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DB DRAFT OF 4/27/97
1,640,000 SHARES
DBT ONLINE, INC.
COMMON STOCK ($.10 PAR VALUE)
UNDERWRITING AGREEMENT
May ____, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION,
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. DBT Online, Inc., a Pennsylvania corporation
("Company"), proposes to issue and sell 1,000,000 shares of its common stock,
$.10 par value ("Securities"), and the shareholders listed in Schedule A hereto
("Selling Shareholders") propose severally to sell an aggregate of 640,000
outstanding shares of the Securities (such 1,640,000 Securities being
hereinafter referred to as the "Firm Securities"). Certain of the Selling
Shareholders also propose to sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 246,000 additional outstanding
shares of the Company's Securities, in the respective amounts set forth on
Schedule A (such 246,000 additional shares being hereinafter referred to as the
"Optional Securities"). The Firm Securities and the Optional Securities are
herein collectively referred to as the "Offered Securities". The Company and the
Selling Shareholders hereby agree with the several Underwriters named in
Schedule B ("Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Shareholders.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
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(i) A registration statement (No. 333-24613) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("Commission") and either (A)
has been declared effective under the Securities Act of 1933, as
amended ("Act"), and is not proposed to be amended or (B) is proposed
to be amended by amendment or post-effective amendment. If such
registration statement (the "initial registration statement") has been
declared effective, either (A) an additional registration statement
(the "additional registration statement") relating to the Offered
Securities may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("Rule 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has advised
the Representative that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representative that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representative that it proposes to file one,
"Effective Time" with respect to such additional registration statement
means the date and time as of
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which such registration statement is filed and becomes effective
pursuant to Rule 462(b). "Effective Date" with respect to the initial
registration statement or the additional registration statement (if
any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
material incorporated by reference therein, including all information
contained in the additional registration statement (if any) and deemed
to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("Rule
430A(b)") under the Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "Prospectus". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act. No stop
order suspending the effectiveness of such Registration Statement or
any part thereof has been issued and no proceeding for that purpose has
been instituted or, to the best knowledge of the Company, threatened by
the Commission.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B)
on the Effective Date of the Additional Registration Statement (if
any), each Registration Statement conformed or will conform, in all
respects to the requirements of the Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at
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the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, and on each
Closing Date (as hereinafter defined) each Registration Statement and
the Prospectus will conform, in all respects to the requirements of the
Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules
and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading, and no Additional
Registration Statement has been or will be filed and (B) on each
Closing Date, the Initial Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and the
Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(c).
(iii) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the
Commonwealth of Pennsylvania, with power and authority (corporate and
other) to own, lease and operate its properties and conduct its
business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership, leasing or operation of
property or the conduct of its business requires such qualification.
(iv) The Company's only subsidiaries are listed on Exhibit 1
hereto. Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and authority
(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Prospectus; and each
subsidiary of the Company is duly qualified to do business
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as a foreign corporation in good standing in all other jurisdictions in
which its ownership, leasing or operation of property or the conduct of
its business requires such qualification; all of the issued and
outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable;
and the capital stock of each subsidiary is owned by the Company,
directly or through the Company's subsidiaries, free and clear of any
mortgage, pledge, lien, security interest, claim, encumbrance or defect
of any kind.
(v) The Firm Securities to be sold by the Company have been
duly authorized and will be, when issued and paid for in accordance
with this Agreement, validly issued, fully paid and nonassessable and
no further approval or authority of the shareholders or the Board of
Directors of the Company is or will be required for the issuance and
sale of the Offered Securities as contemplated by this Agreement; the
Offered Securities to be sold by the Selling Shareholders and all other
outstanding shares of capital stock of the Company have been duly
authorized, are validly issued, fully paid and nonassessable and have
been issued in compliance with applicable federal and state securities
laws; the authorized and outstanding capital stock of the Company
conforms to the descriptions thereof contained in the Prospectus under
the captions "Capitalization" and "Description of Capital Stock"; and
the shareholders of the Company have no preemptive or similar rights
with respect to the Offered Securities or any other securities of the
Company.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
third party that would give rise to a valid claim against the Company
or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with the transactions contemplated by this
Agreement.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
third party (whether acting in an individual, fiduciary or other
capacity) granting such third party the right to require the Company to
file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such third party or
to require the Company to include such securities in the Offered
Securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(viii) On the date each Registration Statement was first filed
with the Commission, and at the Effective Time, the Company met the
conditions for use of Form S-3 under the Act and the Rules and
Regulations.
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(ix) The Securities are listed on the Nasdaq Stock Market's
National Market.
(x) Except as disclosed in the Prospectus, no consent,
approval, authorization, order, registration or qualification of, or
filing with, any third party (whether acting in an individual,
fiduciary or other capacity) or any governmental, regulatory or
accrediting agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities, except
such as have been obtained and made under the Act and such as may be
required under state securities laws.
(xi) The execution, delivery and performance of this
Agreement, and the consummation of the transactions herein contemplated
have been duly authorized by all necessary corporate action on the part
of the Company and, to the extent required, its shareholders and do not
and will not conflict with or result in a breach or violation of any of
the terms and provisions of, and do not and will not constitute a
default (or an event which with the giving of notice or the lapse of
time or both could reasonably be likely to constitute a default) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any assets or properties of the Company or any of its
subsidiaries (including any individual institution within such entity)
under (A) the charter, by-laws or other organizational documents of the
Company or any subsidiary, (B) any statute, any rule, regulation,
requirement, order or decree of any governmental, regulatory or
accrediting agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
properties, assets or operations, or (C) any indenture, mortgage, loan
or credit agreement, note, lease, permit, license or other agreement or
instrument to which the Company or any subsidiary is a party or by
which the Company or any subsidiary is bound or to which any of the
properties, assets or operations of the Company or any subsidiary is
subject.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiii) The Company and its subsidiaries have good and
marketable title to all real properties and all other properties and
assets owned by them, in each case free and clear of any mortgage,
pledge, lien, security interest, claim or other encumbrance or defect
that could individually or in the aggregate materially affect the value
thereof, materially interfere with the use made or to be made thereof
by them, or have a material adverse effect on the condition (financial
or other), business, prospects, results of operations or general
affairs of the Company and its subsidiaries taken as a whole; and the
Company and its subsidiaries hold any leased real or personal property
under valid, subsisting and enforceable leases or subleases with no
exceptions that would materially
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interfere with the use made or to be made thereof by them; neither the
Company nor any subsidiaries is in default under any such lease or
sublease; and no material claim of any sort has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any such
lease or sublease or affecting or questioning the right of such entity
to the continued possession of the leased or subleased properties under
any such lease or sublease.
(xiv) The Company and its subsidiaries possess all approvals,
authorizations, certificates, permits and licenses (collectively,
"Licenses") issued by appropriate governmental, regulatory or
accrediting agencies or bodies as are necessary to own, lease or
operate their properties and conduct the business now operated by them
as described in the Prospectus, and all such Licenses are in full force
and effect. The Company and its subsidiaries are in substantial
compliance with their respective obligations under such Licenses and
neither the Company nor any of its subsidiaries has received notice of
any proceedings, investigations or inquiries (or is aware of any facts
that would form a reasonable basis for any proceedings, investigations
or inquiries) relating to the revocation, modification, termination or
suspension of any such License or impairment of the rights of the
Company or such subsidiaries thereunder that, if determined adversely
to the Company or any of its subsidiaries, could individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business, prospects, results of operations or general affairs
of the Company and its subsidiaries taken as a whole.
(xv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the best knowledge of the Company, is imminent
that could individually or in the aggregate have a material adverse
effect on the condition (financial or other), business, prospects,
results of operations or general affairs of the Company and its
subsidiaries taken as a whole.
(xvi) The Company and its subsidiaries are the exclusive
owners of or have obtained valid licenses at commercially reasonable
rates for all trademarks, trademark registrations, service marks,
service ▇▇▇▇ registrations, trade names, copyrights, copyright
registrations, patents, inventions, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, computer software, systems or procedures), confidential
information and any other intellectual property or rights described in
the Prospectus as being owned, licensed or used by the Company or any
of its subsidiaries or that are necessary for the conduct of their
businesses as described in the Prospectus (collectively, "Intellectual
Property") and the Company is not aware of any claim (or of any facts
that would form a reasonable basis for any claim) to the contrary or
any challenge by any third party to the rights of the Company or any of
its subsidiaries with respect to any such Intellectual Property or to
the validity or scope of any such Intellectual Property and neither the
Company nor any of its subsidiaries has any claim
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against a third party with respect to the infringement by such third
party to any such Intellectual Property that, if determined adversely
to the Company or any of its subsidiaries, could individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business, prospects, results of operations or general affairs
of the Company and its subsidiaries taken as a whole. The Company and
its subsidiaries have a good faith belief in the distinctiveness and
enforceability of all trademarks, service marks and trade names and in
the validity and enforceability of all patents included in the
Intellectual Property. The Intellectual Property includes all
intellectual property and similar rights necessary or advisable for the
conduct of the business of the Company as now conducted as described in
the Prospectus or as planned to be conducted. The Company has taken,
and will take, all actions which are necessary or advisable in order to
protect the Intellectual Property, and to acquire Intellectual
Property, consistent with prudent commercial practices in the database
services industry.
(xvii) The properties, assets and operations of the Company
and its subsidiaries are in compliance with all applicable federal,
state, local and foreign environmental laws, rules and regulations,
orders, decrees, judgments, permits and licenses relating to public and
worker health and safety, and to the protection and clean-up of the
natural environment and to the protection or preservation of natural
resources and of plant and animal species, and activities or conditions
related thereto, including, without limitation, those relating to the
production, extraction, processing, manufacturing, generation,
handling, disposal, transportation or release of hazardous materials
(collectively, "Environmental Laws"). With respect to such properties,
assets and operations (including any previously owned, leased or
operated properties, assets or operations with respect to such prior
period of ownership or operation), there are no past, present or, to
the best knowledge of the Company, reasonably anticipated future
events, conditions, circumstances, activities, practices, incidents,
actions or plans of the Company or any of its subsidiaries that may
interfere with or prevent compliance or continued compliance by the
Company and its subsidiaries with applicable Environmental Laws.
Neither the Company nor any of its subsidiaries is the subject of any
federal, state, local or foreign investigation, and neither the Company
nor any of its subsidiaries has received any notice or claim (or is
aware of any facts that would be expected to result in any such claim),
nor entered into any negotiations or agreements with any third party,
relating to any liability or potential liability or remedial action or
potential remedial action under Environmental Laws, nor are there any
pending, reasonably anticipated or, to the best knowledge of the
Company, threatened actions, suits or proceedings against or affecting
the Company, any of its subsidiaries or their properties, assets or
operations in connection with any such Environmental Laws. The term
"hazardous materials" shall mean those substances that are regulated by
or form the basis for liability under any applicable Environmental
Laws.
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(xviii) Except as disclosed in the Prospectus, there are no
pending actions, suits, proceedings or investigations against or
affecting the Company or any of its subsidiaries or any of their
respective properties, assets or operations that, if determined
adversely to the Company or any of its subsidiaries, could individually
or in the aggregate have a material adverse effect on the condition
(financial or other), business, prospects, results of operations or
general affairs of the Company and its subsidiaries taken as a whole,
or could materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits, proceedings or investigations are threatened or,
to the best knowledge of the Company, contemplated.
(xix) The financial statements and related schedules and notes
included in each Registration Statement and the Prospectus comply with
the requirements of the Act and the Rules and Regulations, present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and
cash flows for the periods shown, and such financial statements have
been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis. The
other financial information and statistical data set forth in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included in the Registration Statements. The pro
forma financial statements and other pro forma financial information
included in the Prospectus present fairly the information shown
therein, have been prepared in all respects in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma basis
described therein and, in the opinion of the Company, the assumptions
used provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xx) Since the dates as of which information is given in each
Registration Statement and the Prospectus, (A) neither the Company nor
any of its subsidiaries has incurred any material liability or
obligation (indirect, direct or contingent) or entered into any
material, verbal or written agreement or other transaction that is not
in the ordinary course of business or that could result in a material
reduction in the future earnings of the Company; (B) there has been no
change, except as contemplated by the Prospectus, in the indebtedness
of the Company, no change in the capital stock of the Company and no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock; and (C) there has been no
material adverse change, nor any development or event involving a
prospective material
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adverse change, in the condition (financial or other), business,
prospects or results of operations or general affairs of the Company
and its subsidiaries taken as a whole.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be, an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(xxii) Except as set forth in the Prospectus, there are no
outstanding (A) securities or obligations of the Company convertible
into or exchangeable for any capital stock of the Company, (B)
warrants, rights or options to subscribe for or purchase from the
Company any such capital stock or any such convertible or exchangeable
securities or obligations or (C) obligations of the Company to issue
such shares, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or obligations.
(xxiii) Each "employee benefit plan" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
in which employees of the Company or any subsidiary participate or as
to which the Company or any subsidiary has any liability (the "ERISA
Plans") is in compliance with the applicable provisions of ERISA and
the Internal Revenue Code of 1986, as amended (the "Code"). Neither the
Company nor any subsidiary has any liability, with respect to the ERISA
Plans or otherwise and whether or not contingent, under Title IV of
ERISA, nor does the Company expect that any such liability will be
incurred. Neither the Company nor any subsidiary has any liability,
whether or not contingent, with respect to any ERISA Plan that provides
post-retirement welfare benefits. The descriptions of the Company's
stock option, stock bonus and other stock plans or arrangements, and of
the options or other rights granted and exercised thereunder, set forth
in the Prospectus are accurate and complete.
(xxiv) The Company and its subsidiaries have filed on a timely
basis all federal, state, local and foreign tax returns required to be
filed, such returns are complete and correct, and all taxes shown by
such returns or otherwise assessed that are due and payable have been
paid, except such taxes as are being contested in good faith and as to
which adequate reserves have been provided. The charges, accruals and
reserves on the books of the Company and its subsidiaries in respect of
any tax liability for any year not finally determined are adequate to
meet any assessments or reassessments for additional taxes; and there
has been no tax deficiency asserted and the Company is not aware of any
facts that would form a reasonable basis for the assertion of any tax
deficiency against the Company or any of its subsidiaries that could
individually or in the aggregate have a material adverse effect on the
condition (financial or other),
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business, prospects, results of operations or general affairs of the
Company and its subsidiaries taken as a whole.
(xxv) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient for purposes of the prevention
or detection of errors or irregularities in amounts that could be
expected to be material to the Company's consolidated financial
statements and the recording of transactions so as to permit the
preparation of such consolidated financial statements in conformity
with generally accepted accounting principles.
(xxvi) Neither the Company nor any of its subsidiaries is in
violation of (A) its charter, by-laws or other organizational documents
or (B) any applicable law, ordinance, administrative or governmental or
regulatory rule, regulation or any order, decree or judgment of any
court or governmental, regulatory or accrediting agency or body having
jurisdiction over the Company or any subsidiary; and no event of
default or event that, but for the giving of notice or the lapse of
time or both, would constitute an event of default exists, or upon
consummation of the transactions contemplated by this Agreement or the
Prospectus, including, without limitation, the use of proceeds from the
sale of the Offered Securities in the manner contemplated by the
description under the caption "Use of Proceeds" contained in the
Prospectus will exist, under any indenture, mortgage, loan or credit
agreement, note, lease, permit, license or other agreement or
instrument to which the Company or any subsidiary is a party or by
which the Company or any subsidiary is bound or to which any of the
properties, assets or operations of the Company or any subsidiary is
subject. There are no statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statements or the Prospectus or to be filed as exhibits to the
Registration Statements that are not described or filed as required.
(xxvii) The Company and its subsidiaries carry or are entitled
to the benefits of insurance in such amounts and covering such risks as
is generally maintained by companies of established repute engaged in
the same or similar business, and all such insurance is in full force
and effect.
(xxviii) The Company has not taken and will not take, directly
or indirectly, any action designed to or that could cause or result in
stabilization or manipulation of the price of the Offered Securities to
facilitate the sale or resale of the Offered Securities.
(xxix) The Company has obtained the written agreement of each
officer, director and shareholder of the Company listed on Exhibit 2
hereto, in form reasonably satisfactory to the Underwriters, that such
person will not, for a period of [two] years after the date of the
public offering of the Offered Securities, offer, sell, contract to
sell, pledge or otherwise dispose of, directly or
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indirectly or request or demand the filing with the Commission of a
registration statement under the Act relating to any shares of the
Securities of the Company or securities or other rights convertible
into or exchangeable or exercisable for any shares of Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC.
(b) Each Selling Shareholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Shareholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Shareholder on such
Closing Date and full right, power and authority to enter into this
Agreement and the Custody Agreement (the "Custody Agreement") and
Irrevocable Power of Attorney (the "Power of Attorney") entered into by
such Selling Shareholder in connection with the transactions
contemplated hereby and to sell, assign, transfer and deliver the
Offered Securities to be delivered by such Selling Shareholder on such
Closing Date hereunder; and upon the delivery of and payment for the
Offered Securities on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by such Selling Shareholder on such Closing
Date.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the
requirements of the Act and the Rules and Regulations and did not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the
Act and the Rules and Regulations did not include, or will not include,
any untrue statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectus is included, and on each Closing Date, each Registration
Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be
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stated therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this Agreement: (A) on
the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects
to the requirements of the Act and the Rules and Regulations, neither
of such documents will include any untrue statement of a material fact
or will omit to state any material fact required to be stated therein
or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading and (B) on each Closing Date, the Initial Registration
Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading. The two preceding sentences
do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to
the Company by any Underwriter through the Representative specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(c).
(iii) This Agreement, the Custody Agreement and Power of
Attorney have each been duly authorized, executed and delivered by or
on behalf of such Selling Shareholder and the Custody Agreement and
Power of Attorney constitute the legal, valid and binding obligations
of such Selling Shareholder enforceable against such Selling
Shareholder in accordance with their respective terms.
(iv) No consent, approval, authorization, order, registration
or qualification of, or filing with, any third party (whether acting in
an individual, fiduciary or other capacity) or any governmental or
regulatory agency or body or court is required to be obtained or made
by such Selling Shareholder for the consummation of the transactions
contemplated by this Agreement, the Custody Agreement and Power of
Attorney in connection with the sale of the Offered Securities, except
such as have been obtained and made under the Act and such as may be
required under state securities laws.
(v) The execution, delivery and performance by such Selling
Shareholder of this Agreement, the Custody Agreement and Power of
Attorney, the sale of the Offered Securities being sold by such Selling
Shareholder do not and will not conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute or will
constitute a default (or an event which with the giving of notice or
the lapse of time or both could reasonably be likely to constitute a
default) under, or result in the creation or imposition of any lien,
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charge or encumbrance upon the Offered Securities to be sold by such
Selling Shareholder under (A) any statute, any rule, regulation,
requirement, order or decree of any governmental or regulatory agency
or body, or any court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of his or her properties, assets or
operations or (B) any indenture, mortgage, loan or credit agreement,
note, lease, permit, license or other agreement or instrument to which
such Selling Shareholder is a party or by which such Selling
Shareholder is bound or to which any of the properties, assets or
operations of such Selling Shareholder is subject, and such Selling
Shareholder has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Shareholder and any third party that would give rise to a valid claim
against such Selling Shareholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with the
transactions contemplated by this Agreement, the Custody Agreement and
Power of Attorney.
(vii) Such Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to or that could
cause or result in stabilization or manipulation of the price of the
Offered Securities to facilitate the sale or resale of the Offered
Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Shareholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Shareholder, at a purchase price of $[ ] per share,
that number of Firm Securities (rounded up or down, as determined by Credit
Suisse First Boston Corporation ("CSFBC") in its discretion, in order to avoid
fractions) obtained by multiplying 1,000,000 Firm Securities in the case of the
Company and the number of Firm Securities set forth opposite the name of such
Selling Shareholder in Schedule A hereto, in the case of a Selling Shareholder,
in each case by a fraction the numerator of which is the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule B hereto
and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Shareholders hereunder have been placed in custody, for delivery
under this Agreement, under the Custody Agreements made with [ ], as
custodian ("Custodian"). Each Selling Shareholder agrees that the shares
represented by the certificates held in custody for the Selling Shareholders
under such Custody Agreements are subject to the interests of the Underwriters
hereunder, that the arrangements made by the Selling Shareholders for such
custody are to that extent irrevocable, and that the
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obligations of the Selling Shareholders hereunder shall not be terminated by
operation of law, whether by the death of any individual Selling Shareholder or
the occurrence of any other event, or in the case of a trust, by the death of
any trustee or trustees or the termination of such trust. If any individual
Selling Shareholder or any such trustee or trustees should die, or if any other
such event should occur, or if any of such trusts should terminate, before the
delivery of the Offered Securities hereunder, certificates for such Offered
Securities shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such death or other event or termination had
not occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representative for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to a bank acceptable to CSFBC drawn to the order of the Company in
the case of 1,000,000 shares of Firm Securities and the Custodian in the case of
640,000 shares of Firm Securities, at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., New York time,
on May ____, 1997, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, such time being herein referred
to as the "First Closing Date". The certificates for the Firm Securities so to
be delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests and will be made available for checking and
packaging at the office of Credit Suisse First Boston Corporation, Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at least 24 hours prior to the
First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Shareholders from time to time not more than 30 days subsequent to
the date of the Prospectus, the Underwriters may purchase all or less than all
of the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Shareholders agree, severally and not jointly, to
sell to the Underwriters the respective numbers of Optional Securities obtained
by multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Shareholders in Schedule A hereto under the caption
"Number of Optional Securities to be Sold" and the denominator of which is the
total number of Optional Securities (subject to adjustment by CSFBC to eliminate
fractions). Such Optional Securities shall be purchased from each Selling
Shareholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not
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previously exercised may be surrendered and terminated at any time upon notice
by CSFBC to the Company and the Selling Shareholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representative for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal Reserve (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to CSFBC
drawn to the order of the Custodian in the case of the 246,000 Optional
Securities, at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The certificates for the Optional Securities being
purchased on each Optional Closing Date will be in definitive form, in such
denominations and registered in such names as CSFBC requests upon reasonable
notice prior to such Optional Closing Date and will be made available for
checking and packaging at the office of CSFBC, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, at a reasonable time in advance of such Optional Closing
Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Shareholders. The
Company agrees with the several Underwriters and the Selling Shareholders and,
with respect to clauses (k) and (l) below, the Selling Shareholders agree with
the Company and the several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph(4)) of Rule 424(b) not later than the earlier of
(A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement. The Company will advise
CSFBC promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to
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10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's prior consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if the
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs or a condition
exists as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company will promptly notify
CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance. Neither CSFBC's consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
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(e) The Company will furnish to the Representative copies of
each Registration Statement (two of which will be signed and will
include all exhibits and a signed accountant's report of Deloitte &
Touche LLP, each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished
as soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will, in cooperation with CSFBC and counsel
for the Underwriters, arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of five years hereafter, the Company
will furnish to the Representative and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to shareholders for such year; and
the Company will furnish to the Representative (i) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act
of 1934, as amended, or mailed to shareholders and (ii) from time to
time, such other information concerning the Company as CSFBC may
reasonably request.
(h) For a period of [two] years after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file or cause to be filed with the Commission a
registration statement under the Act relating to, any shares of its
Securities or securities or other rights convertible into or
exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposal or filing, without the prior written consent of CSFBC.
(i) The Company will apply the net proceeds of the Offering
and sale of the Offered Securities contemplated hereunder in the manner
set forth in the Prospectus under the caption "Use of Proceeds".
(j) The Company agrees with each Selling Shareholder and the
Underwriters that the Company will pay all expenses incident to the
performance of the obligations of the Company and each Selling
Shareholder
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under this Agreement for any filing fees and other expenses (including
fees and disbursements of counsel) incurred by them in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda
relating thereto, for the filing fee incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers,
Inc. of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities, for any transfer taxes on the
sale by the Selling Shareholders of the Offered Securities to the
Underwriters and for expenses incurred in printing and distributing
preliminary prospectuses and the Prospectus (including any amendments
and supplements thereto) or related documents.
(k) Each Selling Shareholder agrees to deliver to CSFBC
(Attention: Transactions Advisory Group) on or prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(l) Each Selling Shareholder agrees, for a period of [two]
years after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or request or demand the filing
with the Commission of a registration statement under the Act relating
to any shares of the Securities of the Company or securities or other
rights convertible into or exchangeable or exercisable for any shares
of Securities, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, without the prior written
consent of CSFBC.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Shareholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Shareholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representative shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective
19
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amendment to the registration statement to be filed shortly prior to
such Effective Time), of Deloitte & Touche LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, a reading of the minutes
of all meetings of the shareholders and directors (including
each committee thereof) of the Company and its subsidiaries,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements
included in the Registration Statements and the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements for them
to be in conformity with generally accepted
accounting principles;
(B) the information set forth in the
Prospectus under the captions "Summary Consolidated
Financial and Other Data" and "Selected Consolidated
Financial and Other Data" does not agree with the
amounts set forth in the unaudited consolidated
financial statements or the audited consolidated
financial statements, as the case may be, from which
it was derived or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the unaudited statements or
the audited statements included in the Registration
Statements and the Prospectus;
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(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three days
prior to the date of this Agreement, there was any
decrease in stockholders' equity or change in the
capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in
the Registration Statements and the Prospectus; or
(D) for the period from the closing date of
the latest income statement included in the
Registration Statements and the Prospectus to the
closing date of the latest available income statement
read by such accountants there were any decreases, as
compared with the corresponding period of the
previous year and with the period of corresponding
length ended the date of the latest income statement
included in the Registration Statements and the
Prospectus, in consolidated net revenues or
consolidated net income, or in the total or per share
amounts of consolidated net income or income from
operations, or any increases or decreases, as the
case may be, in other items specified by the
Representative;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred;
(iv) they have proved the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the unaudited pro forma statement of operations
included in the Registration Statements and the Prospectus and
on the basis of the foregoing procedure and a reading of the
unaudited pro forma financial statements included in the
Registration Statements and the Prospectus, a reading of the
minutes of all meetings of the stockholders and directors
(including each committee thereof) of the Company and its
subsidiaries, inquiries of officials of the Company who have
responsibility for financial and accounting matters about (i)
the basis for the determination of the pro forma adjustments
and (ii) whether the unaudited pro forma consolidated
statement of operations complies as to form in all material
respects with the applicable accounting requirements of Rule
11-02 of Regulation S-X under the Act and other specified
procedures, nothing came to their attention that caused them
to believe that the pro forma financial statements included in
the Registration Statements and the Prospectus do not comply
in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X under the Act or
that the
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pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such financial
statements or on the pro forma basis described in the notes
thereto;
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
and the Prospectus (in each case to the extent that such
dollar amounts, percentages, numerical data and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages,
numerical data and other financial information to be in
agreement with such results.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time; (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time; and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration
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Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of any Selling
Shareholder, the Company or the Representative, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, prospects, results of operations or
general affairs of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including the Representative, the
effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representative shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is a
validly existing corporation in good standing under the laws
of the Commonwealth of Pennsylvania, with power and authority
(corporate and other) to own, lease and operate its properties
and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualifications.
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(ii) The Offered Securities delivered on such Closing
Date by the Company have been duly authorized and will be,
when issued and paid for in accordance with this Agreement,
validly issued, fully paid and nonassessable and the Offered
Securities delivered on such Closing Date by the Selling
Shareholders have been duly authorized, validly issued, fully
paid and nonassessable; no further approval or authority of
the shareholders or the Board of Directors of the Company is
or will be required for the issuance and sale of the Offered
Securities as contemplated by this Agreement; to the best
knowledge of such counsel, the shareholders of the Company
have no preemptive or similar rights with respect to the
Offered Securities; and all outstanding shares of the capital
stock of the Company have been duly authorized, are validly
issued, are fully paid and non-assessable and have been issued
in compliance with applicable federal and state securities
laws; the authorized and outstanding shares of capital stock
of the Company are as set forth in the Prospectus under the
captions "Capitalization" and "Description of Capital Stock"
and conform to the descriptions thereof contained in the
Prospectus.
(iii) All of the issued and outstanding capital stock
of each of the Company's subsidiaries has been duly authorized
and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries.
(iv) To the knowledge of such counsel, except as
disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any third
party (whether acting in an individual, fiduciary or other
capacity) granting such third party the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such third party or to require the Company to include such
securities in the Offered Securities registered pursuant to
the Registration Statement or in any securities being
registered pursuant to any other registration statement filed
by the Company under the Act.
(v) To the knowledge of such counsel, except as
disclosed in the Prospectus, no consent, approval,
authorization, order, registration or qualification of, or
filing with, any third party (whether acting in an individual,
fiduciary or other capacity) or any governmental, regulatory
or accrediting agency or body or any court is required for the
consummation of the transactions contemplated by this
Agreement in connection with the issuance and sale of the
Offered Securities, except such as have been obtained and made
under the Act and such as may be required under state
securities laws.
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(vi) This Agreement has been duly authorized,
executed and delivered by or on behalf of the Company.
(vii) The execution, delivery and performance of this
Agreement or the Custody Agreement and the consummation of the
transactions herein and therein contemplated have been duly
authorized by all necessary corporate action on the part of
the Company and, to the extent required, its shareholders and
do not and will not conflict with or result in a breach or
violation of any of the terms and provisions of, and do not
and will not constitute a default (or an event which with the
giving of notice or the lapse of time or both could reasonably
be likely to constitute a default) under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any assets or properties of the Company or any of its
subsidiaries (including any individual institution within such
entity) under, and neither the Company nor any of its
subsidiaries is in violation of (A) the charter, by-laws or
other organizational documents of the Company or any
subsidiary, (B) to the best knowledge of such counsel, any
statute, any rule, regulation, requirement, order or decree of
any governmental, regulatory or agency or body or any court
having jurisdiction over the Company or any subsidiary or any
of their properties, assets or operations or (C) to the best
knowledge of such counsel, any indenture, mortgage, loan or
credit agreement, note, lease, permit, license or other
agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the properties, assets
or operations of the Company or any subsidiary is subject.
(viii) Except as set forth in the Prospectus, there
are no outstanding (A) securities or obligations of the
Company convertible into or exchangeable for any capital stock
of the Company, (B) warrants, rights or options to subscribe
for or purchase from the Company any such capital stock or any
such convertible or exchangeable securities or obligations or
(C) obligations of the Company to issue such shares, any such
convertible or exchangeable securities or obligations, or any
such warrants, rights or obligations.
(ix) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940, as amended.
(x) Such counsel has participated in the preparation
of the Registration Statements and the Prospectus and has no
reason to believe
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that any part of the Registration Statement or any amendment
thereto, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or
any amendment or supplement thereto, as of its issue date or
as of such Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such
counsel need express no opinion as to the financial statements
and schedules or other financial data contained in the
Registration Statements and the Prospectus). There are no
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statements or the
Prospectus or to be filed as exhibits to the Registration
Statements that are not described or filed as required.
(xi) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and
no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations.
Such opinion shall be to such further effect with respect to
other legal matters relating to this Agreement and the transactions
contemplated hereby as the Representative and counsel to the
Underwriters may reasonably request. In rendering such opinion, such
counsel may rely as to matters governed by the laws of jurisdictions
other than the laws of jurisdictions in which such counsel are admitted
to practice and the federal laws of the United States upon the opinions
of counsel reasonably satisfactory to the Representative and counsel to
the Underwriters.
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(e) The Representative shall have received an opinion, dated
such Closing Date, of J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Vice President, Secretary
and General Counsel of the Company, to the effect that:
(i) Each of the Company's subsidiaries has been duly
incorporated and is a validly existing corporation in good
standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate or other)
to own, lease and operate its properties and to conduct is
business as described in the Prospectus; and each of the
Company's subsidiaries is duly qualified to do business as a
foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualifications.
(ii) All of the issued and outstanding capital stock
of each of the Company's subsidiaries is owned by the Company,
directly or through subsidiaries, free and clear of any
mortgage, pledge, lien, security interest, claim, encumbrance
or defect of any kind; and there are no rights granted to or
in favor of any third party (whether acting in an individual,
fiduciary or other capacity) other than the Company to acquire
any such capital stock, any additional capital stock or any
other securities of any subsidiary.
(iii) The Company and its subsidiaries possess all
Licenses issued by appropriate governmental or regulatory
agencies or bodies as are necessary to own, lease or operate
their properties and conduct the business now operated by
them, and all such Licenses are in full force and effect. The
Company and its subsidiaries are in substantial compliance
with their respective obligations under such Licenses, subject
to such qualifications as are described in the Prospectus, and
neither the Company nor any of its subsidiaries has received
notice of any proceedings, investigations or inquiries (or is
aware of any facts that would form a reasonable basis for any
proceedings, investigations or inquiries) relating to the
revocation, modification, termination or suspension of any
such License or impairment of the rights of the Company or
such subsidiaries thereunder that, if determined adversely to
the Company or any of its subsidiaries, could individually or
in the aggregate have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(iv) The execution, delivery and performance of this
Agreement or the Custody Agreement and the consummation of the
transactions herein and therein contemplated have been duly
authorized by all necessary corporate action on the part of
the Company and, to the extent required, its shareholders and
do not and will not conflict with
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or result in a breach or violation of any of the terms and
provisions of, and do not and will not constitute a default
(or an event which with the giving of notice or the lapse of
time or both could reasonably be likely to constitute a
default) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any assets or properties of
the Company or any of its subsidiaries (including any
individual institution within such entity) under, and neither
the Company nor any of its subsidiaries is in violation of (A)
the charter, by-laws or other organizational documents of the
Company or any subsidiary, (B) to the best knowledge of such
counsel, any statute, any rule, regulation, requirement, order
or decree of any governmental, regulatory or agency or body or
any court having jurisdiction over the Company or any
subsidiary or any of their properties, assets or operations or
(C) to the best knowledge of such counsel, any indenture,
mortgage, loan or credit agreement, note, lease, permit,
license or other agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or
any subsidiary is bound or to which any of the properties,
assets or operations of the Company or any subsidiary is
subject.
(v) Except as disclosed in the Prospectus, there are
no pending or, to the best knowledge of such counsel,
threatened actions, suits, proceedings or investigations
against or affecting the Company or any of its subsidiaries or
any of their respective properties, assets or operations that
could materially and adversely affect the ability of the
Company to perform its obligations under this Agreement or
which are otherwise material in the context of the sale of the
Offered Securities.
Such opinion shall be to such further effect with respect to
other legal matters relating to this Agreement and the transactions
contemplated hereby as the Representative and counsel to the
Underwriters may reasonably request. In rendering such opinion, such
counsel may rely as to matters governed by the laws of jurisdictions
other than the laws of jurisdictions in which such counsel are admitted
to practice and the federal laws of the United States upon the opinions
of counsel reasonably satisfactory to the Representative and counsel to
the Underwriters.
(f) The Representative shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Selling Shareholders, to the effect that:
(i) To the best knowledge of such counsel, each
Selling Shareholder has valid and unencumbered title to the
Offered Securities delivered by such Selling Shareholder on
such Closing Date and has full right, power and authority to
enter into this Agreement and the
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Custody Agreement and Power of Attorney and to sell, assign,
transfer and deliver the Offered Securities delivered by such
Selling Shareholder on such Closing Date; and, to the best
knowledge of such counsel, upon the delivery of and payment
for the Offered Securities on such Closing Date the several
Underwriters will have acquired valid and unencumbered title
to the Offered Securities delivered by such Selling
Shareholder on such Closing Date;
(ii) This Agreement, the Custody Agreement and Power
of Attorney have each been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder and the
Custody Agreement and Power of Attorney constitute the legal,
valid and binding obligations of such Selling Shareholder
enforceable against such Selling Shareholder in accordance
with their respective terms.
(iii) To the best knowledge of such counsel, no
consent, approval, authorization, order, registration or
qualification of, or filing with, any third party (whether
acting in an individual, fiduciary or other capacity) or any
governmental or regulatory agency or body or any court is
required to be obtained or made by such Selling Shareholder
for the consummation of the transactions contemplated by this
Agreement, the Custody Agreement and the Power of Attorney in
connection with the sale of the Offered Securities sold by
such Selling Shareholders, except such as have been obtained
and made under the Act and such as may be required under state
securities laws.
(iv) The execution, delivery and performance by such
Selling Shareholder of this Agreement, the Custody Agreement
and Power of Attorney, the sale of the Offered Securities
being sold by such Selling Shareholder and the consummation by
such Selling Shareholder of any of the other transactions
herein or therein contemplated, do not and will not conflict
with or result in a breach or violation of any of the terms
and provisions of, and do not and will not constitute or will
constitute a default (or an event which with the giving of
notice or the lapse of time or both could reasonably be likely
to constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon the Offered
Securities to be sold by such Selling Shareholder under, to
the best knowledge of such counsel, (A) any statute, any rule,
regulation, requirement, order or decree of any governmental
or regulatory agency or body, or any court having jurisdiction
over such Selling Shareholder or any of its properties, assets
or operations or (B) any indenture, mortgage, loan or credit
agreement, note, lease, permit, license or other agreement or
instrument to which such Selling Shareholder is a party or by
which such Selling Shareholder
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is bound or to which any of the properties, assets or
operations of such Selling Shareholder is subject.
Such opinion shall be to such further effect with respect to
other legal matters relating to this Agreement and the transactions
contemplated hereby as the Representative and counsel to the
Underwriters may reasonably request. In rendering such opinion, such
counsel may rely as to matters governed by the laws of jurisdictions
other than the laws of jurisdictions in which such counsel are admitted
to practice and the federal laws of the United States upon the opinions
of counsel reasonably satisfactory to the Representative and counsel to
the Underwriters.
(g) The Representative shall have received from ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the validity of the Offered
Securities delivered on such Closing Date, the Registration Statements,
the Prospectus and other related matters as the Representative may
require, and the Selling Shareholders and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) The Representative shall have received a certificate,
dated such Closing Date, of the President or any Vice-President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: (A) the representations and warranties
of the Company in this Agreement are true and correct as though made on
such Closing Date; (B) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; (C) no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; (D) the Additional Registration
Statement (if any) satisfying the requirements of subparagraphs (1) and
(3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment
of the applicable filing fee in accordance with Rule 111(a) or (b)
under the Act, prior to the time the Prospectus was printed and
distributed to any Underwriter; (E) subsequent to the dates as of which
information is given in the Registration Statements and the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, prospects, results of operations or
general affairs of the Company and its subsidiaries taken as a whole;
and (F) they have carefully examined the Registration Statements and
the Prospectus and neither any Registration Statement nor the
Prospectus or any amendment or supplement thereto, as of their
respective effective or issue dates and as of such Closing Date,
contained an untrue statement of a material fact or omitted to state
any material fact
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required to be stated therein or necessary to make the statements
therein not misleading.
(i) The Representative shall have received a letter, dated
such Closing Date, of Deloitte & Touche LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(j) The Representative shall have received such other
opinions, certificates, letters and other documents from or on behalf
of the Company or the Selling Shareholders as the Representative shall
reasonably request.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof, only if they are reasonably satisfactory
in form and substance to CSFBC and counsel for the Underwriters. The Company and
the Selling Shareholders will furnish the Representative with such conformed
copies of such opinions, certificates, letters and documents as the
Representative reasonably requests. CSFBC may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
Insofar as the foregoing indemnity agreement, or the representations
and warranties contained in Section 2(a)(ii), may permit indemnification for
liabilities under the Act of any person who is an Underwriter or a partner or
controlling person of an
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Underwriter within the meaning of Section 15 of the Act and who, at the date of
this Agreement, is a director, officer or controlling person of the Company, the
Company has been advised that in the opinion of the Commission such provisions
may contravene Federal public policy as expressed in the Act and may therefore
be unenforceable. In the event that a claim for indemnification under such
agreement or such representations and warranties for any such liabilities
(except insofar as such agreement provides for the payment by the Company of
expenses incurred or paid by a director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted by such a
person, the Company will submit to a court of appropriate jurisdiction (unless
in the opinion of counsel for the Company the matter has already been settled by
controlling precedent) the question of whether or not indemnification by it for
such liabilities is against public policy as expressed in the Act and therefore
unenforceable, and the Company will be governed by the final adjudication of
such issue.
(b) The Selling Shareholders, severally and not jointly, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Selling Shareholders will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by an Underwriter
through the Representative specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in subsection (c) below.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Shareholder against any losses, claims,
damages or liabilities to which the Company or such Selling Shareholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent,
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that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and each Selling Shareholder in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: (i) the
legend concerning over-allotments and stabilizing on the inside front cover page
and (ii) the information appearing under the caption "Underwriting" with respect
to (A) concession and discount figures and (B) discretionary sales.
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholders on
the
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one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Shareholders on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Shareholders bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Shareholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section shall be in addition to any liability which the Company and the
Selling Shareholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Shareholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such
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arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC, the
Company and the Selling Shareholders for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Shareholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Shareholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Shareholder, the Company or any of their respective Representative, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Shareholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Shareholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(c), the Company and the Selling
Shareholders will, jointly and severally, reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representative at Eleven Madison Avenue, New York, N.Y. 10010-3629,
Attention: Investment Banking Department - Transactions Advisory Group, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at DBT Online,
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Inc., ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
[ ], or, if sent to the Selling Shareholders or any of them, will be
mailed, delivered or telegraphed and confirmed to [ ] at [ ]
provided, however, that any notice to an Underwriter pursuant to Section 7
will be mailed, delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representative will be binding
upon all the Underwriters. The Custodian will act for the Selling Shareholders
in connection with such transactions, and any action under or in respect of this
Agreement taken by the Custodian will be binding upon all the Selling
Shareholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and the Selling Shareholders hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
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37
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Shareholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
DBT ONLINE, INC.
By________________________________
Name:
Title:
SELLING SHAREHOLDERS:
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇
__________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
__________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ERLBAUM
__________________________________
▇▇▇▇ ▇▇▇▇▇
__________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇
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The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
By__________________________________
Name:
Title:
Acting on behalf of themselves and
as the Representative of the
several Underwriters.
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SCHEDULE A
NUMBER OF NUMBER OF
FIRM OPTIONAL
SECURITIES TO SECURITIES TO
SELLING SHAREHOLDER BE SOLD BE SOLD
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. Erlbaum
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------- ----------------
Total..............................
=============== ================
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SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
---------------------
Credit Suisse First Boston Corporation.................
Invemed Associates, Inc. ..............................
---------------------
Total..........................................
=====================
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EXHIBIT 1
SUBSIDIARIES
NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION
------------------ -----------------------------
Database Technologies, Inc. Florida
Patlex Corporation Pennsylvania
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