1
EXHIBIT 1.1
2,128,800 Shares
ASSOCIATED MATERIALS INCORPORATED
Common Stock
UNDERWRITING AGREEMENT
______________, 1998
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
As Representatives of the Several Underwriters
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Associated Materials Incorporated, a Delaware corporation (the
"Company"), proposes to issue and sell an aggregate of 700,000 shares of its
common stock, par value $0.0025 per share ("Common Stock"), to the several
Underwriters named in Schedule II hereto (the "Underwriters") and the persons
named in Part A and Part B of Schedule I hereto (the "Selling Stockholders")
propose to sell to the several Underwriters an aggregate of 1,428,800 shares of
common stock of the Company. The Company and the Selling Stockholders are
hereinafter sometimes referred to as the "Sellers". The 700,000 shares of
Common Stock to be issued and sold to the Underwriters by the Company and the
1,428,800 shares of Common Stock to be sold to the Underwriters by the Selling
Stockholders are hereinafter referred to as the "Firm Shares". The Company and
the Selling Stockholders listed in Part B of Schedule I hereto also propose to
sell to the Underwriters, upon the terms and conditions set forth in Section 2
hereof, up to an additional 319,320 shares (the "Additional Shares") of Common
Stock. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the "Shares". Where appropriate, the term "Shares" shall also
be deemed to refer to the shares of Class B Common Stock, par value $0.0025 per
share ("Class B Common Stock"), issued by the Company and held by The
Prudential Insurance Company of America ("Prudential") that will be converted
into shares of Common Stock in connection with this offering.
The Company and the Selling Stockholders wish to confirm as follows
their respective agreements with you (the "Representatives") and the other
several Underwriters on whose behalf you are acting, in connection with the
several purchases of the Shares by the Underwriters.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1 under the Act
(the
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"registration statement"), including a prospectus subject to completion
relating to the Shares. The term "Registration Statement" as used in this
Agreement means the registration statement (including all financial schedules
(if any) and exhibits), as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement.
If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed and must
be declared effective before the offering of the Shares may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. If an abbreviated
registration statement is prepared and filed with the Commission in accordance
with Rule 462(b) under the Act (an "Abbreviated Registration Statement"), the
term "Registration Statement" as used in this Agreement includes the
Abbreviated Registration Statement. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement, or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, the term "Prospectus" as used in this Agreement means the
prospectus in the form included in the Registration Statement as supplemented
by the addition of the Rule 430A information contained in the prospectus filed
with the Commission pursuant to Rule 424(b). The term "Prepricing Prospectus"
as used in this Agreement means the prospectus subject to completion in the
form included in the registration statement at the time of the initial filing
of the registration statement with the Commission, and as such prospectus shall
have been amended from time to time prior to the date of the Prospectus.
2. Agreements to Sell and Purchase. Subject to such adjustments as
you may determine in order to avoid fractional shares, the Company hereby
agrees, subject to all the terms and conditions set forth herein, to issue and
sell to each Underwriter and, upon the basis of the representations, warranties
and agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $______ per Share (the "purchase price per share"), the number of Firm
Shares which bears the same proportion to the aggregate number of Firm Shares
to be issued and sold by the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II hereto (or such number of
Firm Shares increased as set forth in Section 12 hereof) bears to the aggregate
number of Firm Shares to be sold by the Company and the Selling Stockholders.
Subject to such adjustments as you may determine in order to avoid
fractional shares, each Selling Stockholder agrees, subject to all the terms
and conditions set forth herein, to sell to each Underwriter and, upon the
basis of the representations, warranties and agreements of the Company and the
Selling Stockholders herein contained and subject to all the terms and
conditions set forth herein, each Underwriter, severally and not jointly,
agrees to purchase from each Selling Stockholder at the purchase price per
share that number of Firm Shares which bears the same proportion to the number
of Firm Shares set forth opposite the name of such Selling Stockholder in
Schedule I hereto as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule II hereto (or such number of Firm Shares increased
as set forth in Section 12 hereof) bears to the aggregate number of Firm Shares
to be sold by the Company and the Selling Stockholders.
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The Company and the Selling Stockholders listed in Part B of Schedule
I hereto also agree, subject to all the terms and conditions set forth herein,
to sell to the Underwriters and, upon the basis of the representations,
warranties and agreements of the Company and the Selling Stockholders herein
contained and subject to all the terms and conditions set forth herein, the
Underwriters shall have the right to purchase from the Company and the Selling
Stockholders listed in Part B of Schedule I hereto, at the purchase price per
share, pursuant to an option (the "over-allotment option") which may be
exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 30th day after the date of the Prospectus (or, if such 30th day
shall be a Saturday or Sunday or a holiday, on the next business day thereafter
when the New York Stock Exchange is open for trading), up to an aggregate of
108,520 Additional Shares from the Company and up to an aggregate of 210,800
shares from the Selling Stockholders listed in Part B of Schedule I hereto (the
maximum number of Additional Shares which each of them agrees to sell upon the
exercise by the Underwriters of the over-allotment option is set forth opposite
their respective names in Part B of Schedule I). Additional Shares may be
purchased only for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. The number of Additional Shares which
the Underwriters elect to purchase upon any exercise of the over-allotment
option shall be provided by the Company and by each Selling Stockholder who has
agreed to sell Additional Shares in proportion to the respective maximum
numbers of Additional Shares which the Company and each such Selling
Stockholder has agreed to sell. Upon any exercise of the over-allotment
option, each Underwriter, severally and not jointly, agrees to purchase from
the Company and each Selling Stockholder who has agreed to sell Additional
Shares the number of Additional Shares (subject to such adjustments as you may
determine in order to avoid fractional shares) which bears the same proportion
to the number of Additional Shares to be sold by the Company and each Selling
Stockholder who has agreed to sell Additional Shares as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule II hereto
(or such number of Firm Shares increased as set forth in Section 12 hereof)
bears to the aggregate number of Firm Shares to be sold by the Company and the
Selling Stockholders.
Certificates in transferable form for the Shares (including any
Additional Shares) which each of the Selling Stockholders (other than
Prudential) agrees to sell pursuant to this Agreement have been placed in
custody with the Company (in such capacity, the "Custodian") for delivery under
this Agreement pursuant to a Custody Agreement and Power of Attorney (the
"Custody Agreement") executed by each of the Selling Stockholders (other than
Prudential) appointing ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and each of
them, as agents and attorneys-in-fact (the "Attorney-in Fact" or
"Attorneys-in-Fact"). Each Selling Stockholder (other than Prudential) agrees
that (i) the Shares represented by the certificates held in custody pursuant to
the Custody Agreement are subject to the interests of the Underwriters, the
Company and each other Selling Stockholder, (ii) the arrangements made by the
Selling Stockholders for such custody are, except as specifically provided in
the Custody Agreement, irrevocable, and (iii) the obligations of the Selling
Stockholders hereunder and under the Custody Agreement shall not be terminated
by any act of such Selling Stockholder or by operation of law, whether by the
death or incapacity of any Selling Stockholder or the occurrence of any other
event. If any Selling Stockholder (other than Prudential) shall die or be
incapacitated or if any other event shall occur before the delivery of the
Shares hereunder, certificates for the Shares of such Selling Stockholder shall
be delivered to the
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Underwriters by the Attorneys-in-Fact in accordance with the terms and
conditions of this Agreement and the Custody Agreement as if such death or
incapacity or other event had not occurred, regardless of whether or not the
Attorneys-in-Fact or any Underwriter shall have received notice of such death,
incapacity or other event. Each Attorney-in-Fact is authorized, on behalf of
each of the Selling Stockholders (other than Prudential), to execute this
Agreement and any other documents necessary or desirable in connection with the
sale of the Shares to be sold hereunder by such Selling Stockholder, to make
delivery of the certificates for such Shares, to receive the proceeds of the
sale of such Shares, to give receipts for such proceeds, to pay therefrom any
expenses to be borne by such Selling Stockholder in connection with the sale
and public offering of such Shares, to distribute the balance thereof to such
Selling Stockholder, and to take such other action as may be necessary or
desirable in connection with the transactions contemplated by this Agreement.
Each Attorney-in-Fact agrees to perform his duties under the Custody Agreement.
3. Terms of Public Offering. The Sellers have been advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable and initially
to offer the Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 A.M., New
York City time, on ____________, 1998 (the "Closing Date"). The place of
closing for the Firm Shares and the Closing Date may be varied by agreement
among you, the Company, Prudential and the Attorneys-in-Fact.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the aforementioned office
of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. at such time on such date (the "Option Closing Date"),
which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor earlier than two nor later than ten business days after
the giving of the notice hereinafter referred to, as shall be specified in a
written notice from you on behalf of the Underwriters to the Company and the
Attorneys-in-Fact of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Shares. The place of closing for any
Additional Shares and the Option Closing Date for such Shares may be varied by
agreement among you, the Company and the Attorneys-in-Fact.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor in immediately available funds.
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5. Agreements of the Company. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Company will endeavor to cause the Registration Statement or such
post-effective amendment to become effective as soon as possible and will
advise you promptly and, if requested by you, will confirm such advice in
writing, when the Registration Statement or such post-effective amendment has
become effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of the Shares
for offering or sale in any jurisdiction or the initiation of any proceeding
for such purpose; and (iii) within the period of time referred to in paragraph
(f) below, of any material change in the Company's condition (financial or
other), business, prospects, properties or results of operations, or of the
happening of any event, which makes any statement of a material fact made in
the Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other applicable law. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, three
signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits thereto, and will also furnish to you, without charge, such number
of conformed copies of the registration statement as originally filed and of
each amendment thereto, but without exhibits, as you may reasonably request.
(d) The Company will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which you shall
reasonably object after being so advised or (ii) so long as, in the opinion of
counsel for the Underwriters, a Prospectus is required to be delivered in
connection with sales by any Underwriter or dealer, file any information,
documents or reports pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") without delivering a copy of such information,
documents or reports to you, as Representatives of the Underwriters, prior to
or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each form of the
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Prepricing Prospectus. The Company consents to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several Underwriters and
by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus
so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto)
as you may reasonably request. The Company consents to the use of the
Prospectus (and of any amendment or supplement thereto) in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several Underwriters and
by all dealers to whom Shares may be sold, both in connection with the offering
and sale of the Shares and for such period of time thereafter as the Prospectus
is required by the Act to be delivered in connection with sales by any
Underwriter or dealer. If during such period of time any event shall occur
that in the judgment of the Company or in the opinion of counsel for the
Underwriters is required to be set forth in the Prospectus (as then amended or
supplemented) or should be set forth therein in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary to supplement or amend the Prospectus to
comply with the Act or any other applicable law, the Company will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with the
Commission an appropriate supplement or amendment thereto, and will
expeditiously furnish to the Underwriters and dealers a reasonable number of
copies thereof. In the event that the Company and you, as Representatives of
the several Underwriters, agree that the Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided
that in no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action which
would subject it to service of process in suits, other than those arising out
of the offering or sale of the Shares, in any jurisdiction where it is not now
so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering
a twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as
practicable after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of three years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders generally or filed
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with the Commission, and (ii) from time to time such other information
concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 12 hereof or by notice given by you terminating
this Agreement pursuant to Section 12 or Section 13 hereof) or if this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Company or the Selling Stockholders to comply with
the terms or fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the Representatives for all out-of-pocket expenses
(including reasonable fees and expenses of counsel for the Underwriters)
incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of
the Shares to be sold by it hereunder substantially in accordance with the
description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and will
advise you of the time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not
sell, contract to sell or otherwise dispose of any Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
grant any options or warrants to purchase Common Stock, for a period of 180
days after the date of the Prospectus, without the prior written consent of
▇▇▇▇▇ ▇▇▇▇▇▇ Inc, except that, notwithstanding the foregoing provisions of this
paragraph (m), the Company may (i) issue shares of Common Stock .pursuant to
the exercise of presently outstanding options to purchase Common Stock, (ii)
grant options to purchase Common Stock pursuant to the Company's Amended and
Restated 1994 Stock Incentive Plan, and (iii) issue shares upon conversion of
outstanding shares of Class B Common Stock.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in the form attached hereto as Exhibit 5(n), signed by each of its
current officers and directors and each of its stockholders listed on Schedule
5(n).
(o) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best reasonable efforts to have
the Common Stock approved for quotation, subject to notice of issuance, on the
NASDAQ National Market concurrently with the effectiveness of the Registration
Statement.
6. Agreements of the Selling Stockholders. Each of the Selling
Stockholders severally and not jointly agrees with the several Underwriters as
follows (except with respect to Section 6(g) as to which applies only to
Prudential):
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(a) Such Selling Stockholder will cooperate to the extent
necessary to cause the Registration Statement or any post-effective amendment
thereto to become effective at the earliest possible time.
(b) Such Selling Stockholder will pay all Federal and other
taxes, if any on the transfer or sale of the Shares being sold by the Selling
Stockholder to the Underwriters.
(c) Such Selling Stockholder will do or perform all things
required to be done or performed by such Selling Stockholder prior to the
Closing Date or any Option Closing Date, as the case may be, to satisfy all
conditions precedent to the delivery of the Shares owned by such Selling
Shareholder pursuant to this Agreement.
(d) Such Selling Stockholder has executed or will execute a
"lock-up" letter as provided in Section 5(n) above and will not sell, contract
to sell or otherwise dispose of any Common Stock, except for the sale of Shares
to the Underwriters pursuant to this Agreement, prior to the expiration of 180
days after the date of the Prospectus, without the prior written consent of
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(e) Except as stated in this Agreement and in the Prepricing
Prospectus and the Prospectus, such Selling Stockholder will not take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(f) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of
time referred to in Section 5(f) hereof, of any change in information relating
to such Selling Stockholder or the Company of which such Selling Shareholder
has actual knowledge or any new information relating to such Selling
Stockholder that suggests that any statement made in the Registration Statement
or the Prospectus (as then amended or supplemented, if amended or supplemented)
is or may be untrue in any material respect or that the Registration Statement
or Prospectus (as then amended or supplemented, if amended or supplemented)
omits or may omit to state a material fact or a fact necessary to be stated
therein in order to make the statements therein not misleading in any material
respect, or of the necessity to amend or supplement the Prospectus (as then
amended or supplemented, if amended or supplemented) in order to comply with
the Act or any other applicable law.
(g) Prudential further agrees with the several Underwriters
that at least one full business day prior to the Closing, Prudential will
deliver to the Company for conversion into shares of Common Stock, a
certificate or certificates representing at least 1,000,000 shares of Class B
Common Stock, together with valid, duly executed blank stock powers, with
signatures appropriately guaranteed, for such shares, and written notice
setting forth the information specified by Article IV, Section 4.2.B.6 of the
Company's Restated Certificate of Incorporation. At least one full business
day prior to any Option Closing Date, Prudential will deliver to the Company
for conversion into shares of Common Stock, a certificate or certificates
representing at least that number of shares of Class B Common Stock equal to
the number of shares of Common Stock to be delivered and sold by Prudential on
the Option Closing Date, together with valid, duly executed
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blank stock powers, with signatures appropriately guaranteed, for such shares,
and written notice setting forth the information specified by Article IV,
Section 4.2.B.6 of the Company's Restated Certificate of Incorporation.
7. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The Registration Statement in the form in which it became
or becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the prospectus and any supplement
or amendment thereto when filed with the Commission under Rule 424(b) under the
Act, complied or will comply in all material respects with the provisions of
the Act and did not or will not at any such times 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, except that
this representation and warranty does not apply to statements in or omissions
from the Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Company in writing by or on behalf of any Underwriter through you or any
Selling Stockholder expressly for use therein.
(c) All the outstanding shares of Common Stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights (except for those preemptive
or similar rights set forth in the Stockholders' Agreement dated August 19,
1993, as amended); the Shares to be issued and sold by the Company have been
duly authorized and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms hereof, will be validly issued,
fully paid and nonassessable and free of any preemptive or similar rights; and
the capital stock of the Company conforms in all material respects to the
description thereof in the registration statement and the prospectus. The
Common Stock (including the Firm Shares and the Additional Shares), when issued
and delivered in accordance with this Agreement, will conform in all material
respects to the descriptions thereof contained in the Registration Statement
and the Prospectus.
(d) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure to so register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and Amercord (as hereinafter
defined) taken as a whole.
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(e) The Company does not have any subsidiaries other than
Amercord, Inc., a Delaware corporation ("Amercord"). Amercord is a corporation
duly organized, validly existing and in good standing in the jurisdiction of
its incorporation, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus, and is duly registered and qualified
to conduct its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify does not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the Company
and Amercord, taken as a whole; all the outstanding shares of capital stock of
Amercord issued to the Company have been duly authorized and validly issued,
are fully paid and nonassessable, and are owned by the Company free and clear
of any lien, adverse claim, security interest, equity or other encumbrance,
except as specifically described in the Registration Statement, including the
exhibits thereto.
(f) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the Company or Amercord,
or to which the Company or Amercord, or to which any of their respective
properties is subject, that are required to be described in the Registration
Statement or the Prospectus but are not described as required, and there are no
agreements, contracts, indentures, leases or other instruments that are
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that are not described or
filed as required by the Act.
(g) Neither the Company nor Amercord is in violation of its
certificate of incorporation or by-laws or of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company or
Amercord or of any decree of any court or governmental agency or body having
jurisdiction over the Company or Amercord, or in default in any material
respect in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other instrument to which the Company
or Amercord is a party or by which any of them or any of their respective
properties may be bound.
(h) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the consummation
by the Company of the transactions contemplated hereby (i) requires any
consent, approval, authorization or other order of or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration
of the Shares under the Act and the Exchange Act and compliance with the
securities or Blue Sky laws of various jurisdictions, all of which have been or
will be effected in accordance with this Agreement) or conflicts or will
conflict with or constitutes or will constitute a breach of, or a default
under, the certificate of incorporation or bylaws of the Company or Amercord,
or (ii) conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, any material agreement, indenture, lease or
other instrument to which the Company or Amercord is a party or by which either
of them or any of their respective properties may be bound, or violates or will
violate any statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Company
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or Amercord or any of their respective properties, or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or Amercord pursuant to the terms of any agreement or
instrument to which either of them is a party or by which either of them is
bound or to which any of the property or assets of either of them is subject.
(i) The accountants, Ernst & Young LLP, who have certified or
shall certify the financial statements included in the Registration Statement
and the Prospectus (or any amendment or supplement thereto) are independent
public accountants as required by the Act.
(j) The financial statements, together with related schedules
(if any) and notes, included in the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial position of
the Company on the basis stated in the Registration Statement at the respective
dates or for the respective periods to which they apply; such statements and
related schedules (if any) and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial and
statistical information and data included in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with such financial statements and the books
and records of the Company and Amercord.
(k) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and validly
authorized by the Company, and this Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
as rights to indemnity and contribution hereunder may be limited by federal or
state securities laws or the public policy underlying such laws.
(l) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor Amercord has incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary course of
business, that is material to the Company and Amercord taken as a whole, and
there has not been any change in the capital stock, or material increase in the
short-term debt or long-term debt, of the Company or Amercord, or any material
adverse change, or any development involving or which may reasonably be
expected to involve, a prospective material adverse change, in the condition
(financial or other), business or results of operations of the Company and
Amercord taken as a whole.
(m) Each of the Company and Amercord has good and marketable
title to all property (real and personal) described in the Prospectus as being
owned by it, free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Registration Statement and the
Prospectus or in a document filed as an exhibit to the Registration Statement
and all the property described in the Prospectus as being held under lease by
each of the Company and Amercord is held by it under valid, subsisting and
enforceable leases.
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(n) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the Act.
(o) Each of the Company and Amercord has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its respective properties and
to conduct its business in the manner described in the Prospectus, subject to
such qualifications as may be set forth in the Prospectus; each of the Company
and Amercord has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit,
subject in each case to such qualification as may be set forth in the
Prospectus; and, except as described in the Prospectus, none of such permits
contains any restriction that is materially burdensome to the Company or
Amercord.
(p) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(q) To the Company's knowledge, neither the Company nor
Amercord nor any employee or agent of the Company or Amercord has made any
payment of funds of the Company or Amercord or received or retained any funds
in violation of any applicable law, rule or regulation, which payment, receipt
or retention of funds is of a character required to be disclosed in the
Prospectus.
(r) Each of the Company and Amercord has filed all tax returns
required to be filed through the date hereof or has received valid extensions
thereof, which returns are complete and correct in all material respects, and
neither the Company nor Amercord is in default in the payment of any taxes
which were payable pursuant to said returns or any assessments with respect
thereto, .except where the failure to file, extend the due date of or pay the
same, in the aggregate, would not reasonably be expected to have a material
adverse effect on the condition (financial or other), business, net-worth or
results of operations of the Company and Amercord taken as a whole.
(s) Except as described the Prospectus or as provided for in
the registration rights agreement filed as an exhibit to the Registration
Statement, no holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the Company
because of the filing of the registration statement or consummation of the
transactions contemplated by this Agreement. All such registration rights are
either not applicable to, or have
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been waived, or no rights have been asserted or will be asserted, in connection
with the registration of the Shares pursuant to the Registration Statement.
(t) The Company and Amercord own or possess all patents,
trademarks, trademark registrations, service marks, service ▇▇▇▇ registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
described in the Prospectus as being owned by them or necessary for the conduct
of their respective businesses, and the Company is not aware of any claim to
the contrary or any challenge by any other person to the rights of the Company
and Amercord with respect to the foregoing.
(u) The Company is not now, and after sale of the Shares to be
sold by it hereunder and application of the net proceeds from such sale as
described in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(v) The Company has filed in a timely manner each document or
report required to be filed by it pursuant to the Exchange Act and the rules
and regulations thereunder; each such document or report at the time it was
filed conformed in all material respects to the requirements of the Exchange
Act and the rules and regulations thereunder; and none or such documents or
reports contained an untrue statement of any material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(w) The Company has complied with all provisions of Section
517.075 of the Florida Securities and Investor Protection Act, and all
regulations promulgated thereunder, relating to issuers doing business with
Cuba.
8. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) Such Selling Stockholder now has, and such Selling
Shareholder on the Closing Date and any Option Closing Date will have, valid
and marketable title to the Shares to be sold by such Selling Stockholder, free
and clear of any lien, claim, security interest or other encumbrance,
including, without limitation, any applicable restriction on transfer.
(b) Such Selling Stockholder now has, and on the Closing Date
and any Option Closing Date will have, full legal right, power and
authorization, and any approval required by applicable law (except as may be
required under the Act, the Exchange Act or the rules and regulations of the
National Association of Securities Dealers, Inc. ("NASD")), to sell, assign
transfer and deliver such Shares in the manner provided in this Agreement, and
upon delivery of and payment for such Shares hereunder, the several
Underwriters will acquire such Shares free and clear of any lien, claim,
security interest, or other encumbrance.
(c) This Agreement and the Custody Agreement have been duly
authorized, executed and delivered by or on behalf of such Selling Stockholder
(other than Prudential in the case of the
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Custody Agreement) and are the valid and binding agreements of such Selling
Stockholder enforceable against such Selling Stockholder in accordance with
their terms.
(d) Neither the execution and delivery of this Agreement or the
Custody Agreement by or on behalf of such Selling Stockholder nor the
consummation of the transactions herein or therein contemplated by or on behalf
of such Selling Stockholder requires any consent, approval, authorization or
order of, or filing or registration with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except
such as may be required under the Act or such as may be required under state
securities or Blue Sky laws governing the purchase and distribution of the
Shares) or conflicts or will conflict with or constitutes or will constitute a
breach of, or default under, or violates or will violate, any agreement,
indenture or other instrument to which such Selling Stockholder is a party or
by which such Selling Stockholder is or may be bound or to which any of such
Selling Stockholder's property or assets is subject, or any statute, law, rule,
regulation, ruling, judgment, injunction, order or decree applicable to such
Selling Stockholder or to any property or assets of such Selling Stockholder.
(e) The Registration Statement and the Prospectus, insofar as
they relate to such Selling Stockholder, do not and will not contain an 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.
(f) Such Selling Stockholder does not have any actual knowledge
or any reason to believe that the Registration Statement or the Prospectus (or
any amendment or supplement thereto) contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(g) The representations and warranties of such Selling
Stockholder (other than Prudential) in the Custody Agreement are, and on the
Closing Date and any Option Closing Date will be, true and correct.
(h) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares, except for the lock-up
arrangements described in the Prospectus.
9. Indemnification and Contribution. (a) The Company and
Prudential, jointly and severally, agree to indemnify and hold harmless each of
you and each other Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20(a) the
Exchange Act from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation) arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Prepricing Prospectus or in the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement
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or omission or alleged untrue statement or omission which has been made therein
or omitted therefrom in reliance upon and in conformity with the information
relating to such Underwriter furnished in writing to the Company by or on
behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Prepricing Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in such
Prepricing Prospectus was corrected in the Prospectus, provided that the
Company has delivered the Prospectus to the several Underwriters in requisite
quantity on a timely basis to permit such delivery or sending. The foregoing
indemnity agreement shall be in addition to any liability which the Company or
Prudential may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company or any Selling Stockholder, such
Underwriter or such controlling person shall promptly notify the parties
against whom indemnification is being sought (the "indemnifying parties"), and
such indemnifying parties shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. Such Underwriter
or any such controlling person shall have the right to employ separate counsel
in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless (i) the indemnifying parties
have agreed in writing to pay such fees and expenses, (ii) the indemnifying
parties have failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
indemnifying parties and such Underwriter or such controlling person shall have
been advised by its counsel that representation of such indemnified party and
any indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying
party shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Underwriter or such controlling person). It is
understood, however, that the indemnifying parties shall, in connection with
any one such action, suit or proceeding or separate but substantially similar
or related actions, suits or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of only one separate firm of attorneys (in addition to any
local counsel) at any time for all such Underwriters and controlling persons
not having actual or potential differing interests with you or among
themselves, which firm shall be designated in writing by ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., and
that all such fees and expenses shall be reimbursed as they are incurred. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify
and hold harmless any Underwriter, to the extent provided in the
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preceding paragraph, and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
(c) Each Selling Stockholder (other than Prudential) agrees,
severally and not jointly, to indemnify and hold harmless each of you and each
other Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, the
Company, its directors, its officers who sign the Registration Statement, and
any person who controls the Company within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act to the same extent as the foregoing
indemnity from the Company and Prudential to each Underwriter, but only with
respect to the information furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement, the Prospectus or
any Prepricing Prospectus, or any amendment or supplement thereto. The
aggregate liability of each Selling Stockholder (other than Prudential) under
this Agreement, including, but not limited to, such Selling Stockholder's
agreement to indemnify contained in this Section 9, shall not exceed the
proceeds received by such Selling Stockholder (other than Prudential) from the
sale of the Shares sold by it pursuant to this Agreement, minus any
underwriting discounts or commissions paid by such Selling Stockholder (other
than Prudential). Solely for the purpose of identifying the statements in the
Registration Statement that are attributed to the respective Selling
Stockholders (other than Prudential) and without affecting the respective
Selling Stockholder's indemnification obligations for omissions and alleged
omissions in the Registration Statement relating to information that should
have been furnished by the respective Selling Stockholders, the Underwriters
and the Company acknowledge that (i) the name, address (if applicable), number
of Shares beneficially owned before and after the offering and number of Shares
to be sold in the offering listed in the table under the caption "Principal and
Selling Stockholders" in the Prospectus (as such information relates to each
Selling Stockholder) constitute the only information furnished in writing by or
on behalf of such Selling Stockholder (other than Prudential) expressly for use
in the Registration Statement as originally filed or in any amendment thereof,
any related preliminary prospectus or the Prospectus or in any amendment
thereof or supplement thereto. If any action, suit or proceeding shall be
brought against any Underwriter, any such controlling person of any
Underwriter, the Company, any of its directors, any such officer, or any such
controlling person of the Company, based on the Registration Statement, the
Prospectus or any Prepricing Prospectus or any amendment or supplement thereto,
and in respect of which indemnity may be sought against any Selling Stockholder
pursuant to this paragraph (c), such Selling Stockholder shall have the rights
and duties given to the Company by paragraph (b) above (except that if the
Company shall have assumed the defense thereof such Selling Stockholder shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Selling Stockholder's expense), and each Underwriter, each
such controlling person of any Underwriter, the Company, its directors, any
such officer, and any such controlling person of the Company shall have the
rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which any
Selling Stockholder may otherwise have.
(d) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement, each Selling Stockholder,
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and any person who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Selling Stockholders to each Underwriter,
but only with respect to information relating to such Underwriter furnished in
writing by or on behalf of such Underwriter through you expressly for use in
the Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto. If any action, suit or proceeding shall be
brought against the Company, any of its directors, any such officer, any
Selling Stockholder, or any such controlling person based on the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Underwriter pursuant to this paragraph (c), such Underwriter shall have the
rights and duties given to the Company by paragraph (b) above (except that if
the Company shall have assumed the defense thereof such Underwriter shall not
be required to do so, but may employ separate counsel therein and participate
in the defense thereof, but the fees and expenses of such counsel shall be at
such Underwriter's expense), and the Company, its directors, any such officer,
the Selling Stockholder, and any such controlling person shall have the rights
and duties given to the Underwriters by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which any Underwriter
may otherwise have.
(e) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a), (c) or (d) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) 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, 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, the Selling Stockholders and the Underwriters in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Stockholders and the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering (net of underwriting
discounts and commissions but 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; provided that, in the event that the
Underwriters shall have purchased any Additional Shares hereunder, any
determination of the relative benefits received by the Company, the Selling
Stockholders or the Underwriters from the offering of the Shares shall include
the net proceeds (net of underwriting discounts or commissions but before
deducting expenses) received by the Company and the Selling Stockholders, and
the underwriting discounts and commissions received by the Underwriters, from
the sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of the
Prospectus. The relative fault of the Company, the Selling Stockholders and
the Underwriters 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
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Company, the Selling Stockholders or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(f) The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by a pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (e) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses referred
to in paragraph (e) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price of the Shares underwritten by it and
distributed 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 to contribute
pursuant to this Section 9 are several in proportion to the respective numbers
of Firm Shares set forth opposite their names in Schedule II hereto (or such
numbers of Firm Shares increased as set forth in Section 12 hereof) and not
joint.
(g) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding 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 claims that are the subject matter
of such action, suit or proceeding.
(h) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Stockholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or the Selling Stockholders or any person controlling the Company or any
Selling Stockholder, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to (i) any
Underwriter or any person controlling any Underwriter, (ii) the Company, its
directors or officers, or any person controlling the Company, and (iii) an
Selling Stockholder or any person controlling any Selling Stockholder, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 9.
10. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
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(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the registration statement or such post-effective amendment shall
have become effective not later than 5:30 P.M., New York City time, on the date
hereof, or at such later date and time as shall be consented to in writing by
you, and all filings, if any, required by Rules 424 and 430A under the Act
shall have been timely made; no stop order suspending the effectiveness of the
registration statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the Commission
for additional information (to be included in the registration statement or the
prospectus or otherwise) shall have been complied with to your reasonable
satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Prospectus, which in your reasonable
opinion, as Representatives of the several Underwriters, would materially,
adversely affect the market for the Shares, or (ii) any event or development
relating to or involving the Company or any executive officer or director of
the Company or any Selling Stockholder which makes any statement made in the
Prospectus untrue or which, in the opinion of the Company and its counsel or
the Underwriters and their counsel, requires the making of any addition to or
change in the Prospectus in order to state a material fact required by the Act
or any other law to be stated therein or necessary in order to make the
statements therein not misleading, if amending or supplementing the Prospectus
to reflect such event or development would, in your opinion, as Representatives
of the several Underwriters, materially adversely affect the market for the
Shares.
(c) You shall have received on the Closing Date, an opinion of
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) The Company is a corporation duly
incorporated and validly existing in good standing under the laws of the State
of Delaware with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), and is
duly registered and qualified to conduct its business and is in good standing
in each jurisdiction listed on Exhibit A to such opinion;
(ii) Based on our review of the stock records of
the Company, the authorized and outstanding capital stock of the Company is as
set forth under the caption "Capitalization" in the Prospectus; and the
authorized capital stock of the Company conforms in all material respects as to
legal matters to the description thereof contained in the Prospectus under the
caption "Description of Capital Stock";
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(iii) All the shares of common stock of the
Company outstanding prior to the issuance of the Shares to be issued and sold
by the Company hereunder, have been duly authorized and validly issued, and,
based upon a certificate from an executive officer of the Company, are fully
paid and nonassessable;
(iv) The Shares to be issued and sold to the
Underwriters by the Company hereunder have been duly authorized and, when
issued and delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and nonassessable and
free of any preemptive rights;
(v) The form of certificates for the Shares
conforms to the requirements of the Delaware General Corporation Law ("DGCL");
(vi) The Registration Statement and all
post-effective amendments, if any, have become effective under the Act and, to
the best knowledge of such counsel after reasonable inquiry, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose are pending before or contemplated by the
Commission; and any required filing of the Prospectus pursuant to Rule 424(b)
has been made in accordance with Rule 424(b);
(vii) The Company has full corporate power and
authority to enter into this Agreement and to issue, sell and deliver the
Shares to be sold by it to the Underwriters as provided herein, and this
Agreement has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement of rights to
indemnity and contribution hereunder may be limited by Federal or state
securities laws or principles of public policy and subject to the qualification
that the enforceability of the Company's obligations hereunder may be limited
by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium,
and other laws relating to or affecting creditors' rights generally and subject
to general equitable principles;
(viii) Neither the Company nor Amercord is in
violation of its respective certificate or articles of incorporation or bylaws;
(ix) Neither the offer, sale or delivery of the
Shares, the execution, delivery or performance of this Agreement, compliance by
the Company with the provisions hereof, nor consummation by the Company of the
transactions contemplated hereby conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, the certificate or articles
of incorporation or bylaws of the Company or any agreement, indenture, lease or
other instrument that is an exhibit to the Registration Statement (including
any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note
agreement, capital lease or other evidence of indebtedness identified to us as
material to the Company by the Company), or, to the best of our knowledge,
breach or otherwise violate any existing obligation of the Company under any
court or administrative order, judgment or decree, or (iii) violate any
applicable provisions of the DGCL or of the federal laws of the United States
(assuming compliance with all applicable state securities and Blue Sky laws);
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(x) No consent, approval, authorization or other
order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official is
required on the part of the Company (except as have been obtained under the Act
and the Exchange Act or such as may be required under state securities or Blue
Sky laws governing the purchase and distribution of the Shares or as may be
required by the rules and regulations of the NASD) for the issuance and sale of
the Shares to the Underwriters as contemplated by this Agreement;
(xi) The Registration Statement and the
Prospectus and any supplements or amendments thereto (except for the financial
statements and the notes thereto and the schedules and other financial and
statistical data included therein, as to which such counsel need not express
any opinion) comply as to form in all material respects with the requirements
of the Act;
(xii) To the actual knowledge of such counsel, (i)
other than as described or contemplated in the Prospectus (or any supplement
thereto), there are no legal or governmental proceedings pending or threatened
against the Company or Amercord, or to which the Company or Amercord, or any of
their property, is subject, which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement thereto)
and (ii) there are no agreements, contracts, indentures, leases or other
instruments, that are required to be described in the Registration Statement or
the Prospectus (or any amendment or supplement thereto) or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required, as the case may be;
(xiii) Upon delivery of the Shares pursuant to this
Agreement and payment therefor as contemplated herein the Underwriters who have
purchased such Shares in good faith and without notice of any adverse claim
will acquire good and marketable title to the Shares free and clear of any
lien, claim, security interest, or other encumbrance, restriction on transfer
or other defect in title; and
In addition to the matters set forth above,
such opinion shall also include a statement to the effect that although counsel
has not independently verified and is not passing upon, and does not assume any
responsibility for, the accuracy or completeness of the information contained
in the Registration Statement or the Prospectus, such counsel has participated
in the preparation of the Registration Statement and the Prospectus and no
facts have come to the attention of such counsel that have caused it to believe
that the Registration Statement at the time the Registration Statement became
effective, 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 or that the Prospectus, as of the Closing
Date or the Option Closing Date, as the case may be, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such counsel
need express no view with respect to the financial statements and the notes
thereto and the schedules and other financial and statistical data included in
the Registration Statement or the Prospectus).
-21-
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In rendering their opinion as aforesaid, counsel may rely (i) as
to matters of fact, to the extent such counsel deems appropriate, on
certificates of officers and other representatives of the Company and
certificates of public officials, and (ii) upon an opinion or opinions, each
dated the Closing Date, of other counsel retained by them or the Company as to
laws of any jurisdiction other than the United States or the State of New York,
provided that (a) each such local counsel is acceptable to the Representatives,
and (b) such reliance is expressly authorized by each opinion so relied upon
and a copy of each such opinion is delivered to the Representatives and is, in
form and substance satisfactory to them and their counsel.
(d) You shall have received on the Closing Date, an
opinion of Debevoise & ▇▇▇▇▇▇▇▇, counsel for Prudential, dated the Closing
Date, and addressed to you, as Representatives of the several Underwriters, to
the effect that:
(i) This Agreement has been duly authorized,
executed and delivered by Prudential and, assuming the due authorization,
execution and delivery by the other parties thereto, is a valid and binding
agreement, enforceable against Prudential in accordance with its terms except
as enforcement of rights to indemnity and contribution thereunder may be
limited by federal or state securities laws or principles of public policy and
except as the enforceability of Prudential's obligations thereunder may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights generally
and by general equitable principles.
(ii) Prudential has full legal right, power and
authority, and has all requisite approvals, and has made all requisite filings,
required by law, regulation or order to (A) execute and deliver this Agreement,
and to consummate the transactions contemplated hereby and (B) sell, assign and
transfer ownership of the Shares to be sold by Prudential pursuant to this
Agreement except for (1) such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion), (2) such as
may be required under the Act, or by the NASD, and (3) requisite approvals or
filings that, if not obtained or made by Prudential, would not affect the
validity of this Agreement or the obligations of Prudential hereunder.
(iii) Assuming that the Shares were validly
authorized and issued by the Company and assuming that such Underwriters and
their designees acquire their interests in the Shares in good faith and without
notice of any adverse claim, upon the delivery of and payment for such Shares
as herein contemplated, each of the several Underwriters (or their designees)
will receive all of Prudential's rights to such Shares, free and clear of any
adverse claim (within the meaning of Section 8-302 of the Uniform Commercial
code as currently in effect in the State of New York), lien in favor of the
Company, restriction on transfer imposed by the Company, or any shareholders'
agreement or voting trust which such counsel has actual knowledge.
In rendering their opinion as aforesaid, counsel may rely (i) as
to matters of fact, to the extent such counsel deems appropriate, on
certificates of officers and other representatives of the Company and
certificates of public officials, and (ii) upon an opinion or opinions, each
dated the
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Closing Date, of other counsel retained by them or Prudential as to laws of any
jurisdiction other than the United States or the State of New York, provided
that (a) each such local counsel is acceptable to the Representatives, and (b)
such reliance is expressly authorized by each opinion so relied upon and a copy
of each such opinion is delivered to the Representatives and is, in form and
substance satisfactory to them and their counsel.
(e) You shall have received on the Closing Date, an
opinion of ______________________, counsel for Principal Financial Securities
Inc. ("Principal") dated the Closing Date, and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) This Agreement and the Custody Agreement have
been duly authorized, executed and delivered by Principal and, assuming the due
authorization, execution and delivery by the other parties thereto, are valid
and binding agreements, enforceable against Principal in accordance with their
terms except as enforcement of rights to indemnity and contribution thereunder
may be limited by federal or state securities laws or principles of public
policy and except as the enforceability of Principal's obligations thereunder
may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting creditors'
rights generally and by general equitable principles.
(ii) Principal has full legal right, power and
authority, and has all requisite approvals, and has made all requisite filings,
required by law, regulation or order to (A) execute and deliver this Agreement,
and to consummate the transactions contemplated hereby and (B) sell, assign and
transfer ownership of the Shares to be sold by Principal pursuant to this
Agreement except for (1) such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion), (2) such as
may be required under the Act, or by the NASD, and (3) requisite approvals or
filings that, if not obtained or made by Principal, would not affect the
validity of this Agreement or the obligations of Principal hereunder.
(iii) Assuming that the Shares were validly
authorized and issued by the Company and assuming that such Underwriters and
their designees acquire their interests in the Shares in good faith and without
notice of any adverse claim, upon the delivery of and payment for such Shares
as herein contemplated, each of the several Underwriters (or their designees)
will receive all of Principal's rights to such Shares, free and clear of any
adverse claim (within the meaning of Section 8-302 of the Uniform Commercial
code as currently in effect in the State of New York), lien in favor of the
Company, restriction on transfer imposed by the Company, or any shareholders'
agreement or voting trust which such counsel has actual knowledge.
In rendering their opinion as aforesaid, counsel may rely (i) as
to matters of fact, to the extent such counsel deems appropriate, on
certificates of officers and other representatives of the Company and
certificates of public officials, and (ii) upon an opinion or opinions, each
dated the Closing Date, of other counsel retained by them or Principal as to
laws of any jurisdiction other than the United States or the State of New York,
provided that (a) each such local counsel is acceptable to the Representatives,
and (b) such reliance is expressly authorized by each opinion so
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relied upon and a copy of each such opinion is delivered to the Representatives
and is, in form and substance satisfactory to them and their counsel.
(f) You shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters, with
respect to the matters referred to in clauses (iv), (vi), (vii), (xi) and the
statement contained in the second to last sub- paragraph of the foregoing
paragraph (c) and such other related matters as you may request.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Ernst & Young LLP., independent public accountants,
substantially in the forms heretofore approved by you.
(h)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other
than in the ordinary course of business) from that set forth or contemplated in
the Registration Statement or the Prospectus (or any amendment or Supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change in the condition (financial or other), business,
prospects, properties or results of operations of the Company and Amercord;
(iv) the Company shall not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), that are
material to the Company, other than those reflected in the Registration
Statement or the Prospectus (or any amendment or supplement thereto); and (v)
all the representations and warranties of the Company contained in this
Agreement shall be true and correct on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date, and you shall
have received a certificate, dated the Closing Date and signed by the chief
executive officer and the chief financial officer of the Company (or such other
officers as are acceptable to you), to the effect set forth in this Section
10(h) and in Section 10(i) hereof.
(i) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(j) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received (i) a certificate, dated the Closing
Date and signed by or on behalf of the Selling Stockholders (other than
Prudential) to the effect set forth in this Section 10(j) and in Section 10(k)
hereof, and (ii) a certificate, dated the Closing Date and executed by a duly
authorized representative of Prudential on behalf of Prudential to the effect
set forth in this Section 10(j) and in Section 10(k) hereof.
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(k) The Selling Stockholders shall not have failed at or
prior to the Closing Date to have performed or complied with any of their
agreements and obligations herein contained and required to be performed or
complied with by them hereunder at or prior to the Closing Date.
(l) The Shares shall have been listed or approved for
quotation upon notice of issuance on the NASDAQ National Market.
(m) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to you such further certificates and
documents as you shall have reasonably requested.
(n) Prudential shall have delivered to the Company at
least one full business day prior to the Closing a certificate or certificates
representing at least 1,000,000 shares of Class B Common Stock, for conversion
into shares of Common Stock, together with valid, duly executed blank stock
powers, with signatures appropriately guaranteed, for such shares, and written
notice setting forth the information specified by Article IV, Section 4.2.B.6
of the Company's Restated Certificate of Incorporation.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel.
Any certificate signed by any officer of the Company or any
Attorney-in-Fact or any Selling Stockholder and delivered to you pursuant to
this Agreement, as Representatives of the Underwriters, or to counsel for the
Underwriters, shall be deemed a representation and warranty by the Company, the
Selling Stockholders or the particular Selling Stockholder, as the case may be,
to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 10, except
that, if any Option Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in paragraphs (c) through (k)
shall be dated the Option Closing Date in question and the opinions called for
by paragraphs (c), (d), (e) and (f) shall be revised to reflect the sale of
Additional Shares.
11. Expenses. The Company agrees to pay the following costs
and expenses and all other costs and expenses incident to the performance by
them of their obligations hereunder: (i) the preparation, printing or
reproduction, and filing with the Commission of the registration statement
(including financial statements and exhibits thereto), each Prepricing
Prospectus, the Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of the
registration statement, each Prepricing Prospectus, the Prospectus, and all
amendments or supplements to any of them as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares,
including any stamp taxes in connection with the original issuance and
-25-
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sale of the Shares; (iv) the printing (or reproduction) and delivery of this
Agreement, the Blue Sky Memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of the
Shares; (v) the registration of the Shares under the Exchange Act and the
listing of the Shares on the NASDAQ National Market; (vi) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states as provided in Section 5(g) hereof (including the
reasonable fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and delivery of the Blue
Sky Memorandum and such registration and qualification); (vii) the filing fees
and the reasonable fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc.; (viii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Shares; and (ix) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
12. Effective Date of Agreement. This Agreement shall
become effective: (i) upon the execution and delivery hereof by the parties
hereto; or (ii) if, at the time this Agreement is executed and delivered, it is
necessary for the registration statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time
as this Agreement shall have become effective, it may be terminated by the
Company, by notifying you, or by you, as Representatives of the several
Underwriters, by notifying the Company and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse
to purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the Underwriters
are obligated to purchase on the Closing Date, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm
Shares set forth opposite its name in Schedule II hereto bears to the aggregate
number of Firm Shares set forth opposite the names of all non-defaulting
Underwriters or in such other proportion as you may specify in accordance with
Section 20 of the Master Agreement Among Underwriters of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., to
purchase the Shares which such defaulting Underwriter or Underwriters are
obligated, but fail or refuse, to purchase. If any one or more of the
Underwriters shall fail or refuse to purchase Shares which it or they are
obligated to purchase on the Closing Date and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares which the Underwriters are obligated to purchase on
the Closing Date and arrangements satisfactory to you and the Company for the
purchase of such Shares by one or more non- defaulting Underwriters or other
party or parties approved by you and the Company are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action
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taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule II hereto who,
with your approval and the approval of the Company, purchases Shares which a
defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 12 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject
to termination in your absolute discretion, without liability on the part of
any Underwriter to the Company or any Selling Stockholder, by notice to the
Company, if prior to the Closing Date or any Option Closing Date (if different
from the Closing Date and then only as to the Additional Shares), as the case
may be, (i) trading in securities generally on the New York Stock Exchange,
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York or Texas shall have been declared by either federal or
state authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other international or domestic calamity, crisis
or change in political, financial or economic conditions, the effect of which
on the financial markets of the United States is such as to make it, in your
judgment, impracticable or inadvisable to commence or continue the offering of
the Shares at the offering price to the public set forth on the cover page of
the Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
14. Information Furnished by the Underwriters. The statements
set forth in the last paragraph on the cover page, the stabilization legend on
the inside cover page, and the statements in the first paragraph, third
paragraph, fourth paragraph, sixth paragraph (except the first and second
sentences thereof) and the seventh paragraph under the caption "Underwriting"
in any Prepricing Prospectus and in the Prospectus, constitute the only
information furnished by or on behalf of the Underwriters through you as such
information is referred to in Sections 7(b) and 9 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5,
12 and 13 hereof, notice given pursuant to any provision of this Agreement
shall be in writing and shall be delivered (i) if to the Company, at the office
of the Company at Suite 4100 East, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, Treasurer and Secretary; or (ii)
if to the Selling Stockholders, at the respective address listed for each
Selling Shareholder or its Attorney-in-Fact on the signature page to the
applicable Custody Agreement, or (iii) if to you, as Representatives of the
several Underwriters, care of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, the Selling
Stockholders and the other controlling persons referred to in Section 9 hereof
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns"
as used in this
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Agreement shall include a purchaser from any Underwriter of any of the Shares
in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Selling Stockholders and the several
Underwriters.
Very truly yours,
ASSOCIATED MATERIALS INCORPORATED
By
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President, Treasurer and Secretary
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
C. ▇▇▇▇ ▇▇▇▇▇▇▇*
----------------------
C. ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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29
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
PRINCIPAL FINANCIAL SECURITIES, INC.*
-------------------------------------
Principal Financial Securities, Inc.
[▇▇▇▇▇▇▇ W][▇▇▇▇▇▇ ▇.] Winspear, by signing his name hereto, does
sign, execute and deliver this Agreement on behalf of each of the above-named
Selling Stockholders pursuant to powers of attorney executed by each such
Selling Stockholder.
* --------------------------------------------------
[▇▇▇▇▇▇▇ ▇.][▇▇▇▇▇▇ ▇.] Winspear, Attorney-in-Fact
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
As Representatives of the Several Underwriters
By ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By
-------------------------
Managing Director
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SCHEDULE I
ASSOCIATED MATERIALS INCORPORATED
Part A - Firm Shares
Number of
Selling Stockholders Firm Shares
-------------------- -----------
The Prudential Insurance Company of America............................... 1,000,000
Principal Financial Securities, Inc....................................... 92,800
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇......................................................... 12,800
C. ▇▇▇▇ ▇▇▇▇▇▇▇........................................................... 80,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.......................................................... 60,800
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.......................................................... 60,800
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇........................................................ 60,800
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇....................................................... 60,800
-----------
Total.................................................... 1,428,800
-----------
Part B - Additional Shares
Number of
Selling Stockholders Additional Shares
-------------------- -----------------
The Prudential Insurance Company of America............................... 150,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇........................................................ 60,800
------------
Total.................................................... 210,800
------------
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SCHEDULE II
ASSOCIATED MATERIALS INCORPORATED
Underwriter Firm Shares
----------- -----------
▇▇▇▇▇ ▇▇▇▇▇▇ Inc....................................
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated..........................
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