EXHIBIT 1
WEST CORPORATION
COMMON STOCK, PAR VALUE $0.01 PER SHARE
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UNDERWRITING AGREEMENT
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October 6, 2005
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
As representative of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ (the "Selling Stockholders") propose,
subject to the terms and conditions stated herein, to sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 5,000,000 shares
(the " Shares") of common stock, par value $0.01 per share ("Stock"), of West
Corporation, a Delaware corporation (the "Company"). The Selling Stockholders
own the Shares in joint tenancy with right of survivorship.
1. (a) The Company represents and warrants to, and agrees with, each
of the Underwriters and the Selling Stockholders that:
(i) A registration statement on Form S-3 (File No. 333-127965)
covering the registration of the Shares and certain other securities
under the Securities Act of 1933, as amended (the "Act") has been
filed with the Securities and Exchange Commission (the "Commission");
the registration statement described above includes a prospectus (the
"Base Prospectus") prepared in accordance with Rule 415 under the Act
relating to the Shares and to certain other securities to be offered
thereby from time to time in accordance with Rule 415 under the Act;
the Company has filed with, or transmitted for filing to, the
Commission a preliminary prospectus supplement (the "Preliminary
Prospectus Supplement") specifically relating to the Shares pursuant
to Rule 424(b) under the Act and will file with, or transmit for
filing to, the Commission a final prospectus supplement (the
"Prospectus Supplement") setting forth the terms of the offering, sale
and plan of distribution of the Shares pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof; the various parts of
the registration statement (as amended, if applicable), including all
exhibits thereto and including (i) the information contained in the
Preliminary Prospectus Supplement and the Prospectus Supplement and
deemed by virtue of Rule 430A under the Act to be part of the
registration statement at the time it was declared effective and (ii)
the documents incorporated by reference in the Base Prospectus
contained in the Registration Statement at the time such part of the
Registration Statement became effective, each as amended at the time
such part of the Registration Statement became effective, are
hereinafter collectively called the "Registration Statement"; if the
Company has filed an abbreviated registration statement to register
additional shares of Stock pursuant to Rule 462(b) under the Act (the
"Rule 462(b) Registration Statement"), then any reference herein to
the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement; the Base Prospectus as
supplemented by the Preliminary Prospectus Supplement and the
Prospectus Supplement are hereinafter collectively called the
"Prospectus"; any reference herein to the Base Prospectus, the
Preliminary Prospectus Supplement, Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such Base Prospectus, Preliminary
Prospectus Supplement, Prospectus Supplement or Prospectus, as the
case may be; any reference to any amendment or supplement to the Base
Prospectus, any Preliminary Prospectus Supplement, Prospectus
Supplement or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Base Prospectus,
Preliminary Prospectus Supplement, Prospectus Supplement or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Base Prospectus, Preliminary Prospectus Supplement, Prospectus
Supplement or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; the Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto but including all
documents incorporated by reference in the Prospectus contained
therein, to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a Rule 462(b)
Registration Statement, which became effective upon filing, no other
document with respect to the Registration Statement or document
incorporated by reference therein has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission;
(ii) No order preventing or suspending the use of any Preliminary
Prospectus Supplement has been issued by the Commission, and each
Preliminary Prospectus Supplement, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co.
expressly for use therein or by a Selling Stockholder expressly for
use in the preparation of the answers therein to Item 7 of Form S-3;
(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not
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contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through ▇▇▇▇▇▇▇,
Sachs & Co. expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the
answers therein to Item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
material interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries (other than changes resulting from (a) the issuance of
Stock pursuant to the exercise of options disclosed as outstanding in
the Prospectus or (b) the repayment of $18.0 million of indebtedness
under the Company's revolving credit facility) or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus;
(vi) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them that is material to the Company
and its subsidiaries taken as a whole, in each case free and clear of
all liens, encumbrances and defects except such as are described in
the Prospectus or such as would not, individually or in the aggregate,
have a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole ("Material Adverse Effect"); and any
real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as would not, individually or in the
aggregate, have a Material Adverse Effect;
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
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business so as to require such qualification, except to the extent
that the failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect; Schedule III(a) sets forth
each "significant subsidiary" of the Company (as such term is defined
in Rule 1-02(w) of Regulation S-X promulgated under the Act); Schedule
III(b) sets forth additional subsidiaries of the Company; each
subsidiary listed on Schedule III(a) and Schedule III(b) is herein
referred to as a "Significant Subsidiary"; each Significant Subsidiary
has been duly incorporated or formed, as the case may be, and is
validly existing as a corporation, limited liability company or
limited partnership, as the case may be, in good standing under the
laws of its jurisdiction of incorporation or organization as the case
may be; each Significant Subsidiary has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, except to the except that the failure to be so
qualified would not, individually or in the aggregate, have a Material
Adverse Effect;
(viii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description of the
Stock contained in the Prospectus; and all of the issued shares of
capital stock of each Significant Subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares and except
as set forth in the Prospectus) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims; and the stockholders of the Company have no preemptive or
similar rights;
(x) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
(i) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) the provisions of
the Restated Certificate of Incorporation or Amended and Restated
By-laws of the Company or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, except, in the cases of clauses (i) and (iii) above,
for conflicts, breaches, violations or defaults that would not have,
individually or in the aggregate, a Material Adverse Effect; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in
violation of its Restated Certificate of Incorporation or Amended and
Restated By-laws. Neither the Company nor any of its subsidiaries is
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its
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properties may be bound, except to the extent that any such default
would not, individually or in the aggregate, have a Material Adverse
Effect;
(xii) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, under the caption
"Business--Legal Proceedings", under the caption "Business--Government
Regulation" and under the caption "Certain Material U.S. Federal
Income Tax Consequences to Non-U.S. Holders", insofar as they purport
to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects;
(xiii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(xiv) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xv) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, and have audited the
Company's internal control over financial reporting and management's
assessment thereof, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder;
(xvi) The Company maintains a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) of the
Exchange Act) that complies with the requirements of the Exchange Act
and has been designed by the Company's principal executive officer and
principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles. The Company's
internal control over financial reporting is effective and the Company
is not aware of any material weaknesses in its internal control over
financial reporting;
(xvii) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, there has
been no change in the Company's internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company's internal control over financial
reporting;
(xviii)The Company maintains disclosure controls and procedures
(as such term is defined in Rule 13a-15(e) of the Exchange Act) that
comply with the requirements of the Exchange Act; such disclosure
controls and procedures have been designed to ensure that material
information relating to the Company and its subsidiaries is made known
to the Company's principal executive officer and principal financial
officer by others within those entities; such disclosure controls and
procedures are effective;
(xix) All disclosures contained in the Registration Statement or
Prospectus regarding "non-GAAP financial measures" (as such term is
defined by the rules and regulations of the Commission) comply with
Regulation G of the Exchange Act and Item 10 of Regulation S-K under
the Act, to the extent applicable;
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(xx) Except as described in the Prospectus, the properties,
assets and operations of the Company are in compliance in all material
respects with all applicable Environmental Laws. Except as described
in the Prospectus, the Company is not the subject of any federal,
state, or local investigation pursuant to Environmental Laws and the
Company has not received any written notice or claim pursuant to
Environmental Laws, which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect. For the
purpose of this paragraph, "Environmental Laws" means all federal,
state, and local laws, statutes, codes, ordinances, rules,
regulations, directives, permits, licenses, or orders relating to the
natural environment, or employee health or safety, including, but not
limited to, any law, statute, code, ordinance, rule, regulation,
directive, permit, license or order relating to (1) the release,
discharge or emission of any pollutant into the natural environment,
(2) damage to any natural resource, (3) the use, handling or disposal
of any chemical substance or (4) workplace or worker safety and
health, as such requirements are promulgated by the specifically
authorized governmental authority responsible for administering such
requirements, or imposed by judicial order or fiat;
(xxi) Except as described in the Prospectus, the operations of
the Company have been and currently are in compliance with all federal
and state laws, regulations, orders and decrees applicable to the
Company's receivables management business, except for such failures to
comply that would not, individually or in the aggregate, have a
Material Adverse Effect;
(xxii) The Company has not received, and has no reason to believe
that it will receive, any notice of proceedings relating to the
suspension, revocation or modification of any Government licenses
needed for the conduct of its receivables management business, nor has
it any reason to believe that any such Government licenses will not be
renewed in the ordinary course, except for any such suspensions,
revocations, modifications or failures to renew that would not,
individually or in the aggregate, have a Material Adverse Effect. For
purposes of this Agreement, "Government" and "Governmental" means any
nation or government, any provincial, state, regional, local or other
political subdivision thereof, any supranational organization of
sovereign states, and any entity, department, commission, bureau,
agency, authority, board, court, official or officer, domestic or
foreign, exercising executive, judicial, regulatory or administrative
functions of or pertaining to government;
(xxiii)The Company is not aware of any legal proceedings or
Governmental proceeding to which the Company or any of its
subsidiaries is a party regarding the Company's compliance with the
laws and regulations, orders and decrees applicable to its receivable
management business which, if determined or concluded adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, and to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated by Government authorities or others; and
(xxiv) The Company is not a provider of "telecommunications"
under the Communications Act of 1934, as amended, and is not subject
to the regulatory obligations, including the requirement to make
universal service contributions and pay other fees and charges, that
are applicable to providers of telecommunications.
(b) The Selling Stockholders severally represent and warrant to, and agree
with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by the Selling Stockholders of this Agreement
and for the sale and delivery of the
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Shares to be sold by the Selling Stockholders hereunder, have been
obtained; the Selling Stockholders have, and immediately prior to the Time
of Delivery (as defined in Section 4 hereof), the Selling Stockholders will
have, good and valid title to the Shares, free and clear of all liens,
encumbrances, equities or claims; and the Selling Stockholders have full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Shares;
(ii) The sale of the Shares to be sold by the Selling Stockholders
hereunder and the compliance by the Selling Stockholders with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which any Selling Stockholder is a party
or by which any Selling Stockholder is bound or to which any of the
property or assets of any Selling Stockholder is subject, nor will such
action result in any violation of the provisions of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Selling Stockholders or the property of the
Selling Stockholders;
(iii) Upon payment for the Shares by the Underwriters and the delivery
to The Depositary Trust Company ("DTC") or its agent of the Shares
registered in the name of Cede & Co. or such other nominee designated by
DTC, both as provided for herein, and the crediting of the Shares to the
Underwriters' accounts with DTC, Cede & Co. or such other nominee
designated by DTC will be a "protected purchaser" of the Shares (as defined
in Section 8-303 of the Code), the Underwriters will acquire a valid
security entitlement to the Shares, and no action based on an "adverse
claim" (as defined in Section 8-102 of the New York Uniform Commercial Code
(the "Code")) may be asserted against the Underwriters with respect to such
security entitlement (assuming that the Underwriters are without notice of
such adverse claim);
(iv) During the period beginning from the date hereof and continuing
to and including the date 150 days after the date of the Prospectus, not to
offer, sell, contract to sell, pledge, grant any option to purchase, make
any short sale or otherwise dispose of, except as provided hereunder, any
securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than (a) the transfer of such
securities as a bona fide gift or gifts, provided that the donee or donees
thereof agree to be bound in writing by the restrictions set forth herein;
or (b) the transfer of such securities to any trust for the direct or
indirect benefit of such Selling Stockholder or the immediate family of
such Selling Stockholder, provided that the trustee of the trust agrees to
be bound in writing by the restrictions set forth herein, and provided
further that any such transfer shall not involve a disposition for value),
without your prior written consent. The term "immediate family" shall mean
any relationship by blood, marriage or adoption, not more remote than first
cousin. Such Selling Stockholder acknowledges and agrees that the foregoing
restrictions are intended to preclude such Selling Stockholder from
engaging in any hedging or other transaction which is designed to or which
reasonably could be expected to lead to or result in a sale or disposition
of such Selling Stockholder's securities of the Company even if such
securities would be disposed of by someone other than such Selling
Stockholder. Such prohibited hedging or other transactions would include
without limitation any short sale or any purchase, sale or grant of any
right (including without limitation any put
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or call option) with respect to any of the Selling Stockholder's Stock or
with respect to any security that includes, relates to, or derives any
significant part of its value from such Stock;
(v) Such Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus Supplement, the
Prospectus or any amendment or supplement thereto are made in reliance upon
and in conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, such Preliminary Prospectus
Supplement and the Registration Statement did, and the Prospectus and any
further amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder and
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
the Time of Delivery (as hereinafter defined) 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); and
(viii) The obligations of the Selling Stockholders hereunder shall not
be terminated by operation of law, whether by the death or incapacity of
any Selling Stockholder or by the occurrence of any other event; if any
Selling Stockholder should die or become incapacitated or if any other such
event should occur before the delivery of the Shares hereunder,
certificates representing the Shares shall be delivered by or on behalf of
the Selling Stockholders in accordance with the terms and conditions of
this Agreement.
2. Subject to the terms and conditions herein set forth, the Selling
Stockholders, jointly and severally, agree to sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Selling Stockholders, at a purchase price per share of $33.60, the number of
Shares set forth opposite the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by you of the release of the Shares, the
several Underwriters propose to offer the Shares for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight hours' prior
notice to the Selling Stockholders shall be delivered by or on behalf of the
Selling Stockholders to ▇▇▇▇▇▇▇, Sachs & Co., through the facilities of DTC, for
the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Selling Stockholders to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at least forty-eight hours in advance. The Company will
cause the certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery (as
defined below) with respect thereto at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such
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delivery and payment shall be, with respect to the Shares, 9:30 a.m., New York
City time, on October 13, 2005 or such other time and date as ▇▇▇▇▇▇▇, Sachs &
Co. and the Selling Stockholders may agree upon in writing. Such time and date
are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(m) hereof, will be delivered at the offices
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 3:00 p.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof, provided, however, that your
approval shall not be unreasonably withheld; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus
Supplement or prospectus, of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus Supplement or prospectus or suspending
any such qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
9
(c) Prior to 3:00 P.M., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
use your best efforts to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as
you may reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the
Shares and if at such time any events shall have occurred 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 in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify you and upon
your request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many written
and electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales of
any of the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than
pursuant to employee stock option plans or deferred compensation plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement),
without your prior written consent;
(f) To the extent not otherwise available on the Commission's
Electronic Data, Gathering, Analysis and Retrieval System ("▇▇▇▇▇"), to
furnish to its stockholders within the time prescribed by the Exchange Act
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries certified by independent public
accountants) and, within the time prescribed by the Exchange Act after the
end of each of the first three quarters of each fiscal year (beginning with
the fiscal quarter ending after the effective date of the Registration
Statement), to make available to its stockholders consolidated summary
financial information of the Company and its subsidiaries for such quarter
in reasonable detail;
10
(g) During a period ending upon the earlier to occur of (A) three
years from the effective date of the Registration Statement and (B) such
time as the Company shall not have any securities registered under the
Exchange Act, to the extent not otherwise available on ▇▇▇▇▇, to furnish to
you copies of all reports or other communications (financial or other)
furnished to stockholders, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
non-confidential information concerning the business and financial
condition of the Company as you may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission);
(h) For so long as the Company has securities registered under the
Exchange Act, to use its reasonable best efforts to list for quotation the
Shares on the National Association of Securities Dealers Automated
Quotations National Market System ("NASDAQ");
(i) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(j) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); provided, however, that the License
shall be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred.
6. The Company and each of the Selling Stockholders covenant and agree
with one another and with the several Underwriters that (a) the Company will pay
or cause to be paid the following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Shares under the Act and expenses of one counsel for the Selling Stockholders in
an amount not to exceed $15,000; (ii) all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus Supplement, Prospectus Supplement and the Prospectus and amendments
and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (iii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iv) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (v) all fees and
expenses in connection with listing the Shares on NASDAQ; (vi) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (vii) the cost
of preparing stock certificates; (viii) the cost and charges of any transfer
agent or registrar and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section 6; and (b) the Selling Stockholders will
11
pay or cause to be paid all costs and expenses incident to the performance of
the Selling Stockholders' obligations hereunder which are not otherwise
specifically provided for in this Section, including (i) the fees and expenses
of counsel for the Selling Stockholders not covered by (a)(i) above; and (ii)
all expenses and taxes incident to the sale and delivery of the Shares to be
sold by the Selling Stockholders to the Underwriters hereunder. In connection
with clause (b) of the preceding sentence, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. agrees to pay
New York State stock transfer tax, and the Selling Stockholders agree to
reimburse ▇▇▇▇▇▇▇, Sachs & Co. for associated carrying costs if such tax payment
is not rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that the Company shall bear, and the Selling
Stockholders shall not be required to pay or to reimburse the Company for, the
cost of any other matters not directly relating to the sale and purchase of the
Shares pursuant to this Agreement, and that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company and of the Selling Stockholders herein are, at
and as of the Time of Delivery, true and correct, the condition that the Company
and the Selling Stockholders shall have performed all of its and their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have
furnished to you their written opinion, dated as of the Time of Delivery,
in the form attached as Annex II(a) hereto, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) ▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel for the Company, shall have
furnished to you his written opinion (a draft of such opinion is attached
as Annex II(b) hereto), dated as of the Time of Delivery, in form and
substance satisfactory to you;
(d) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, shall
have furnished to you their written opinion (a draft of such opinion is
attached as Annex II(c) hereto), dated as of the Time of Delivery, in form
and substance satisfactory to you;
(e) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders,
shall have furnished to you their written opinion (a draft of each such
opinion is attached as Annex II(d) hereto), dated the Time of Delivery, in
form and substance satisfactory to you;
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at the Time of Delivery, Deloitte &
Touche LLP shall have furnished to you a letter or letters, dated the
12
respective dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto (the executed copy of the
letter delivered prior to the execution of this Agreement is attached as
Annex I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of the Time of Delivery is attached as Annex I(b) hereto);
(g)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries (other than changes resulting from (a) the issuance of
Stock pursuant to the exercise of options disclosed as outstanding in the
Prospectus or (b) the repayment of $18.0 million of indebtedness under the
Company's revolving credit facility) or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representative
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares on the terms
and in the manner contemplated in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities or preferred stock by
any "nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on NASDAQ; (ii) a suspension or material limitation in
trading in the Company's securities on NASDAQ; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war or (v) the
occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of
the Representative makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in the
manner contemplated in the Prospectus;
(j) The Shares at the Time of Delivery shall have been duly listed for
quotation on NASDAQ; and
(k) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the individuals listed on
Schedule II hereto, substantially to the effect set forth in Annex III
hereof in form and substance satisfactory to you;
13
(l) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(m) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at the Time of Delivery certificates of
officers of the Company and of the Selling Stockholders, respectively,
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholders, respectively,
herein at and as of the Time of Delivery, as to the performance by the
Company and the Selling Stockholders of all of their respective obligations
hereunder to be performed at or prior to the Time of Delivery, and as to
such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (g) of this Section.
8. (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 an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus Supplement, Prospectus
Supplement, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, 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 action or
claim as such expenses are incurred; provided, however, that the Company shall
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 or omission or alleged omission made in any Preliminary
Prospectus Supplement, Prospectus Supplement, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(b) The Selling Stockholders, jointly and severally, 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 an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus Supplement, Prospectus Supplement, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, 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, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus Supplement, Prospectus
Supplement, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by the Selling Stockholders expressly for use therein;
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Selling Stockholders shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus Supplement,
14
Prospectus Supplement, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. expressly for use therein.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder 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 an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus Supplement, Prospectus Supplement, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, 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,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus Supplement, Prospectus Supplement, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection (except to the extent
that such indemnifying party is materially prejudiced by the failure to give
such notice; provided, however, that notwithstanding the foregoing clause, the
parties agree that any such failure to give notice shall not affect the
indemnifying party's contribution obligations set forth in Section 8(e) below).
In case any such action shall be brought against any indemnified party, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall 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 shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party. The indemnifying party shall not be required to indemnify the indemnified
party for any amount paid or payable by the indemnified party in the settlement
of any action, proceeding or investigation without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.
15
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Stockholders and the
Underwriters from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (d) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company, the Selling Stockholders and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholders 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 Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholders on
the one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, each of the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (e) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in 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 such action
or claim. 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 Shares 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 under this Section 8 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter or any Selling Stockholder within the meaning of the Act; the
obligations of the Selling Stockholders under this Section 8 shall be in
addition to any liability that the Selling Stockholders may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of the Company (including any person who, with his or her consent, is named in
the Registration Statement as about to become a director of the Company) and to
each person, if any, who controls the Company or any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability that the
16
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company) and to each person, if any, who
controls the Company or any Selling Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Shares on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then the Selling
Stockholders shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to you to purchase
such Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Selling Stockholders that you have so arranged for the
purchase of such Shares, or the Selling Stockholders notify you that they have
so arranged for the purchase of such Shares, you or the Selling Stockholders
shall have the right to postpone the Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares, then the Selling Stockholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares, or if the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholders, except for the expenses
to be borne by the Company and the Selling Stockholders and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or any of the Selling Stockholders, or any
officer or director or controlling person of the Company, or any
17
controlling person of any Selling Stockholder, and shall survive delivery of and
payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason the Shares are not delivered by or on behalf of the
Selling Stockholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares, but the Company and the Selling Stockholders shall then be under no
further liability to any Underwriter except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, Sachs & Co. on behalf of you as the
Representative.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representative in care of ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; if to the Selling Stockholders shall be delivered or sent by mail,
telex or facsimile transmission to the Selling Stockholders in care of West
Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Stockholders by you on request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholders and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, any Selling Stockholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto 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
instrument.
17. Notwithstanding anything herein to the contrary, the Company and
the Selling Stockholders are authorized to disclose to any persons the U.S.
federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax
analyses) provided to the Company and the Selling Stockholders relating to
18
that treatment and structure, without the Underwriters imposing any limitation
of any kind. However, any information relating to the tax treatment and tax
structure shall remain confidential (and the foregoing sentence shall not apply)
to the extent necessary to enable any person to comply with securities laws. For
this purpose, "tax structure" is limited to any facts that may be relevant to
that treatment.
18. The Company and each of the Selling Stockholders acknowledge and
agree that (i) the purchase and sale of the Shares pursuant to this Agreement is
an arm's-length commercial transaction between the Selling Stockholders, on the
one hand, and the several Underwriters, on the other, (ii) in connection
therewith and with the process leading to such transaction each Underwriter is
acting solely as a principal and not the agent or fiduciary of the Company or
the Selling Stockholders, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company or the Selling Stockholders
with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company or the Selling Stockholders on other matters) or any other
obligation to the Company or the Selling Stockholders except the obligations
expressly set forth in this Agreement and (iv) the Company and the Selling
Stockholders have consulted their own legal and financial advisors to the extent
it deemed appropriate. The Company and the Selling Stockholders agree that they
will not claim that the Underwriters, or any of them, has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the
Company or the Selling Stockholders, in connection with such transaction or the
process leading thereto.
19. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company, the Selling Stockholders and the
Underwriters, or any of them, with respect to the subject matter hereof. It is,
however, understood and agreed that (i) the Registration Rights Agreement, dated
November 25, 1996, between the Company, the Selling Stockholders and other
stockholders named therein, and (ii) the Indemnity Agreement, dated the date
hereof, between the Company and the Selling Stockholders, shall remain in full
force and effect.
20. The Company, each of the Selling Stockholders and each of the
Underwriters hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
If the foregoing is in accordance with your understanding, please sign
and return to us eight counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company and the Selling Stockholders for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
19
Very truly yours,
West Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Accepted as of the date hereof at New York, New York
▇▇▇▇▇▇▇, SACHS & CO.
BY: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
--------------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
20
SCHEDULE I
TOTAL NUMBER OF
SHARES
UNDERWRITER TO BE PURCHASED
----------- ---------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co......................................... 2,625,000
Credit Suisse First Boston LLC.............................. 625,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated.......................... 625,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. ............................ 625,000
Banc of America Securities LLC.............................. 500,000
Total.............................................. -------------
5,000,000
=============
21
SCHEDULE II
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
J. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SCHEDULE III(A)
West Business Services, LP
West Telemarketing, LP
West Interactive Corporation
West Direct, Inc.
InterCall, Inc.
SCHEDULE III(B)
West Asset Management, Inc.