the Common Stock has been filed on Form 8-A
pursuant to Section 12 of the Exchange Act.
(xxvii) The Company has duly filed on a timely basis
with the Commission all reports, registration statements and other
documents required by the Securities Act, the Securities Act Rules, the
Exchange Act and the Exchange Act Rules. All of such reports,
registration statements and other documents, when they were filed with
the Commission, conformed in all material respects to the requirements
of the Securities Act, the Securities Act Rules, the Exchange Act and
the Exchange Act Rules, as appropriate. None of such reports,
registration statements or other documents contained an 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 not
misleading.
(xxviii) There are no affiliations with the NASD among
the Company's officers, directors or, to the Company's knowledge, any
five percent (5%) or greater securityholder of the Company, except as
disclosed in writing to the Representatives.
(xxix) The Company has not distributed and, prior to
the last to occur of (i) the last Closing Date or (ii) completion of the
distribution of the Shares, will not distribute without the prior
written consent of the Representatives any offering material directly or
indirectly in connection with the offering and sale of the Shares other
than the preliminary prospectus and the Prospectus.
(xxx) The Company and its Subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are customary in the businesses in
which they are engaged or propose to engage after giving effect to the
transactions described in the Prospectus. Each of the Company and its
Subsidiaries maintains insurance of the types and in the amounts
generally deemed adequate for their respective businesses including, but
not limited to, insurance covering real and personal property owned or
leased by the Company or such Subsidiary against theft, damage,
destruction, acts of vandalism and all other risk customarily insured
against, all of which insurance is in full force and effect. Neither
the Company nor any of its Subsidiaries has been refused any insurance
coverage sought or applied for, and the Company has no reason to believe
that it or any of its Subsidiaries will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not result in a Material
Adverse Effect. The Company has insurance covering the Company, its
officers and directors for claims of up to $_________ arising under the
Securities Act, the Securities Act Rules, the Exchange Act and the
Exchange Act Rules as well as the laws of the states and other
jurisdictions in which the Shares are sold
-12-
that relate to any untrue statement or alleged untrue statement of
material fact or any omission or alleged omission of material fact in
the Registration Statement or Prospectus.
(xxxi) There are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company or any of its
Subsidiaries to or for the benefit of any of the officers or directors
of the Company or any of its Subsidiaries or any affiliate or related
person of any of them.
(xxxii) (A) There has been no storage, disposal,
generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes,
hazardous wastes or hazardous substances by the Company or
any of its Subsidiaries (or, to the knowledge of the
Company, any of their respective predecessors in interest)
at, upon or from any of the property now or previously owned
or leased by the Company or any of its Subsidiaries, in
violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except
for any violation or remedial action which would not have,
or could not be reasonably likely to have, individually or
in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no
material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or
into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substance due to or caused by the Company or any
of its Subsidiaries has knowledge, except for any such
spill, discharge, leak, emission, injection, escape, dumping
or release which would not have or would not be reasonably
likely to have, individually or in the aggregate with all
such spills, discharges, leaks, emissions, injections,
escapes, dumpings and release, a Material Adverse Effect;
and the terms "hazardous wastes," "toxic wastes," "hazardous
substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental
protection.
(B) (1) Each of the Company and its Subsidiaries
are in compliance in all material respects with all rules,
laws and regulations relating to the use, treatment, storage
and disposal of toxic substances and protection of health or
the environment ("Environmental Laws") that are applicable
to their respective businesses, (2) neither the Company nor
any of its Subsidiaries has received any notice from any
governmental authority or third party of an asserted claim
under Environmental Laws, (3) each of the Company and its
Subsidiaries have received all Permits and other approvals
required of it under applicable Environmental Laws to
conduct their respective businesses and is in compliance
with all terms and conditions of any such permit, license or
approval, and (4) no property that is or has been owned,
leased or occupied by the Company or any of its Subsidiaries
has been designated as a Superfund site pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act
-13-
of 1980, as amended (42 U.S.C. Section 9601 et seq.), or
otherwise designated as a contaminated site under applicable
Federal, state or local law.
(xxxiii) The Company is not, and after application of
the net proceeds from the offering as described in the Prospectus will
not be, an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
(xxxiv) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075, Florida
Statutes.
(xxxv) The Company is in full compliance with the
Marketplace Rules of the National Association of Securities Dealers with
respect to its audit committee, including, without limitation, Rule
4460, which requires that an issuer maintain an audit committee composed
of a majority of independent directors.
(b) Each of the Selling Shareholders, severally and not
jointly, represents, warrants and covenants to each Underwriter as
follows:
(i) the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. First Amended and
Restated Revocable Living Trust and The ▇▇▇▇▇▇▇▇ Family Voting Trust
each have been duly organized and each is validly existing in good
standing under the laws of the state of its organization;
(ii) Such Selling Shareholder has all requisite
power and authority to execute, deliver and perform its obligations
under this Agreement. The execution and delivery of this Agreement and
the performance by such Selling Shareholder of its obligations under
this Agreement have been duly and validly authorized by all requisite
action on the part of such Selling Shareholder. This Agreement is a
legal, valid and binding agreement of such Selling Shareholder
enforceable against such Selling Shareholders in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally or by the application of equitable
principles.
(iii) Such Selling Shareholder has duly executed
and delivered a custody agreement with respect to such Selling
Shareholder (the "Custody Agreement") in the form heretofore delivered
to the Representatives, appointing [INSERT NAME OF ATTORNEY-IN-FACT] as
such Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact")
with authority to execute, deliver and perform this Agreement on behalf
of such Selling Shareholder and appointing ______________________, as
custodian thereunder (the "Custodian"). Certificates in negotiable
form, endorsed in blank or accompanied by blank stock powers duly
executed, with signatures appropriately guaranteed, representing the
Shares to be sold by such Selling Shareholder hereunder have been
deposited with the Custodian pursuant to the Custody Agreement for the
purpose of delivery pursuant to this Agreement. Such Selling
Shareholder has full power and authority to enter into the Custody
Agreement and to perform its obligations thereunder. The execution and
delivery of the Custody Agreement have been duly authorized by all
necessary action of such Selling Shareholder; the Custody Agreement has
been duly executed and delivered by such
-14-
Selling Shareholder and, assuming due authorization, execution and
delivery by the Custodian, is the legal, valid, binding instrument of
such Selling Shareholder, enforceable in accordance with its terms.
Such Selling Shareholder agrees that each of the Shares represented by
the certificates on deposit with the Custodian is subject to the
interests of the Underwriters, the Company and the other Selling
Shareholders hereunder, that the arrangements made for such custody, the
appointment of the Attorney-in-Fact and the right, power and authority
of the Attorney-in-Fact to execute and deliver this Agreement and to
carry out the terms of this Agreement are to that extent irrevocable and
that the obligations of such Selling Shareholder hereunder shall not be
terminated, except as provided in this Agreement or the Custody
Agreement, by any act of such Selling Shareholder, by operation of law,
or otherwise, whether by its liquidation or dissolution. If any Selling
Shareholder shall liquidate or dissolve or if any other event should
occur, before the delivery of such Shares hereunder, the certificates
for such Shares deposited with the Custodian shall be delivered by the
Custodian in accordance with the respective terms and conditions of this
Agreement as if such liquidation or dissolution or other event had not
occurred, regardless of whether or not the Custodian or the Attorney-in-
Fact shall have received notice thereof.
(iv) Neither the execution, delivery and
performance of this Agreement and the Custody Agreement by or on behalf
of such Selling Shareholder nor the consummation of any of the
transactions contemplated hereby and thereby (including without
limitation, the sale of Shares by such Selling Shareholder) will (A)
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 that with notice
or lapse of time or both would constitute a default) under, or require
any consent or waiver under, any Contract to which such Selling
Shareholder is a party or by which such Selling Shareholder or any of
such Selling Shareholder's properties or businesses is bound or any
Permit, judgment, order, statute, rule or regulation applicable to such
Selling Shareholder or (B) result in the execution or imposition of any
Lien upon any properties or assets of such Selling Shareholder.
(v) Such Selling Shareholder will have at each
Closing Date, good and marketable title to the Shares to be sold by such
Selling Shareholder to the Underwriters on such Closing Date hereunder,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, restrictions on transfer, claim or equity; and upon
delivery to the Underwriters of the Shares to be sold by such Selling
Shareholder hereunder and payment of the purchase price therefor by the
Underwriters as herein contemplated, each of the Underwriters will
receive good and marketable title to its ratable share of the Shares
purchased by it from such Selling Shareholder, free and clear of any
Lien.
(vi) All authorizations, approvals and consents
necessary for the execution, delivery and performance by or on behalf of
such Selling Shareholder of this Agreement and the Custody Agreement,
and the sale and delivery by such Selling Shareholder to the
Underwriters of the Shares to be sold by such Selling Shareholder
hereunder (other than, at the time of the execution hereof, the issuance
of the order of the Commission declaring the Registration Statement
effective and such authorizations, approvals or consents as may be
necessary under state securities laws) have been obtained and are in
full force and effect; and such Selling Shareholder has all requisite
right, power and authority to enter into and perform its obligations
under this Agreement and the Custody Agreement and to sell, transfer and
deliver the Shares to be sold by such Selling Shareholder to the
Underwriters hereunder.
-15-
(vii) To the best knowledge of such Selling
Shareholder (without inquiry or investigation), each of the Registration
Statement and the Prospectus does not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
each Preliminary Prospectus does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(viii) Such Selling Shareholder has not taken, and
will not take, directly or indirectly, any action designed, or that
might reasonably be expected, to cause or result in, or that has
constituted, or that might reasonably be expected to constitute,
stabilization or manipulation of the price of the Common Stock of the
Company to facilitate the sale or resale of the Shares pursuant to the
distribution contemplated by this Agreement, and other than as permitted
by the Securities Act, such Selling Shareholder has not distributed and
will not distribute any prospectus or other offering material in
connection with the offering and sale of the Shares.
(ix) The sale by such Selling Shareholder of
Shares pursuant hereto is not prompted by any adverse information
concerning the Company that is not set forth in the Registration
Statement or the Prospectus.
(x) Such Selling Shareholder has reviewed the
Prospectus and the Registration Statement, and the information regarding
such Selling Shareholder set forth therein under the caption "Principal
and Selling Shareholders" is complete and accurate.
(xi) At the Time of Delivery, all stock transfer
or other taxes (other than income taxes) which are required to be paid
in connection with the sale and transfer of Shares to be sold by such
Selling Shareholder to the several Underwriters hereunder will have been
fully paid or provided for by such Selling Shareholder and all laws
imposing such taxes will have been fully complied with.
(xii) The Selling Shareholder has not distributed
and, prior to the last to occur of (i) the last Closing Date or (ii)
completion of the distribution of the Shares will not distribute without
the prior written consent of the Representatives any offering material
directly or indirectly in connection with the offering and sale of the
Shares.
(xiii) None of the Company, counsel to the Company,
the Underwriters, or counsel to the Underwriters, or any of them, has
made any representations or warranties or provided any information to
such Selling Shareholder with respect to the tax consequences of the
sale of the Shares.
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 to be delivered at each Closing Date are subject to fulfillment
of each of the following terms and conditions:
-16-
(a) Notification that the Registration Statement has
become effective and the Prospectus was timely filed with the Commission
shall have been received by the Representatives.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus was or shall be in effect, 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 or the securities authorities of any
state or other jurisdiction 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 Representatives.
(c) The representations and warranties of the Company and
each Selling Shareholder contained in this Agreement and in the
certificate delivered pursuant to Sections 5(e) and 5(f) hereof shall
have been true and correct in all respects when made and shall be true
and correct in all respects 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 Representatives shall have been satisfied that (i)
as of each Closing Date, the statements made in the Registration
Statement and the Prospectus were true and correct and none of such
documents omitted to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading, (ii) since the Effective Date, no event has
occurred that should have been set forth in the Prospectus that has not
been so set forth, (iii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any Material Adverse Effect or any development
involving a prospective Material Adverse Effect and, since such dates,
except in the ordinary course of business, neither the Company nor any
of its Subsidiaries has entered into any material transaction not
described in the Prospectus, (iv) neither the Company nor any of its
Subsidiaries has any material contingent obligations that are not
disclosed in the Registration Statement and the Prospectus, (v) there
are no pending or known threatened legal proceedings to which the
Company or any of its Subsidiaries is a party or of which property of
the Company or any of its Subsidiaries is the subject that might result
in a Material Adverse Effect and that are not disclosed in the
Prospectus, (vi) there is no Contract that is required to be filed as an
exhibit to the Registration Statement or the Incorporated Documents that
has not been so filed, and (vii) there has not been any material change
in the market for securities in general or in political, financial or
economic conditions from those reasonably foreseeable as to render it
impracticable in the Representatives' reasonable judgment to make a
public offering of the Shares, or a material adverse change in market
levels for securities in general (or those of companies in particular)
in financial or economic conditions that render it inadvisable to
proceed.
(e) The Representatives shall have received on the Closing
Date a certificate, dated the Closing Date, signed by the Chief
Executive Officer of the Company stating that he has carefully examined
the Registration Statement and the Prospectus and that the statements
-17-
included in Sections 5(b), 5(c) and clauses (i) through (vi) of Section
5(d) hereof are true and correct.
(f) The Representatives shall have received on the Closing
Date a certificate, dated the Closing Date, signed by each of the
Selling Shareholders, stating that each has carefully examined the
Registration Statement and the Prospectus and that the statements
included in Sections 5(b), 5(c) and clauses (i) and (ii) of Section 5(d)
hereof are true and correct.
(g) The Representatives shall have received at the time
this Agreement is executed and on each Closing Date a letter or letters
signed by PricewaterhouseCoopers LLP, addressed to the Company and the
Representatives and dated, respectively, the date of this Agreement and
each such Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Securities Act and the Securities Act Rules, that the
response to Item 10 of the Registration Statement is correct insofar as
it relates to them and stating in effect that:
(i) in their opinion, the financial statements
and any supplementary financial information and schedules (and, if
applicable, financial forecasts and pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act, the Securities Act Rules, the Exchange Act or the
Exchange Act Rules, as applicable; and, if applicable, they have made a
review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company and its
Subsidiaries for the periods specified in such letter, as indicated in
their reports thereon, copies of which have been separately furnished to
the Representatives;
(ii) they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus or the Incorporated Documents, as
indicated in their reports thereon, copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures, including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (v)(A)(1) below comply as to form in all material respects
with the applicable accounting requirements of the Securities Act, the
Securities Act Rules, the Exchange Act or the Exchange Act Rules,
nothing came to their attention that caused them to believe that the
unaudited condensed consolidated financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of the Securities Act, the Securities Act Rules, the
Exchange Act and the Exchange Act Rules;
(iii) the unaudited selected financial information
with respect to the consolidated results of operations and financial
position of the Company and its Subsidiaries for the five (5) most
recent fiscal years included in the Prospectus and included or
incorporated by
-18-
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial
statements for such five (5) fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form 10-K
for such fiscal years;
(iv) they have compared the information in the
Prospectus under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in such
letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(v) on the basis of limited procedures, not
constituting an examination in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
Subsidiaries, inspection of the minute books of the Company and its
Subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its Subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (1) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act and the Exchange Act Rules,
or (2) any material modifications should be made to the
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity
with generally accepted accounting principles;
(B) any other unaudited income statement
data and balance sheet items included in the Prospectus do
not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and
items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with
the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated
by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which
were not included in the Prospectus but from which were
derived the unaudited condensed financial statements
referred to in paragraph (A) above and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in paragraph (B) above were not
determined on a basis substantially consistent
-19-
with the basis for the audited financial statements included
or incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting
requirements of the Securities Act and the Securities Act
Rules or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of
those statements;
(E) as of a specified date not more than
five (5) days prior to the date of such letter, there have
been any changes in the consolidated capital stock (other
than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term
debt of the Company and its Subsidiaries, or any decreases
in consolidated net current assets or shareholders' equity
or other items specified by the Representative, or any
increase in any items specified by the Representative, in
each case as compared with amounts shown in the last balance
sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the
latest financial statements included or incorporated by
reference in the Prospectus to the specified date referred
to in paragraph (E) above there were any decreases in
consolidated net revenues or operating profit or the total
or per share amounts of consolidated net income or other
items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year
and with any other period of corresponding length specified
by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vi) in addition to the examination referred to in
their reports included or incorporated by reference in the Prospectus
and the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iv) and (v) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its Subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference) or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such
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amounts, percentages and financial information with the accounting
records of the Company and its Subsidiaries and have found them to be in
agreement.
References to the Registration Statement and the Prospectus in
this paragraph (f) are to such documents as amended and supplemented at
the date of the letter.
The letter will not disclose any change, or any development
involving a prospective change, in or affecting the business or
properties of the Company and its Subsidiaries, taken as a whole, that
in the Representatives' sole judgment makes it impracticable or
inadvisable to proceed with the sale of Shares on such Closing Date.
(h) The Representatives shall have received at the time
this Agreement is executed and on each Closing Date a letter or letters
signed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Company and the
Representatives and dated, respectively, the date of this Agreement and
each such Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Securities Act and the Securities Act Rules, that the
response to Item 10 of the Registration Statement is correct insofar as
it relates to them and stating in effect that, in their opinion, the
financial statements and any supplementary financial information and
schedules (and, if applicable, financial forecasts and/or pro forma
financial information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act, the Securities Act Rules, the
Exchange Act or the Exchange Act Rules, as applicable.
References to the Registration Statement and the Prospectus in
this paragraph (g) are to such documents as amended and supplemented at
the date of the letter.
(i) Armstrong, Teasdale, LLP, counsel for the Company,
shall have furnished to the Representatives their written opinion, dated
such Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) the Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Missouri;
(ii) the Company is duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which failure to be so
qualified would subject it to material liability or disability;
(iii) each of the Company's Subsidiaries has been
duly organized and is validly existing as a corporation in good standing
under the laws of their respective jurisdictions of incorporation. Each
of the Company's Subsidiaries is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the failure to be so
qualified would have a Material Adverse Effect. All the outstanding
shares of capital stock of each of the Company's Subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable
and, to the best of such counsel's knowledge, are wholly-owned by the
Company, free and clear of any pledge, lien, encumbrance, security
interest, restriction, claim, equitable interest or other defect in
title;
-21-
(iv) the Company and each of its Subsidiaries has
the requisite corporate power and authority to own, lease and license
its assets and properties and conduct its business as described in the
Registration Statement and the Prospectus;
(v) to the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property of the Company or any
of its Subsidiaries is the subject which, if determined adversely to the
Company or any of its Subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(vi) the Company has the requisite corporate power
and authority to execute, deliver and perform all of its obligations
under this Agreement and to issue, sell and deliver the Shares to the
several Underwriters as provided herein; all necessary corporate action
has been duly and validly taken by the Company to authorize the
execution, delivery and performance of this Agreement; this Agreement
has been duly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms;
(vii) the issuance and sale of the Shares by the
Company and the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, nor will such action
result in any violation of the provisions of the Charter Documents of
the Company or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their
properties;
(viii) no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the issuance and sale of the Shares or
the consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Securities Act of the
Shares, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purpose and distribution of the
Shares by the Underwriters;
(ix) the Company and its Subsidiaries have good
and marketable title in fee simple to all real property owned by them,
in each case free and clear of all Liens except such as are described in
the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its Subsidiaries; and any real
property and buildings held under lease by the Company and its
Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to
-22-
be made of such property and buildings by the Company and its
Subsidiaries in giving the opinion in this clause, such counsel may
state that no examination of record titles for the purpose of such
opinion has been made, and that they are relying upon a general review
of the titles of the Company and its Subsidiaries, upon opinions of
local counsel and abstracts, reports and policies of title companies
rendered or issued at or subsequent to the time of acquisition of such
property by the Company or its Subsidiaries, upon opinions of counsel to
the lessors of such property and, in respect to matters of fact, upon
certificates of officers of the Company or its Subsidiaries, provided
that such counsel shall state that they believe that both the
Representatives and they are justified in relying upon such opinions,
abstracts, reports, policies and certificates;
(x) neither the Company nor any of its
Subsidiaries is in violation of its Charter Documents or other
organizational or governing instruments or in default in the performance
or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound;
(xi) the authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus under the
caption "Capitalization;" all of the outstanding shares of Common Stock
have been, and the Shares to be issued on such Closing Date, upon
issuance and delivery and payment therefor in the manner described
herein, will be, duly authorized, validly issued, fully-paid and
nonassessable;
(xii) the statements set forth in the Prospectus
under the caption "Description of Common Stock," insofar as they purport
to constitute a summary of the terms of the Common Stock and under the
caption "Underwriting," insofar as they purport to describe the
provisions of U.S. laws and documents referred to therein, are accurate,
complete and fair;
(xiii) the form of certificate evidencing the Shares
conforms to the requirements of the Missouri General and Business
Corporation Law;
(xiv) the Company is not, and will not, following
consummation of the Offering and the application of the net proceeds
therefrom, become, an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the Investment
Company Act;
(xv) the Shares have been conditionally approved
for quotation on the NMS;
(xvi) upon delivery of and payment for the Shares
being issued and sold by the Company, the several Underwriters will
receive good and valid title to such Shares, free and clear of all
liens, encumbrances, equities, security interests, claims or other
defects, assuming at such time that the Underwriters acquire such Shares
in good faith without notice of any adverse claim (within the meaning of
the Uniform Commercial Code provisions that govern the Company's sale of
Shares to the Underwriters); and
(xvii) the Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the Company
prior to such Closing Date (other than the financial statements, notes
and related schedules and other fiscal and statistical data
-23-
included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the Securities Act Rules; and each of the
Incorporated Documents (except for the financial statements and notes
and schedules and other fiscal and statistical data included therein, as
to which such counsel need not express any opinion) complied when filed
pursuant to the Exchange Act as to form in all material respects with
the requirements of the Securities Act and the Securities Act Rules and
the Exchange Act and the Exchange Act Rules.
In addition such counsel will state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the Representatives and representatives
of the independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in such
documents, on the basis of the foregoing, no facts have come to the
attention of such counsel which lead such counsel to believe that 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 not misleading; that the Prospectus, as of its date or as of any
Closing Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be therein or necessary to
make the statements therein not misleading; or that any Incorporated
Document, at the time it was filed with the Commission, 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 not misleading; provided, however, that in making the foregoing
statements, such counsel will not be required to express any view as to
the financial statements and supporting schedules and other financial
information derived therefrom, included in, incorporated by reference in
or omitted from such documents.
(j) ____________________, counsel for the Selling
Shareholders, shall have furnished to the Representatives their written
opinion, dated such Closing Date, in form and substance satisfactory to
the Representatives, to the effect that:
(i) the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. First Amended and
Restated Revocable Living Trust and The ▇▇▇▇▇▇▇▇ Family Voting Trust
each have been duly organized and each is validly existing in good
standing under the laws of the state of its organization;
(ii) each Selling Shareholder has the requisite
power and authority to execute deliver and perform all of its
obligations under this Agreement and the Custody Agreement and to sell
and deliver the Shares being sold by such Selling Shareholder to the
several Underwriters as provided herein; all necessary action has been
duly and validly taken by each Selling Shareholder to authorize the
execution, delivery and performance of this Agreement and the Custody
Agreement; this Agreement and the Custody Agreement have been duly
authorized, executed and delivered by the each Selling Shareholder and
constitute the legal, valid and binding obligations of each Selling
Shareholder enforceable in accordance with their respective terms;
-24-
(iii) the sale of the Shares being sold by each
Selling Shareholder and the compliance by each Selling Shareholder with
all of the provisions of this Agreement and the Custody Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which any Selling Shareholder is a party or by
which any Selling Shareholder is bound or to which any of the property
or assets of any Selling Shareholder is subject, nor will such action
result in any violation of the provisions of any Charter Documents of
any Selling Shareholder or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over any Selling Shareholder or any of their properties;
(iv) no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the sale of the Shares being sold by any
Selling Shareholder or the consummation by the Selling Shareholders of
the transactions contemplated by this Agreement or the Custody
Agreement, except the registration under the Securities Act of the
Shares, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purpose and distribution of the
Shares by the Underwriters;
(v) upon delivery of and payment for the Shares
being sold by each Selling Shareholder, the several Underwriters will
receive good and valid title to such Shares, free and clear of all
liens, encumbrances, equities, security interests, claims or other
defects, assuming at such time that the Underwriters acquire such Shares
in good faith without notice of any adverse claim (within the meaning of
the Uniform Commercial Code provisions that govern the Selling
Shareholders' sale of Shares to the Underwriters); and
(vi) there are no transfer or other taxes (other
than income taxes) known to such counsel payable in connection with the
sale and delivery of Shares by the Selling Shareholders to the several
Underwriters or all such taxes have been fully paid in connection with
such sale and delivery.
(k) 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 Representatives shall have received from
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Underwriters, favorable
opinions, addressed to the Representatives, with respect to the Shares,
the Registration Statement, the Prospectus, and such other related
matters as the Representatives may reasonably request, and the Company
shall have furnished to Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ such documents as
they may reasonably request for the purpose of enabling them to pass
upon such matters.
(l) The Representatives shall have received on each
Closing Date (i) a certificate, including exhibits thereto, addressed to
the Representatives and dated such Closing Date, of the Secretary or an
Assistant Secretary of the Company, signed in such officer's capacity as
such officer, as to (A) the Company's Charter Documents, (B) the
Company's board of directors actions authorizing (1) the preparation,
execution and filing of the Registration Statement, (2) the execution
and delivery of this Agreement, (3) the performance of the
-25-
transactions contemplated by this Agreement, the Registration Statement
and the Prospectus and (4) the offering of the Shares and (C) the
incumbency of the person or persons authorized to execute and deliver
the Registration Statement, this Agreement, and any other documents
contemplated by the offering of the Shares and (ii) similar
certificates, as applicable, as to the Selling Shareholders selling
Shares on such Closing Date.
(m) The Representatives shall have received on each
Closing Date, certificates, dated no more than five business days prior
to the Closing Date, of the Secretaries of State (or other relevant
authorities) of each State where the Company and each of its
Subsidiaries is incorporated or qualified as a foreign corporation as to
the good standing of the Company and each of its Subsidiaries. In
addition, the Representatives shall have received copies of all Charter
Documents of the Company and each of its Subsidiaries certified by the
Secretary of State (or other relevant authorities) of the jurisdiction
of incorporation of each of the Company and each of its Subsidiaries.
(n) The Company shall have made all filings required under
applicable securities laws and by the NMS.
(o) CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. shall have received copies of
the Lock-Up Agreements executed by each entity or person described in
Section 4(xvii) hereof.
(p) The Company and the Selling Shareholders shall have
furnished to the Representatives such further certificates and documents
as the Representatives reasonably request.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably
satisfactory to Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇. The Company will furnish
the Representatives with such number of confirmed copies of such
opinions, certificates, letters and documents as the Representatives
shall reasonably request.
6. Conditions of the Company's and the Selling Shareholders'
---------------------------------------------------------
Obligations. The obligation of the Company to issue and sell the
-----------
Shares to be issued and sold by it at each Closing Date, and of the
Selling Shareholders to sell the Shares being sold by each of them at
each Closing Date, is subject to fulfillment of each of the following
conditions:
(a) The Registration Statement shall be effective.
(b) No order preventing or suspending the use of the
Prospectus or the Registration Statement shall be in effect and no
proceedings for such purposes shall be pending before or threatened by
the Commission or the securities authorities of any state or other
jurisdiction.
7. Covenants of the Company. The Company covenants and agrees
------------------------
with each of the several Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof, if not effective at
the time and date that this Agreement is executed and delivered by the
parties hereto, to become effective as promptly as possible. The
Company
-26-
will use its best efforts to cause any abbreviated registration
statement pursuant to Rule 462(b) of the Securities Act Rules as may be
required subsequent to the date the Registration Statement is declared
effective to become effective as promptly as possible. The Company will
notify the Representatives, promptly after it shall receive notice
thereof, of the time when the Registration Statement, any subsequent
amendment to the Registration Statement or any abbreviated registration
statement has become effective or any supplement to the Prospectus has
been filed. If the Company omitted information from the Registration
Statement at the time it was originally declared effective in reliance
upon Rule 430A(a) of the Securities Act Rules, the Company will provide
evidence satisfactory to the Representatives that the Prospectus
contains such information and has been filed, within the time period
prescribed, with the Commission pursuant to Subparagraph (1) or (4) of
Rule 424(b) of the Securities Act Rules or as part of a post-effective
amendment to the Registration Statement as originally declared effective
which is declared effective by the Commission. The Company shall
promptly advise the Representatives of (i) any request by the Commission
for any amendment to the Registration Statement or the Prospectus or for
any additional information, (ii) 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 (iii) 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 any
amendment to the Registration Statement or supplement to the Prospectus
unless the Company has furnished the Representatives a copy for its
review prior to filing and shall not file any such proposed amendment or
supplement to which the Representatives shall 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.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Securities Act and the
Securities Act Rules, any event occurs as a result of which the
Prospectus would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it will be necessary to supplement the Prospectus
to comply with the Securities Act or the Securities Act Rules, the
Company promptly will prepare and file with the Commission, subject to
the second sentence of Section 7(a) hereof, a supplement that shall
correct such statement or omission or that will effect such compliance.
(c) The Company will make generally available to its
securityholders and to the Representatives as soon as practicable, but
not later than forty-five (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 occurs (or 90 days if such 12-month period coincides
with the Company's fiscal year), an income statement (which need not be
audited) of the Company, covering such 12-month period, that satisfies
the provisions of Section 11(a) of the Securities Act or Rule 158 of the
Securities Act Rules.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and as many copies of
any preliminary prospectus and the Prospectus as the Representatives may
reasonably request.
-27-
Provided, however, that the Company shall use reasonable efforts to
furnish copies of the Prospectus and any term sheet or abbreviated term
sheet under Rule 434 of the Securities Act Rules no later than the first
full business day following the first day that Shares are traded.
(e) In the event it becomes necessary to qualify the
Shares for sale in various states, the Company shall cooperate with the
Representatives and their counsel in endeavoring to qualify the Shares
for offer and sale in connection with this offering under the state
securities and Blue Sky laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so 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.
(f) For a period of five (5) years after the date of this
Agreement, the Company will supply to the Representatives, 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 Representatives a copy
of each annual and other report it is required to file with the
Commission. During such five-year period, if the Company shall continue
to have active subsidiaries, the foregoing financial statements shall be
on a consolidated basis to the extent that the amounts of the Company
and its Subsidiaries are consolidated, and shall be accompanied by
similar financial statements for any significant subsidiary which is not
so consolidated.
(g) The Company will take such steps as shall be necessary
to ensure that neither the Company nor any of its Subsidiaries shall
become an "investment company" within the meaning of the Investment
Company Act and the rules and regulations thereunder.
(h) Without the prior written consent of the
Representatives, for a period of 90 days after the date of this
Agreement, the Company will not and will cause its Subsidiaries and or
any of its individual directors and executive officers, not to issue,
sell, offer, contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any equity securities of
the Company (or any securities convertible into or exercisable or
exchangeable for or rights to purchase or acquire equity securities of
the Company or its Subsidiaries), except for the issuance of the Shares
pursuant to this Agreement. In the event that, during this period, any
shares are issued pursuant to the Company's existing stock option or
stock purchase plans, the Company will obtain a Lock-Up Agreement from
such grantee or purchaser or holder of such registered securities.
(i) On or before completion of this offering, the Company
will make all filings required under applicable securities laws and by
the NMS.
(j) The Company will apply the net proceeds from the
offering of the Shares in the manner set forth under "Use of Proceeds"
in the Prospectus.
(k) The Company will pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is
-28-
terminated, all costs and expenses of the Company incidental to the
public offering of the Shares and the performance of the obligations
under this Agreement including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statement, each
preliminary prospectus, and the Prospectus and the printing, filing and
distribution of this Agreement, the agreement among underwriters, the
selected dealer agreement, the underwriters' questionnaire and any
instruments related to any of the foregoing; (ii) the preparation and
delivery of certificates for the Shares; (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 7(e)
hereof, 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 Representatives and to the
Underwriters of copies of each preliminary prospectus and the Prospectus
and of the several documents required by this Section 7 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 NASD in connection
with its review of the terms of the public offering and reasonable fees
and disbursements of counsel for the Underwriters in connection with
such review; (vi) the furnishing (including costs of shipping and
mailing) to the Representatives and to the Underwriters of copies of all
reports and information required by Section 7(e) hereof; (vii) the
inclusion of the Shares for quotation on the NMS; 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 8 hereof, the Underwriters will pay all costs and expenses
incident to the performance of the obligations of the Underwriters under
this Agreement not payable by the Company pursuant to the preceding
sentence, including, without limitation, the fees and disbursements of
counsel for the Underwriters.
8. Indemnification.
---------------
(a) The Company, jointly with the Selling Shareholders,
and Selling Shareholders, severally, will indemnify and hold harmless
each Underwriter 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, state or local law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon (i) with respect
to the Registration Statement, any untrue statement or alleged untrue
statement of a material fact, any omission or alleged omission of a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they are
made, not misleading, (ii) with respect to the Prospectus or any
preliminary prospectus, any untrue statement or alleged untrue statement
of material fact or any omission or alleged omission of material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (iii) any
breach of the representations and warranties set forth in Section 4
hereof; provided, however, that such indemnity will not inure to the
benefit of any Underwriter (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
-29-
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 in reliance upon and in
conformity with information furnished in writing to the Company by the
Representatives on behalf of any Underwriter specifically for use
therein. The indemnification agreements of the Company contained in
this paragraph and the representations and warranties of the Company
contained in Section 4 will remain operative and in full force and
effect regardless of any investigation made by or on behalf of any
indemnified party and will survive the delivery of any payment for the
Shares.
(b) Each Underwriter will 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, each officer of the Company
who signs the Registration Statement and each Selling Shareholder, in
each case 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 (i) with respect to the
information contained in the [____ paragraphs] of the cover page of the
Prospectus, the paragraph relating to stabilization and market making on
the [inside front cover page of Prospectus] and information contained
[in the ___, ___ and ___ paragraphs] under the caption "Underwriting" in
the Prospectus, any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission of material fact
required to be stated therein or necessary to make the statements
therein not misleading or (ii) with respect to such information as
contained in such sections of the Prospectus or any preliminary
prospectus, any untrue statement or alleged untrue statement of material
fact or any omission or alleged omission of material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The obligation of each
Underwriter pursuant to this Section 8(b) is several and not joint. The
indemnification agreements of each Underwriter contained in this Section
8(b) will remain operative and in full force and effect regardless of
any investigation made by or on behalf of any indemnified party and will
survive the delivery of any payment for the Shares. The obligation of
each Underwriter to indemnify the Company (including any controlling
person, director or officer thereof) as the case may be shall be limited
to the net proceeds received by the Company from such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section 8 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 8, 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 8(a) or 8(b)
hereof, will be available to any party who fails to give notice as
provided in this Section 8(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 will not relieve it from any liability that it may have to
any indemnified party for contribution or otherwise other than under
this Section 8(c). In case any such action, suit or proceeding is
brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it wishes, jointly
with any other indemnifying party similarly noticed, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice
-30-
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 will 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 will have the right to employ its
counsel in any such action, but the fees and expenses of such counsel
will be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party is authorized in writing
by the indemnifying parties, (ii) the indemnified party reasonably
concludes 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 will not
have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying parties do not employ
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 one counsel will for all similarly situated
indemnified parties be at the expense of the indemnifying parties.
(d) The Company will not, without the prior written
consent of each Underwriter, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit
or proceeding in respect of which indemnification may be sought
hereunder (whether or not such Underwriter or any person who controls
such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act is a party to such claim, action, suit
or proceeding) unless such settlement, compromise or consent includes an
unconditional release of such Underwriter and each such controlling
person from all liability arising out of such claim, action, suit or
proceeding.
(e) In addition to their other obligations under this
Section 8, the Company and the Selling Shareholders will reimburse the
Underwriters on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any
claim, action, investigation, inquiry or other proceeding arising out of
or based upon any statement or omission, or any alleged statement or
omission, described in Section 8(a) hereof, notwithstanding the absence
of a judicial determination as to the proprietary and enforceability of
the obligations under this Section 8(e) and the possibility that such
payments might later be held to be improper; provided, however, that (i)
to the extent any such payment is ultimately held to be improper, the
persons receiving such payments will promptly refund them and (ii) such
persons will provide to the Company, upon request, reasonable assurances
of their ability to effect any refund when and if due.
(f) The provisions of this Section 8 and of Section 9
hereof relating to the indemnification and contribution obligations of
the Company and the Selling Shareholders to the Underwriters and of the
Underwriters to the Company supersede the indemnification and
contribution provision contained in any registration rights or other
agreements or instruments between the Company and any of its
securityholders.
9. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnification provided for
in Section 8(a) or 8(b) is due in accordance with its terms but for any
reason is held to be unavailable from the Company, the Selling
Shareholders, or the Underwriters or insufficient to hold harmless an
indemnified party
-31-
under Section 8(a) or 8(b) hereof, the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other hand,
will 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 and the Selling Shareholders
from persons other than the Underwriters, such as persons who control
the Company within the meaning of the Securities 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
and the Selling Shareholders, on the one hand, and the Underwriters, on
the other hand, 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 8(c) 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, the Selling Shareholders, on the one
hand, and the Underwriters, on the other hand, in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, the
Selling Shareholders and the Underwriters will be deemed to be in the
same proportion as the total proceeds from the offering (net of
underwriting commissions but before deducting expenses) received by the
Company and the Selling Shareholders bear to the underwriting
commissions received by the Underwriters, each as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company,
the Selling Shareholders or the Underwriters will 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, the Selling Shareholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Shareholders and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 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 9, (i) in no case will
any Underwriter (except as may be provided in any Agreement Among
Underwriters) be liable or responsible for any amount in excess of the
underwriting commission applicable to the Shares purchased by such
Underwriter and no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act will have the same
rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of the Section 15 of the
Securities Act or Section 20 of the Exchange Act, each officer of the
Company who signed the Registration Statement and each director of the
Company will have the same rights to contribution as the Company,
subject in each case to the immediately preceding sentence. 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
-32-
be sought, but the omission to so notify such party or parties from whom
contribution may be sought will not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise (except as specifically provided in Section
8(c) hereof. The Underwriter's obligations to contribute pursuant to
this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during
the negotiations regarding the provisions hereof, including without
limitation the provisions of Sections 8 and 9 hereof, and are fully
informed regarding said provisions. They further acknowledge that the
provisions of Sections 8 and 9 hereof fairly allocate the risks in light
of the ability of the parties to investigate the Registration Statement
and the Prospectus as required by the Securities Act and the Exchange
Act. The parties are advised that federal or state public policy, as
interpreted by the courts in certain jurisdictions, may be contrary to
certain of the provisions of Sections 8 and 9 hereof, and the parties
hereto hereby expressly waive and relinquish any right or ability to
assert such public policy as a defense to a claim under Sections 8 or 9
hereof and further agree not to attempt to assert any such defense.
10. Termination. (a) This Agreement may be terminated with
-----------
respect to the Shares to be purchased on a Closing Date by the
Representatives, in its absolute discretion, by delivering written
notice to the Company, if any of the conditions specified in Section 5
hereof will not, in the Representatives' judgment, be fulfilled by such
Closing Date, or any of the following occurs after the date of this
Agreement: (i) if the Company shall have failed, refused or be unable
to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to
be fulfilled is not fulfilled, including, without limitation, any change
in the assets or properties, business, results of operations, prospects
or condition (financial or otherwise) of the Company and its
Subsidiaries from that set forth in the Registration Statement or
Prospectus, which, in the Representatives' judgment, is material and
adverse, or (ii) if additional material governmental restrictions, not
in force and effect on the date hereof, shall have been imposed upon
trading in securities generally or minimum or maximum prices shall have
been generally established on the New York Stock Exchange or on the
American Stock Exchange or in the over the counter marked by the NASD,
or trading in securities generally shall have been suspended on either
such exchange or in the over the counter marked by the NASD, or if a
banking moratorium shall have been declared by Federal or New York
authorities, (iii) the taking of any action by any Federal, state or
local government or agency in respect of its monetary or fiscal affairs,
or (iv) if the Company or any of its Subsidiaries shall have sustained a
loss by strike, fire, flood, wind, earthquake, accident or other
calamity of such character as to interfere materially with the conduct
of the business and operations of the Company regardless of whether or
not such loss shall have been insured, (v) if there shall have been a
material adverse change in the general political or economic conditions
or financial markets as in the Representatives' reasonable judgment
makes it inadvisable or impracticable to proceed with the offering, sale
and delivery of the Shares, or (vi) if there shall have been an outbreak
or escalation of hostilities or of any other instruction or armed
conflict or the declaration by the United States of a national emergency
which, in the reasonable opinion of the Representatives, makes it
impracticable or inadvisable to proceed with the public offering of the
Shares as contemplated by the Prospectus.
-33-
(b) If this Agreement is terminated pursuant to any of its
provisions, the Company will not be under any liability to any
Underwriter, and no Underwriter will be under any liability to the
Company, except that the Company will indemnify and hold harmless the
Underwriters for all reasonable out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) incurred by them in
connection with the proposed purchase and sale of the Shares or in
contemplation of performing their obligations hereunder.
11. Substitution of Underwriters. If one or more of the
----------------------------
Underwriters fails (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 10 hereof)
to purchase on any Closing Date the Shares agreed to be purchased on
such Closing Date by such Underwriter or Underwriters, the
Representatives may find one or more substitute underwriters to purchase
such Shares or make such other arrangements as the Representatives 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
Representatives, 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 will not exceed 10% of the
Shares that all the Underwriters are obligated to purchase on such
Closing Date, then each of the nondefaulting Underwriters will be
obligated to purchase such Shares on the terms herein set forth in
proportion to their respective obligations hereunder; provided, that in
no event will the maximum number of Shares that any Underwriter has
agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 11 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 will exceed 10% of the
Shares that all the Underwriters are obligated to purchase on such
Closing Date, then the Company will 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
Representatives to purchase such Shares upon the terms set forth in this
Agreement.
In any such case, either the Representatives or the Company will
have the right to postpone the applicable Closing Date for a period of
not more than five (5) business days in order that necessary changes and
arrangements (including any necessary amendments or supplements to the
Registration Statement or the Prospectus) may be effected by the
Representatives and the Company. If the number of shares to be
purchased on such Closing Date by such defaulting Underwriter or
Underwriters will exceed 10% of the Shares that all the Underwriters are
obligated to purchase on such Closing Date, and neither the
nondefaulting Underwriters nor the Company will make arrangements
pursuant to this Section 11 within the period stated for the purchase of
the Shares that the defaulting Underwriters agreed to purchase, this
Agreement will 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 8 and 9. The
provisions of this Section 11 will 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 will become an Underwriter for all purposes of this Agreement.
-34-
12. Miscellaneous. (a) The respective agreements,
-------------
representations, warranties, indemnities and other statements of the
Company and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors or controlling persons of the Company,
and will survive delivery of and payment for the Shares. The provisions
of Sections 8, 9 and 10 hereof shall survive the termination or
cancellation of this Agreement.
(b) This Agreement has been and is made for the benefit of
the Underwriters, the Company and the Selling Shareholders 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 the directors and officers of the Company, and their
respective successors and assigns, and no other person will acquire or
have any right under or by virtue of this Agreement. The term
"successors and assigns" will not include any purchaser of Shares from
any Underwriter merely because of such purchase.
(c) All notices and communications hereunder will be in
writing and mailed or delivered or by telephone or telegraph if
subsequently confirmed in writing, (a) if to the Representatives, c/o
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp, CIBC ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇,
with a copy to Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., (▇▇▇) ▇▇▇-▇▇▇▇, (b) if
to the Company, to its agent for service as such agent's address appears
on the cover page of the Registration Statement with a copy to
Armstrong, Teasdale, LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., (314) 342-
8007 and (c) if to the Selling Shareholders, to each of them c/o
Engineered Support Systems, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(d) THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
(e) This Agreement may be signed in any number of
counterparts, each of which will be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
-35-
DRAFT
Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
ENGINEERED SUPPORT SYSTEMS, INC.
By:_____________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. FIRST AMENDED
AND RESTATED REVOCABLE LIVING TRUST
By:_____________________________________
Name:
Title:
THE ▇▇▇▇▇▇▇▇ FAMILY VOTING TRUST
By:_____________________________________
Name:
Title:
________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Confirmed:
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL & RESEARCH INCORPORATED
Acting severally on behalf of
themselves and as representative
of the several Underwriters named
in Schedule I annexed hereto.
CIBC ▇▇▇▇▇▇▇▇▇▇▇ CORP.
By:____________________________________
Name:
Title:
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By:____________________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ INCORPORATED
By:____________________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL & RESEARCH INCORPORATED
By:____________________________________
Name:
Title:
SCHEDULE I
UNDERWRITERS
Number of Firm
Shares to be
Underwriter Purchased
------------- ----------------
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital & Research
Incorporated
-------------------
2,200,000
SCHEDULE II
PART I. FIRM SHARES SELLING SHAREHOLDER
NUMBER OF FIRM
SHARES SELLING
SELLING SHAREHOLDER SHAREHOLDER SECURITIES
------------------- ----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. [ ]
First Amended and Restated
Revocable Living Trust
The ▇▇▇▇▇▇▇▇ Family Voting [ ]
Trust
PART II. OPTION SHARES SELLING SHAREHOLDERS
NUMBER OF OPTION
SHARES SELLING
SELLING SHAREHOLDERS SHAREHOLDERS SECURITIES
-------------------- -----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. [ ]
First Amended and Restated
Revocable Living Trust
The ▇▇▇▇▇▇▇▇ Family Voting [ ]
Trust
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 15,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 15,000