1
EXHIBIT 10d
UNDERWRITING AGREEMENT
MICROS Systems, Inc.
Common Stock
(Par Value $.025 Per Share)
Dated the date set forth on
the signature page hereto
To the Underwriter or Underwriters
listed in Schedule I hereto
Ladies and Gentlemen:
Westinghouse Electric Corporation, a Pennsylvania corporation
("Westinghouse"), or Westinghouse Holdings Corporation, a Delaware corporation
and a wholly-owned subsidiary of Westinghouse ("Transferee") (Westinghouse or,
if the Transferee has executed the signature page hereto, the Transferee being
hereinafter referred to as the "Selling Stockholder"), proposes to sell to the
underwriter or underwriters listed in Schedule I hereto (the "Underwriters"),
for whom the representative or representatives designated on Schedule I hereto,
if any, are acting as representatives (in such capacity, the
"Representatives"), and the Underwriters propose to purchase from the Selling
Stockholder, the number of shares (the "Underwritten Securities") of common
stock, par value $.025 per share (the "Common Stock"), of MICROS Systems, Inc.,
a Maryland corporation (the "Company"), set forth in Schedule I hereto as the
Total Number of Underwritten Securities. In addition, if a number of shares of
Common Stock is set forth on Schedule I hereto as the Total Number of Option
Securities, then, for the sole purpose of covering over-allotments in
connection with the sale of the Underwritten Securities, the Selling
Stockholder proposes to sell to the Underwriters, at the option of the
Underwriters, up to such number of shares of Common Stock (the "Option
Securities"). The Underwritten Securities and any Option Securities purchased
by the Underwriters are herein referred to as the "Securities." If the
Securities have been transferred to Transferee prior to the execution of this
Agreement, then Transferee shall execute this Agreement in addition
2
-2-
to Westinghouse. If no Representatives are designated as such on Schedule I
hereto, then the term "Representatives" as used herein shall mean the
Underwriters.
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 "Securities Act"), a registration
statement on Form S-3 (File No. 33-88768), including a prospectus, relating to
the Securities, which has become effective. The registration statement as
amended at the time when it became effective, or, if post-effective amendments
are filed with respect thereto, as amended by such post-effective amendments at
the time of their effectiveness, is hereinafter referred to as the
"Registration Statement"; the prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "Basic Prospectus";
the supplement thereto prepared by the Company relating to the Securities and
the plan of distribution thereof, to be filed pursuant to Rule 424(b) under the
Securities Act, is hereinafter referred to as the "Prospectus Supplement"; and
the Basic Prospectus, as supplemented by the Prospectus Supplement, in the form
first used to confirm sales of Securities is hereinafter referred to as the
"Prospectus." The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Securities, together with the Basic
Prospectus. Any reference in this Agreement to the Registration Statement, the
Basic Prospectus, any preliminary prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act,
as of the effective date of the Registration Statement, or the date of the
Basic Prospectus, such preliminary prospectus or the Prospectus Supplement, as
the case may be, and any reference to "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any preliminary
prospectus, the Prospectus Supplement or the Prospectus shall be deemed to
refer to and include any documents filed after such date under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") that are deemed to be
incorporated by reference therein.
1. Agreements to Sell and Purchase. The Selling Stockholder hereby
agrees to sell the Underwritten Securities to the several Underwriters as
hereinafter provided, and each
3
-3-
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to
purchase, severally and not jointly, from the Selling Stockholder the
respective number of shares of Common Stock constituting Underwritten
Securities set forth opposite such Underwriter's name in Schedule I hereto (or
such number of Underwritten Securities increased as set forth in Section 13
hereof, subject to such adjustments to eliminate any fractional interests as
the Representatives in their sole discretion shall make) at the price per share
of Common Stock set forth on Schedule I hereto (the "Purchase Price").
In addition, if a Total Number of Option Securities is set forth on
Schedule I hereto, the Selling Stockholder agrees to sell the Option Securities
to the several Underwriters as hereinafter provided, and the Underwriters,
upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, shall have the option to
purchase, severally and not jointly, from the Selling Stockholder up to such
number of shares of Common Stock at the Purchase Price, for the sole purpose of
covering over-allotments (if any) in connection with the sale of the
Underwritten Securities by the several Underwriters.
If any Option Securities are to be purchased, the number of Option
Securities to be purchased by each Underwriter shall be the number of Option
Securities which bears the same ratio to the aggregate number of Option
Securities being purchased as the number of Underwritten Securities set forth
opposite the name of such Underwriter in Schedule I hereto bears to the
aggregate number of Underwritten Securities, subject, however, to such
adjustments to eliminate any fractional interests as the Representatives in
their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option
Securities at any time (but not more than once) on or before the last day of
the period indicated on Schedule I hereto as the period for exercise of such
option, by written notice from the Representatives to the Company and the
Selling Stockholder. Such notice shall set forth the aggregate number of
Option Securities as to which the option is being exercised and the date and
time when such Option Securities are to be delivered and paid for, which may be
the same date and time as the Closing Date (as hereinafter defined) but shall
not be earlier than the Closing Date or later than the tenth full Business Day
(as hereinafter defined) after the date of such notice (unless such date and
time are postponed in accordance with the
4
-4-
provisions of Section 13 hereof). Any such notice shall be given at least two
Business Days prior to the date and time of delivery specified therein.
2. Terms of Public Offering. Each of the Company, Westinghouse
and, if Transferee is a party hereto, Transferee understands that the
Underwriters intend (i) to make a public offering of the Securities as soon as
the Representatives deem advisable after this Agreement has become effective and
the Prospectus Supplement has been filed and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus.
3. Delivery of the Securities and Payment Therefor. Payment for
the Securities shall be made to the Selling Stockholder by certified or official
bank check or checks payable in New York Clearing House or other next-day funds
at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
at 10:00 A.M., New York City time, (i) in the case of the Underwritten
Securities, on the date set forth on Schedule I hereto as the Closing Date, or
at such other time on the same or such other date, not later than the fifth
Business Day thereafter, as the Underwriters, the Selling Stockholder and the
Company may agree upon in writing, or (ii) in the case of the Option
Securities, on the date and time specified by the Representatives in the
written notice of the Underwriters' election to purchase such Option
Securities. The time and date of such payment for the Underwritten Securities
are referred to herein as the "Closing Date," and the time and date of such
payment for the Option Securities, if other than the Closing Date, are herein
referred to as the "Additional Closing Date." As used herein, the term
"Business Day" means any day other than a day on which banks are permitted or
required to be closed in New York City.
Payment for the Securities to be purchased on the Closing Date or
the Additional Closing Date, as the case may be, shall be made against
delivery to the Underwriters of the certificates for the Securities to be
purchased on such date, in the case of certificates representing the
Securities currently registered in the name of Westinghouse or Transferee,
endorsed in blank or with blank stock powers attached, and, in the case of the
replacement certificates referred to below, registered in such names and in
such denominations as the Underwriters shall request in writing not later than
two full Business Days prior to the Closing Date or the Additional Closing
Date, as the case may be. The certificates for the
5
-5-
Securities will be made available by the Selling Stockholder for inspection
and packaging by the Underwriters in New York, New York not later than
1:00 P.M., New York City time, on the Business Day prior to the Closing Date
or the Additional Closing Date, as the case may be. For purposes of expediting
the foregoing matters, the Company agrees to make available certificates
representing shares of Common Stock in replacement of the certificate(s)
representing the Securities currently registered in the name of Westinghouse
or Transferee to be delivered by or on behalf of the Selling Stockholder on
the Closing Date and the Additional Closing Date, as the case may be.
The Selling Stockholder will pay all applicable transfer taxes, if
any, involved in the transfer to the Underwriters of the Securities.
4. Representations and Warranties of the Company. The Company
hereby represents and warrants to each of the Underwriters, to Westinghouse
and, if Transferee is a party hereto, to Transferee that:
(a) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement, as
originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act;
(b) the Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by
the Commission; the Registration Statement and the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto to the Underwriters) comply, or will comply, as the
case may be, in all material respects with the Securities Act; the
Registration Statement, as of the date of the original filing thereof and
as of the applicable effective date as to the Registration Statement and
any amendment thereto, did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; and the Prospectus, as of the date of the Prospectus
Supplement, as of the date of any
6
-6-
amendment or further supplement thereto and as amended or supplemented
at the Closing Date and the Additional Closing Date, if applicable, did
not and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the foregoing
representations and warranties shall not apply to statements or omissions
in the Registration Statement or the Prospectus made in reliance upon and
in conformity with (i) information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use therein or (ii) information relating to Westinghouse
and, if Transferee is a party hereto, Transferee furnished to the Company
in writing by Westinghouse and, if Transferee is a party hereto,
Transferee expressly for use therein. For purposes of this paragraph
(b), the only written information furnished by Westinghouse and, if
Transferee is a party hereto, Transferee to the Company expressly for use
in the Registration Statement and the Prospectus is the information in
the second sentence of the first paragraph and the first sentence of the
second paragraph under the caption "Management Compensation and Changes"
and the first paragraph and the last sentence of the second paragraph
under the caption "Principal and Selling Stockholder" in the Basic
Prospectus (it being understood and agreed that the reference herein to
the last sentence of the second paragraph should not be deemed to be an
indication of the ability of Westinghouse to establish new service
arrangements or its ability to minimize any incremental costs thereof)
and the information referred to on Schedule I hereto under the heading
"Information Provided by Westinghouse and Transferee";
(c) the Company and the offering of the Securities contemplated
hereby meet all conditions and requirements for registration on a Form
S-3 registration statement under the Securities Act;
(d) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act; none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the
7
-7-
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed by the Company with the
Commission, will conform in all material respects to the requirements of
the Exchange Act and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(e) Price Waterhouse LLP, who are reporting upon the audited
consolidated financial statements of the Company and its subsidiaries
and the related schedules included or incorporated by reference in the
Registration Statement, are independent public accountants as required by
the Securities Act;
(f) the financial statements and related notes thereto included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries taken as a whole as of the dates indicated
and the consolidated results of their operations and changes in their
consolidated shareholders' equity and cash flows for the periods
specified; the financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the information required to be included therein; the financial statements
of the Company (including the related notes and schedules) included or
incorporated by reference in the Registration Statement and the
Prospectus have been prepared in accordance with the applicable
accounting requirements of Regulation S-X under the Securities Act and
the Exchange Act ("Regulation S-X") and with generally accepted
accounting principles in the United States of America ("GAAP") applied on
a consistent basis throughout the periods included (subject in the case
of interim statements to normal year end adjustments), except as stated
therein or in the reports related thereto;
(g) the statistical and market-related data included or
incorporated by reference in the Registration Statement and the
Prospectus are based on or derived from sources which are believed by
the Company to be reliable and accurate;
8
-8-
(h) there are no contracts or other documents that are required
to be described or referred to in the Registration Statement or the
Prospectus, or to be filed as exhibits to the Registration Statement,
that are not described, referred to or filed as required;
(i) since the date of the latest consolidated financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus, except as disclosed or contemplated therein, there has
not been (i) any change in the Company's issued capital stock or options
except pursuant to the terms of the instruments governing the same or
pursuant to the exercise of such options, or (ii) any material adverse
change in the general affairs, business, prospects, management,
operations or condition, financial or otherwise, of the Company and its
subsidiaries (the "Subsidiaries," the names of which are listed on Annex
A hereto) taken as a whole (a "Material Adverse Change") or any
development involving an event or state of facts which could reasonably
be expected to result in a Material Adverse Change (a "Prospective
Material Adverse Change");
(j) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as disclosed or
contemplated therein, (i) there have been no transactions entered into by
the Company or any of the Subsidiaries, whether or not in the ordinary
course of business, which are material to the Company and the
Subsidiaries taken as a whole, and (ii) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock;
(k) each of the Company and the Subsidiaries has been duly
organized under the laws of its jurisdiction of incorporation; and each
of the Company and the Subsidiaries is a validly existing corporation in
good standing under the laws of its jurisdiction of incorporation, has
full corporate power and authority to own its properties and conduct its
business and is duly qualified to do business as a foreign corporation
and is in good standing in all other jurisdictions where the ownership
of its property or the conduct of its business requires such
qualification, except where the failure so to qualify or be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the general affairs,
9
-9-
business, prospects, management, operations or condition, financial or
otherwise, of the Company and the Subsidiaries taken as a whole (a
"Material Adverse Effect");
(l) all of the issued and outstanding shares of Common Stock
(including the Securities) have been duly authorized by the Company,
are validly issued and are fully paid and nonassessable and are not
subject to any preemptive or other similar rights other than those
contained in the Company's charter as amended and in effect on the date
hereof (the "Charter"); the authorized capital stock of the Company
consists solely of the Common Stock, which Common Stock conforms as to
legal matters to the description thereof contained in the Registration
Statement and the Prospectus;
(m) this Agreement has been duly authorized, executed and
delivered by the Company;
(n) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
and the consummation by the Company of the transactions contemplated
herein, (i) have been duly authorized by all necessary corporate action
on the part of the Company, (ii) do not and will not result in any
violation of the Charter or the Company's by-laws as amended and in
effect on the date hereof (the "By-laws") and (iii) do not and will not
conflict with, or result in a breach or violation of, any of the terms
or provisions of, or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
give rise to any right to accelerate the maturity or require the
prepayment of any indebtedness or any right of termination under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any material property or assets of the Company or any Subsidiary
under, (A) any material indenture, mortgage, loan agreement, note,
lease, partnership agreement or other agreement or instrument to which
the Company or any Subsidiary is a party or by which any of them may be
bound or to which any of their properties or assets may be subject, (B)
any existing applicable law, rule or regulation (subject to obtaining
such approvals as may be required under the securities or Blue Sky laws
of the various states and other jurisdictions of the United States of
America) or (C) any judgment, order or decree of any government,
governmental instrumentality or court,
10
-10-
domestic or foreign, having jurisdiction over the Company or any
Subsidiary or any of their respective properties or assets;
(o) no authorization, approval, consent or license of, or filing
with, any government, governmental instrumentality or court, domestic
or foreign (other than as have been made and obtained and are in full
force and effect under the Securities Act or as may be required under the
securities or Blue Sky laws of the various states and other jurisdictions
of the United States of America), is required for the performance by the
Company of its obligations under this Agreement and the provisions of
Section 3-602 of the Maryland General Corporation Law are not currently
applicable to the Company;
(p) (i) the Company is not in violation of the Charter or the
By-laws nor is any Subsidiary in violation of its charter or by-laws or
other organizational documents and (ii) neither the Company nor any
Subsidiary is or with notice or lapse of time or both would be in breach
or violation of, or in default under, any obligation, agreement, covenant
or condition contained in any indenture, mortgage, loan agreement, note,
lease, partnership agreement or other agreement or instrument to which it
is a party or by which it may be bound or to which any of its properties
or assets may be subject or affected or of any permit, order, decree,
judgment, statute, rule or regulation applicable to the Company or any
Subsidiary, except for such breaches, violations or defaults that,
individually or in the aggregate, would not have a Material Adverse
Effect;
(q) except as described in the Registration Statement and the
Prospectus, there is no investigation, action, suit or proceeding
before or by any government, governmental instrumentality or court,
domestic or foreign, now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary that (i) if
determined adversely to the Company or such Subsidiary, could
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect or a material adverse effect on the consummation
of the transactions contemplated in this Agreement or (ii) is required to
be described in the Registration Statement or the Prospectus and is not
so described;
11
-11-
(r) except as set forth on Annex B hereto, the Company owns,
beneficially and of record, free and clear of any mortgage, pledge,
security interest, lien, claim or other encumbrance or restriction on
transferability or voting, directly or indirectly, the percentage of the
outstanding equity securities of each of the Subsidiaries as listed on
Annex A hereto, which constitute all of the subsidiaries of the Company;
the Subsidiaries not marked with an asterisk on Annex A hereto (other
than Fidelio Software Corporation ("Fidelio U.S.") and MSI Delaware, Inc.
("MSI")), when considered in the aggregate a single subsidiary, do not
constitute a "significant subsidiary" within the meaning of Regulation
S-X; all of the outstanding capital stock of each Subsidiary owned by the
Company has been duly authorized and validly issued and is fully paid and
nonassessable; and there are no outstanding (i) securities or obligations
convertible into or exchangeable for any shares of capital stock of the
Company or any Subsidiary, (ii) rights, warrants or options to acquire or
purchase any shares of capital stock of the Company or any Subsidiary
(except for options to purchase Common Stock outstanding under the
Company's 1991 Stock Option Plan and 1981 Stock Option Plan as disclosed
in its most recent annual proxy statement filed pursuant to Regulation
14A under the Exchange Act (the "Proxy Statement") or in the Registration
Statement and the Prospectus) or any such convertible or exchangeable
securities or obligations or (iii) obligations or understandings of the
Company or any Subsidiary to issue or sell any shares of capital stock of
the Company or any Subsidiary, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options
(except as set forth on Annex B hereto);
(s) each of the Company and the Subsidiaries has good and
marketable title to all properties and assets described in the
Registration Statement and the Prospectus as owned by it, free and clear
of all liens, charges, encumbrances or restrictions, except (i) as
described or reflected in the Registration Statement and the Prospectus
or (ii) for such liens, charges, encumbrances or restrictions which,
individually or in the aggregate, would not be material to the Company
and the Subsidiaries taken as a whole; all of the leases and subleases
material to the business of the Company and the Subsidiaries are in full
force and effect, with such exceptions as, individually or
12
-12-
in the aggregate, would not be material to the Company and the
Subsidiaries taken as a whole;
(t) each of the Company and the Subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or foreign,
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as conducted as of the date
hereof, except, in each case, where the failure to obtain licenses,
permits, certificates, consents, orders, approvals and other
authorizations, or to make all declarations and filings, would not have a
Material Adverse Effect, and neither the Company nor any Subsidiary has
received any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization, except as described in the Registration
Statement and the Prospectus and except, in each case, where such
revocation or modification would not have a Material Adverse Effect; and
each of the Company and the Subsidiaries is in compliance with all laws
and regulations relating to the conduct of its business as conducted as
of the date hereof, except where noncompliance with such laws or
regulations would not have a Material Adverse Effect;
(u) each of the Company and the Subsidiaries owns, possesses or
has the right to use the trademarks, service marks, trade names,
copyrights and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) (collectively, the "Intellectual Property") employed by it in
connection with the business conducted by it as of the date hereof,
except to the extent that the failure to own, possess or have the right
to use such Intellectual Property would not have a Material Adverse
Effect, and except as described in the Registration Statement and the
Prospectus, neither the Company nor any Subsidiary has received any
actual notice of infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or patent, except where
such infringement or conflict would not have a Material Adverse Effect;
13
-13-
(v) there are no labor disputes with the employees of the
Company or any of the Subsidiaries which are likely to have a Material
Adverse Effect;
(w) each of the Company and the Subsidiaries is in compliance with
all applicable existing federal, state, local and foreign laws and
regulations relating to protection of human health or the environment or
imposing liability or standards of conduct concerning any Hazardous
Material (as hereinafter defined) (collectively, the "Environmental
Laws"), except, in each case, where noncompliance, individually or in the
aggregate, would not have a Material Adverse Effect. The term "Hazardous
Material" means (i) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (ii) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, and (iii) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material, waste or
substance regulated under or within the meaning of any other
Environmental Law. There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of the Subsidiaries under any Environmental
Law which, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect;
(x) no authorization, approval or consent of any governmental
authority or agency is required (other than those which have already
been obtained) under the laws of any jurisdiction in which the Company
and the Subsidiaries conduct their respective businesses in connection
with the ownership by the Company of capital stock of any Subsidiary, any
foreign exchange controls or the repatriation of any amount from or to
the Company and the Subsidiaries, except to the extent that the failure
to obtain such authorization, approval or consent will not have a
Material Adverse Effect;
(y) the Company and the Subsidiaries have filed all federal,
state, local and material foreign tax returns which have been required
to be filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith; and there is no
tax deficiency which has been or might reasonably be expected to be
asserted or threatened against the Company
14
-14-
or any Subsidiary which could have a Material Adverse Effect;
(z) the Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended, or a holding
company under the Public Utility Holding Company Act of 1935;
(aa) the Company does not know of any outstanding claims for
services, either in the nature of a finder's fee or origination fee,
with respect to any of the transactions contemplated hereby;
(bb) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock, and the Company has not distributed nor will it distribute
any prospectus or other offering material in connection with the
offering and sale of the Securities other than any preliminary
prospectus filed with the Commission, the Basic Prospectus or the
Prospectus;
(cc) neither the filing of the Registration Statement or any
amendment thereto nor the offer or sale of the Securities as
contemplated by this Agreement gives rise to any rights for or relating
to the registration under the Securities Act of any securities of the
Company or any Subsidiary; and
(dd) the Company has delivered to the Underwriters written
agreements, in form and substance satisfactory to the Underwriters, of
each of its directors and principal executive officers, pursuant to
which each has agreed not to, directly or indirectly, offer, sell,
contract to sell or otherwise dispose of any shares of Common Stock or any
securities exercisable for or convertible into Common Stock for the
period of days set forth on Schedule I hereto as the Lock-up Period,
without the prior written consent of the Underwriter or Representative,
as the case may be, executing this Agreement on behalf of the Under-
writers.
5. Representations and Warranties of Westinghouse and
Transferee. Westinghouse, as to itself and each of Westinghouse and
Transferee, as to Transferee if Transferee is
15
-15-
a party hereto, represents and warrants to each of the Underwriters and to the
Company that:
(a) such entity has been duly organized and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation;
(b) this Agreement has been duly authorized, executed and
delivered by such entity;
(c) Westinghouse, or, if Transferee has executed this Agreement,
Transferee, is the beneficial and lawful owner of all of the Securities
and has valid and marketable title to the Securities, and upon delivery of
and payment for the Securities, the Underwriters will acquire valid and
marketable title to the Securities, free and clear of any mortgage,
pledge, security interest, lien, claim or other encumbrance or
restriction on transferability or any adverse claim within the meaning of
Section 8-302 of the Uniform Commercial Code in effect in the State of
New York (the "UCC");
(d) the execution and delivery by such entity of, and the
performance by it of its obligations under, this Agreement, and the
consummation of the transactions contemplated herein, (i) have been duly
authorized by all necessary corporate action on its part, (ii) do not and
will not result in any violation of its articles of incorporation or
by-laws and (iii) do not and will not conflict with, or result in a
breach or violation of, any of the terms or provisions of, or constitute
a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or give rise to any right to
accelerate the maturity or require the prepayment of any indebtedness
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of its material property or assets under, (A) any
material indenture, mortgage, loan agreement, note, lease, partnership
agreement or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties or assets may be
subject, (B) any existing applicable law, rule or regulation (subject to
obtaining such approvals as may be required under the securities or Blue
Sky laws of the various states and other jurisdictions of the United
States of America) or (C) any judgment, order or decree of any
government, governmental
16
-16-
instrumentality or court, domestic or foreign, having jurisdiction over
it or any of its properties or assets;
(e) no authorization, approval, consent or license of, or filing
with, any government, governmental instrumentality or court, domestic or
foreign (other than as have been made and obtained and are in full force
and effect under the Securities Act or as may be required under the
securities or Blue Sky laws of the various states and other
jurisdictions of the United States of America), is required for the sale
and delivery of the Securities by such entity or the performance by it
of its obligations under this Agreement;
(f) such entity has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock, and it has not distributed nor will it distribute any
prospectus or other offering material in connection with the offering and
sale of the Securities other than any preliminary prospectus filed with
the Commission, the Basic Prospectus or the Prospectus; and
(g) to the extent that any statements or omissions in the
Registration Statement or the Prospectus are made in reliance upon and
in conformity with information relating to such entity furnished to the
Company in writing by it expressly for use therein, the Registration
Statement, as of the date of the original filing thereof and as of the
applicable effective date as to the Registration Statement and any
amendment thereto, did not and will not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as of its date, as of the date of any
amendment or supplement thereto and as amended or supplemented at the
Closing Date and the Additional Closing Date, if applicable, did not and
will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. For purposes of this paragraph (g), the
only written information furnished by Westinghouse and, if Transferee is
a party hereto, Transferee to the Company expressly for use in the
Registration Statement and the Prospectus is
17
-17-
the information in the second sentence of the first paragraph and the
first sentence of the second paragraph under the caption "Management
Compensation and Changes" and the first paragraph and the last sentence
of the second paragraph under the caption "Principal and Selling
Stockholder" in the Basic Prospectus (it being understood and agreed that
the reference herein to the last sentence of the second paragraph should
not be deemed to be an indication of the ability of Westinghouse to
establish new service arrangements or its ability to minimize any
incremental costs thereof) and the information referred to on Schedule I
hereto under the heading "Information Provided by Westinghouse and
Transferee."
(h) If on the date hereof Westinghouse owns, directly or
indirectly (whether through Transferee or otherwise), more than 50% of
the then outstanding shares of Common Stock as indicated on the
signature page hereto, Westinghouse, as to itself, and each of
Westinghouse and Transferee, as to Transferee if Transferee is a party
hereto, also represents and warrants to each of the Underwriters and to
the Company that, other than statements or omissions in the Registration
Statement or the Prospectus related to information furnished by
Westinghouse and, if Transferee is a party hereto, Transferee referred to
in the foregoing paragraph (g), to the best knowledge of such entity, the
Registration Statement, as of the date of the original filing thereof and
as of the applicable effective date as to the Registration Statement and
any amendment thereto, did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as of the date of the Prospectus
Supplement, as of the date of any amendment or supplement thereto and as
amended or supplemented at the Closing Date and the Additional Closing
Date, if applicable, did not and will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
the foregoing representations and warranties shall not apply to
statements or omissions in 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 such Under-
18
-18-
writer through the Representatives expressly for use therein.
6. Covenants of the Company. The Company covenants and agrees
with the several Underwriters and with Westinghouse and, if Transferee is a
party hereto, with Transferee as follows:
(a) to use its best efforts to cause any amendment
to the Registration Statement to become effective at the earliest
possible time, and to file the Prospectus Supplement and, if not
previously so filed, the Basic Prospectus with the Commission within the
time period specified by Rule 424(b) under the Securities Act;
(b) to deliver to each Representative and to ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, a signed copy of the
Registration Statement (as originally filed) and each amendment thereto,
in each case including exhibits and all documents incorporated by
reference therein, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto,
in each case without exhibits but including the documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to each of the Underwriters and to dealers effecting transactions
in the Common Stock as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by
reference therein as the Underwriters and such dealers may reasonably
request;
(c) prior to the termination of the public offering
of the Securities, before filing any Prospectus Supplement or any
amendment or supplement to the Registration Statement, the Basic
Prospectus or the Prospectus, to furnish to the Representatives and the
Selling Stockholder a copy of the proposed amendment or supplement for
review and not to file any such proposed Prospectus Supplement, amendment
or supplement to which the Representatives or the Selling Stockholder
reasonably objects;
(d) to advise the Representatives and the Selling
Stockholder promptly, and to confirm such advice in writing, (i) when
the Prospectus Supplement shall have been filed pursuant to Rule 424(b)
under the Securities Act and (ii) prior to the termination of the public
offering of the Securities, (A) when any amendment to the Registration
19
-19-
Statement shall have become effective, (B) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose and (D) of
the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its reasonable best efforts to prevent the
issuance of any such stop order or notification and, if issued, to obtain
as soon as practicable the withdrawal thereof;
(e) if, during such period of time after the first
date of the public offering of the Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the Securities is
required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Selling Stockholder, to the
Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Securities may have
been sold by the Underwriters and to any other dealers upon written
request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to use its reasonable best efforts to register
or qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and to continue such registration or qualification in
effect so long as reasonably required for distribution of the Securities;
provided that the Company shall not be required to qualify the Securities
in any jurisdiction where, as a result of such qualification, the Company
would be required to
20
-20-
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(g) to make generally available to its security
holders and to the Underwriters as soon as practicable an earning
statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the effective date of
the Registration Statement (as such effective date is determined pursuant
to Rule 158 of the Commission), which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(h) for a period of four years after the date hereof, to furnish
to the Representatives copies of all reports or other communications
(financial or other) furnished to holders of the Common Stock, and
copies of any reports and financial statements furnished to or filed
with the Commission, the National Association of Securities Dealers, Inc.
(the "NASD") or any national securities exchange;
(i) for the period of days set forth on Schedule I
hereto as the Lock-up Period, without the prior written consent of the
Underwriter or Representative, as the case may be, executing this
Agreement on behalf of the Underwriters, not to, directly or indirectly,
offer, sell, contract to sell or otherwise dispose of any shares of
Common Stock or any securities convertible into or exchangeable or
exercisable for shares of Common Stock (except for shares issuable upon
the exercise of currently outstanding options under the Company's 1981
Stock Option Plan or its 1991 Stock Option Plan and the grant of options
pursuant to the Company's 1991 Stock Option Plan); and
(j) if, in connection with the purchase of the Securities, any
Underwriter could own 10% or more of the outstanding Common Stock
(including, but not limited to, after giving effect to any purchase of
Option Securities pursuant hereto) then, for a period of 90 days
following the date hereof or, if earlier, until no Underwriter
individually owns or could so own 10% or more of the outstanding Common
Stock, not to, directly or indirectly, take any action or omit to take
any action the effect of which act or omission would be to make the
provisions of Section 3-602 of the Maryland General Corporation Law
applicable to the Company.
21
-21-
7. Covenants of Westinghouse and Transferee. Each of
Westinghouse and, if Transferee is a party hereto, Transferee covenants and
agrees with the several Underwriters that for the period of days set forth on
Schedule I hereto as the Lock-up Period, without the prior written consent of
the Underwriter or Representative, as the case may be, executing this
Agreement on behalf of the Underwriters, it will not, directly or indirectly,
offer, sell, contract to sell or otherwise dispose of any shares of Common
Stock or any securities convertible into or exchangeable or exercisable for
shares of Common Stock (except for the Securities).
8. Expenses. Westinghouse agrees with each Under-writer and
with the Company to pay all costs and expenses incident to the performance of
the obligations of the Company, Westinghouse and, if Transferee is a party
hereto, Transferee hereunder, including, without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation, transfer,
execution and delivery of the Securities referred to in Section 3, (ii)
incident to the preparation, printing and filing under the Securities Act of
the Registration Statement, the Basic Prospectus, the Prospectus Supplement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification of the Securities under the laws of such
jurisdictions as the Representatives may designate (including reasonable fees
of counsel for the Underwriters and their disbursements related to such
registration or qualification), (iv) related to any filing with, and review by,
the NASD and (v) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, all other agreements
relating to underwriting and syndication arrangements, the Blue Sky Survey and
the furnishing to the Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder to purchase the Underwritten
Securities are subject to the performance by each of the Company, Westinghouse
and, if Transferee is a party hereto, Transferee of its obligations hereunder
and to the following additional conditions:
(a) If any post-effective amendment to the Registration
Statement shall not have been declared effective prior to the execution
hereof, such post-effective
22
-22-
amendment shall have become effective not later than 5:00 P.M., New
York City time, on the date hereof; no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission; and any requests for additional information by the Commission
shall have been complied with to the satisfaction of the Representatives.
(b) The representations and warranties of the Company,
Westinghouse and, if Transferee is a party hereto, Transferee contained
herein shall be true and correct on and as of the Closing Date as if
made on and as of the Closing Date, and each of the Company,
Westinghouse and, if Transferee is a party hereto, Transferee shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have
been any Material Adverse Change or any development involving a
Prospective Material Adverse Change, other than as set forth or
contemplated in the Registration Statement and the Prospectus, the
effect of which in the judgment of the Representatives makes it
impracticable to proceed with the public offering or the delivery of the
Underwritten Securities on the terms and in the manner contemplated in
the Registration Statement and the Prospectus.
(d) The Underwriters shall have received on and as of the
Closing Date a certificate of an executive officer of the Company
reasonably satisfactory to the Representatives to the effect set
forth in subsections (a) and (b) (insofar as subsection (b) pertains to
the Company) of this Section 9 and to the further effect that since the
respective dates as of which information is given in the Registration
Statement and the Prospectus there has not occurred any Material Adverse
Change or any development involving a Prospective Material Adverse
Change, other than as set forth or contemplated in the Registration
Statement and the Prospectus.
(e) The Underwriters shall have received on and as of the
Closing Date a certificate of an executive officer of each of
Westinghouse and, if Transferee is a party
23
-23-
hereto, Transferee reasonably satisfactory to the Representatives to
the effect set forth in subsection (b) (insofar as subsection (b)
pertains to such entity) of this Section 9.
(f) The Underwriters shall have received on the Closing Date a
signed opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Maryland counsel
for the Company, dated the Closing Date, addressed to the Underwriters
and satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Underwriters, to the effect that:
(i) the Company has been duly organized and is validly
existing under the laws of the State of Maryland, is in good
standing with the State Department of Assessments and Taxation
of Maryland and has the corporate power to own, lease and operate
its properties and to conduct its business substantially as
described in the Registration Statement and the Prospectus;
(ii) each of Fidelio U.S. and MSI has been duly organized
and is validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and corporate
authority to own, lease and operate its properties and to conduct
its business;
(iii) all of the issued and outstanding shares of Common
Stock (including the Securities) have been duly authorized by the
Company, are validly issued and are fully paid and nonassessable
and are not subject to any preemptive or, so far as is known to
such counsel, other similar rights other than those contained in
the Charter;
(iv) (1) except for the items listed on Annex B attached
hereto and so far as is known to such counsel, all of the
outstanding shares of capital stock of the Subsidiaries owned by
the Company are owned free and clear of any mortgage, pledge,
security interest, lien, claim or other encumbrance or restriction
on transfer; (2) all of the outstanding capital stock of each of
Fidelio U.S. and MSI has been duly authorized and validly issued
and is fully paid and nonassessable; and (3) so far as is known to
such counsel, there are no outstanding (a) securities
24
-24-
or obligations convertible into or exchangeable for any shares
of capital stock of the Company, Fidelio U.S. or MSI, (b) rights,
warrants or options to acquire or purchase from the Company,
Fidelio U.S. or MSI any shares of capital stock of the Company,
Fidelio U.S. or MSI (except for outstanding options under the
Company's 1991 Stock Option Plan and 1981 Stock Option Plan as
disclosed in the Proxy Statement or in the Registration Statement
and the Prospectus) or any such convertible or exchangeable
securities or obligations or (c) obligations or understandings of
the Company, Fidelio U.S. or MSI to issue or sell any shares of
capital stock of the Company, Fidelio U.S. or MSI, any such
convertible or exchangeable securities or obligations, or any such
rights, warrants or options, except as set forth on Annex B;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, and the consummation by the Company of the transactions
contemplated herein, do not and will not (a) result in any
violation of any provision of the Charter, the By-laws or the
certificate of incorporation or by-laws of Fidelio U.S. or MSI; (b)
contravene any provision of any applicable law, rule or regulation
of the State of Maryland, except such as would not have a Material
Adverse Effect; (c) contravene any judgment, order or decree known
to such counsel by which the Company or Fidelio U.S. or MSI is
bound or by which their properties or assets may be affected; or
(d) require any authorization, approval, consent or license of, or
filing with, any government, governmental instrumentality or court
of the State of Maryland or the State of Delaware, except such as
may be required under the securities or Blue Sky laws of the State
of Maryland or the State of Delaware;
(vii) the issued and outstanding stock of the Company is as
set forth on the signature page hereto; and
(viii) the statements under the caption "Description of
Capital Stock" in the Registration Statement
25
-25-
and the Prospectus, insofar as such statements constitute a
summary of the legal matters or documents referred to therein,
fairly present in all material respects the information required by
the Securities Act with respect to such legal matters or documents.
In rendering such opinions, such counsel may rely, as
to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and each of its
Subsidiaries and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company, Fidelio U.S. and MSI.
(g) The Underwriters shall have received on the Closing Date a
signed opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, dated the
Closing Date, addressed to the Underwriters and satisfactory to ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, to the effect that:
(i) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, and the consummation by the Company of the transactions
contemplated herein, do not and will not (a) conflict with, or
result in a breach or violation of, any terms or provisions of or
constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or give rise to
any right to accelerate the maturity or require the prepayment of
any indebtedness or any right of termination under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any properties or assets of the Company, Fidelio U.S. and MSI
pursuant to the terms of, any document filed as an exhibit to the
Registration Statement or to any document incorporated by
reference therein or any other material agreement known to such
counsel to which the Company, Fidelio U.S. or MSI is a party or by
which any of their properties or assets may be subject; (b)
contravene any provision of any applicable law, rule or regulation
(the "Applicable Laws") (subject to obtaining such approvals as
may be required under the securities or Blue Sky laws of the
various states and other jurisdictions of the United States of
America), except such as would not have a Material
26
-26-
Adverse Effect; (c) contravene any judgment, order or decree
known to such counsel by which the Company, Fidelio U.S. or MSI is
bound or by which their properties or assets may be affected; or
(d) require any authorization, approval, consent or license of, or
filing with, any government, governmental instrumentality or court,
domestic or foreign, except such as have been obtained and are in
full force and effect under the Securities Act or as may be
required under the securities or Blue Sky laws of the various
states and other jurisdictions of the United States;
(ii) except as described in the Registration Statement and
the Prospectus, to such counsel's knowledge, there is no (A)
investigation, action, suit or proceeding before or by any
government, governmental instrumentality or court now pending or
threatened against or affecting the Company, Fidelio U.S. or MSI
or any of their respective properties or assets that is required
by the Securities Act to be described in the Registration
Statement or the Prospectus and is not so described or (B) contract
or other document that is required by the Securities Act to be
described in or referred to in the Registration Statement or the
Prospectus, or to be filed as an exhibit to the Registration
Statement, that is not described, referred to or filed as required;
(iii) to such counsel's knowledge, neither the filing of the
Registration Statement nor the offer or sale of the Securities to
the Underwriters in the manner contemplated in this Agreement
gives rise to any rights for or relating to the registration under
the Securities Act of any other securities of the Company, Fidelio
U.S. or MSI;
(iv) the Registration Statement and the Prospectus and all
amendments and supplements thereto (except for the financial
statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration
Statement and the Prospectus, as to which counsel need not express
an opinion) comply as to form in all material respects with the
requirements of the Securities Act, and each document filed
pursuant to the Exchange Act and incorporated by reference in
the Registration Statement and the Prospectus (except for the
27
-27-
financial statements, schedules and other financial and
statistical data included therein, as to which counsel need not
express an opinion) complied as to form in all material respects
with the requirements of the Exchange Act when filed with the
Commission;
(v) the Company is not an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended, or a
holding company under the Public Utility Holding Company Act of
1935; and
(vi) each of the Company, Fidelio U.S. and MSI is qualified
to do business and is in good standing as a foreign corporation
under the laws of each jurisdiction of the United States in which
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or to be
in good standing, individually or in the aggregate, would not have
a Material Adverse Effect.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of the laws of the State of
Maryland, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ rendered pursuant to paragraph (f) of this Section 9;
and (B) as to matters of fact, to the extent such counsel deems proper,
on certificates of responsible officers of the Company and each of its
Subsidiaries and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company, Fidelio U.S. and MSI. The
opinion of such counsel for the Company shall state that the opinion of
any such other counsel is in form satisfactory to such counsel and, in
such counsel's opinion, the Underwriters and they are justified in
relying thereon.
Such counsel shall also state that it has been advised by the
Commission that the Registration Statement became effective under the
Securities Act; that any required filings of the Prospectus pursuant to
Rule 424(b) have been made in the manner and within the time period
required by Rule 424(b); and that, to its knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that
28
-28-
purpose have been instituted, are pending or threatened under the
Securities Act.
Such counsel shall also state that, although such counsel does not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, no facts have come to such counsel's attention which would
lead such counsel to believe that the Registration Statement (including
the documents incorporated by reference therein), at the time it became
effective, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus
(including the documents incorporated by reference therein), as of the
date of the Prospectus Supplement and as of the Closing Date, contained
any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (but such counsel need not comment with respect to the
financial statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement and
the Prospectus).
(h) The Underwriters shall have received on the Closing Date
signed opinions (in form and substance satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Underwriters), as to such matters as the
Representatives may reasonably request involving the Subsidiaries marked
with an asterisk on Annex A hereto, of additional counsel reasonably
acceptable to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters,
familiar with the applicable laws.
(i) The Underwriters shall have received on the Closing Date a
signed opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel of
Westinghouse, or other counsel reasonably acceptable to the Underwriters,
dated the Closing Date, addressed to the Underwriters and satisfactory
to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, to the effect
that:
(i) each of Westinghouse and, if Transferee is a party
hereto, Transferee has been duly organized and is validly existing
and in good standing under the laws of its jurisdiction of
incorporation;
29
-29-
(ii) this Agreement has been duly authorized, executed and
delivered by each of the entities comprising the Selling
Stockholder, and each of Westinghouse and, if Transferee is
a party hereto, Transferee has the corporate power and authority to
sell, transfer and deliver the Underwritten Securities in the
manner provided in this Agreement; and
(iii) the execution and delivery by each of Westinghouse and,
if Transferee is a party hereto, Transferee of, and the
performance by it of its obligations under, this Agreement, and
the consummation by it of the transactions contemplated herein, do
not and will not (a) result in any violation of any provision of
its articles of incorporation or by-laws; (b) conflict with, or
result in a breach or violation of, any terms or provisions of, or
constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or give rise to
any right to accelerate the maturity or require the prepayment of
any indebtedness under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of its properties or
assets pursuant to the terms of, any material agreement known to
such counsel to which it is a party or by which any of its
properties or assets may be subject; (c) contravene any Applicable
Laws (subject to obtaining such approvals as may be required under
the securities or Blue Sky laws of the various states and other
jurisdictions of the United States of America); (d) contravene any
judgment, order or decree known to such counsel by which such
entity is bound or by which its properties or assets may be
affected; or (e) require any authorization, approval, consent or
license of, or filing with, any government, governmental
instrumentality or court, domestic or foreign, except such as have
been obtained and are in full force and effect under the Securities
Act or as may be required under the securities or Blue Sky laws of
the various states and other jurisdictions of the United States.
(j) The Underwriters shall have received on the Closing Date a
signed opinion of Cravath, Swaine & ▇▇▇▇▇, counsel for the Selling
Stockholder, dated the Closing Date, addressed to the Underwriters and
satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, to
30
-30-
the effect that upon delivery of the certificates for the Underwritten
Securities to the Underwriters endorsed to them or in blank and payment
therefor by the Underwriters in accordance with the terms of this
Agreement, each Underwriter will acquire beneficial ownership of the
Underwritten Securities being purchased by it free of any adverse claim
within the meaning of Section 8-302 of the UCC, assuming that such
Underwriter is acting in good faith and has no notice of any adverse
claim. Such counsel may state that, although each Underwriter will
acquire beneficial ownership of the Underwritten Securities being
purchased by it as described in the immediately preceding sentence, such
Underwriter will not acquire record title to such Underwritten Securities
until such Underwritten Securities are registered in the share records of
the Company in the name of such Underwriter (or a nominee thereof).
(k) At the time this Agreement is executed and also
on the Closing Date, Price Waterhouse LLP shall have furnished to the
Underwriters letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to the Representatives, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to certain
financial information relating to the Company and the Subsidiaries
contained in the Registration Statement and the Prospectus or
incorporated by reference therein; such letters shall also be addressed
and delivered to the Selling Stockholder.
(l) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, with
respect to the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(m) The Securities shall continue to be qualified for quotation
on the Nasdaq National Market.
(n) On or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and documents
as the Representatives shall reasonably request.
31
-31-
The several obligations of the Underwriters to purchase Option
Securities hereunder are subject to satisfaction of the conditions set forth in
paragraphs (a) through (g) and (i) through (n) above on and as of the
Additional Closing Date, except that the certificates called for by paragraphs
(d) and (e), the opinions called for by paragraphs (f), (g), (i), (j) and (l)
and the letter called for by paragraph (k) shall be dated the Additional
Closing Date and any reference to Underwritten Securities shall be deemed to be
a reference to Option Securities.
10. Indemnification and Contribution. The Company and, if on the
date hereof Westinghouse owns, directly or indirectly (whether through
Transferee or otherwise), more than 50% of the then outstanding shares of
Common Stock as indicated on the signature page hereto, Westinghouse agree,
jointly and severally, to indemnify and hold harmless each Underwriter, its
officers and directors, and each person, if any, who controls such Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any
claim asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto to the Underwriters) or any preliminary prospectus, or
caused by 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 or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein; provided that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Securities if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto to the
Underwriters) and, if required by law to be furnished, a copy of the Prospectus
(as
32
-32-
so amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement, each person who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act and
Westinghouse to the same extent as the foregoing indemnity from the Company and
Westinghouse to each Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. For purposes of this Section 10, the only written
information furnished by the Underwriters to the Company expressly for use in
the Registration Statement and the Prospectus is the information referred to on
Schedule I hereto under the heading "Information Provided by the Underwriters."
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify in writing the person or persons against whom such indemnity
may be sought (each an "Indemnifying Person"), and such Indemnifying Person,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may designate in such proceeding and shall
pay the reasonable fees and expenses incurred by such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) such Indemnifying
Person and such Indemnified Person shall have mutually agreed to the contrary,
(ii) such Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to such Indemnified Person or (iii) the named
parties in any such proceeding (including any impleaded parties) include both
an Indemnifying Person and an Indemnified Person and representation of each
such party by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that an
Indemnifying Person shall not, in connection with any proceeding or related
33
-33-
proceedings in the same jurisdiction, be liable for (a) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Underwriters, their officers and directors and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (b) the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of either
such Section and (c) the reasonable fees and expenses of more than one separate
firm (in addition to any local counsel) for the Selling Stockholder, and that
all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of the Underwriters
shall be designated in writing by the Underwriter or Representative, as the
case may be, executing this Agreement on behalf of the Underwriters; any such
separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company (other than
Westinghouse and, if Transferee is a party hereto, Transferee) shall be
designated in writing by the Company; and any such separate firm for
Westinghouse shall be designated in writing by Westinghouse. No Indemnifying
Person shall be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, such Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses incurred by counsel as
contemplated by the third sentence of this paragraph, such Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and
(ii) such Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement; provided,
however, that such Indemnified Person shall not have the right to enter into
such settlement if there is a good faith dispute between such Indemnified
Person and such Indemnifying Person regarding such Indemnifying Person's
obligation to reimburse such Indemnified Person for such fees and expenses of
counsel. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending
34
-34-
or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first, second and third
paragraphs of this Section 10 is unavailable to an Indemnified Person in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Westinghouse in the aggregate on the one
hand and the Underwriters on the other hand from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and Westinghouse in the aggregate on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and Westinghouse in the aggregate on the one hand and the Underwriters
on the other hand shall be deemed to be in the same respective proportions as
the net proceeds from the offering (before deducting expenses) received by the
Selling Stockholder and the total underwriting discounts received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate public offering price of the Securities. The relative fault of
the Company and Westinghouse in the aggregate on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company, Westinghouse or Transferee or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
Each of the Company, Westinghouse and the Underwriters agrees that
it would not be just and equitable if contribution pursuant to this Section 10
were determined by pro rata
35
-35-
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 the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that 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 Securities 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 10 are several in proportion
to the respective number of shares of Common Stock constituting Underwritten
Securities set forth opposite their names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this
Section 10 are in addition to any liability which any Indemnifying Person may
otherwise have to any other Indemnifying Person or any Indemnified Person,
including pursuant to the Stock Unit Purchase Agreement between the Company and
Westinghouse, dated as of October 30, 1986, as amended by that certain letter
agreement dated May 2, 1995 between the Company and Westinghouse (which
agreement, as so amended, shall not be deemed or considered amended or
superseded by this Section 10). The Company and Westinghouse agree that any
indemnity or contribution payments made by Westinghouse to any Indemnified
Person pursuant to this Section 10 will be treated by the Company and
Westinghouse as liabilities of Westinghouse that are subject to the Company's
indemnification contained in Section 7.04 of such Stock Unit Purchase Agreement
(subject to the limitation contained in the proviso to the first paragraph of
clause (d) thereof), and any indemnity or contribution payments made by the
Company to any Indemnified Person pursuant to this Section 10 will be treated
by Westinghouse and the Company as liabilities of the Company that are subject
to Westinghouse's indemnification contained in Section 7.04 of such Stock ▇▇▇▇
▇▇
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (subject to the limitation contained therein with respect
to written information furnished to the Company by Westinghouse and, if
Transferee is a party hereto, Transferee).
The indemnity and contribution agreements contained in this
Section 10 and the representations and warranties of the Company, Westinghouse
and, if Transferee is a party hereto, Transferee as set forth in this
Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, Westinghouse or Transferee or the officers or
directors or any other person controlling the Company, Westinghouse or
Transferee and (iii) acceptance of and payment for any of the Securities.
11. Termination of This Agreement. Notwithstanding anything
herein contained, this Agreement (or the obligations of the several
Underwriters with respect to the Option Securities) may be terminated in the
absolute discretion of the Representatives, by notice given to the Company and
Westinghouse, if after the execution and delivery of this Agreement and prior
to the Closing Date (or, in the case of the Option Securities, prior to the
Additional Closing Date) (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, either the New York Stock
Exchange or the Nasdaq National Market, (ii) trading of any securities of the
Company shall have been suspended or materially limited on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by Federal or New York State
authorities, or (iv) there shall have occurred an outbreak of hostilities or
an escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the Representatives,
is material and adverse and which, in the reasonable judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus.
12. Reimbursement upon Occurrence of Certain Events. If this
Agreement shall be terminated by the Representatives because of any failure or
refusal on the part of the Company, Westinghouse or Transferee (if it is a
party hereto) to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason any of the Company, Westinghouse or
Transferee (if it is a party hereto) shall be unable to perform its obligations
under this Agreement or any
37
-37-
condition of the Underwriters' obligations cannot be fulfilled, Westinghouse
agrees to reimburse the Underwriters for all out-of-pocket expenses (including
the fees and expenses of their counsel) incurred by the Underwriters in
connection with this Agreement or the offering contemplated hereunder.
13. Effectiveness of This Agreement; Additional Obligations of
the Underwriters. This Agreement shall become effective upon the later of (x)
the execution and delivery hereof by the parties hereto and (y) release of
notification by the Commission of the effectiveness of the most recent
post-effective amendment to the Registration Statement filed prior to the
Closing Date.
If, on the Closing Date or the Additional Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Securities which it or they have agreed to purchase hereunder on
such date, and the aggregate number of Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the number of Securities to be purchased on such date,
the other Underwriters, if any, shall be obligated severally in the proportions
that the number of Underwritten Securities set forth opposite their respective
names in Schedule I hereto bears to the aggregate number of Underwritten
Securities set forth opposite the names of all such nondefaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase
the Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Securities that any Underwriter has agreed to purchase pursuant to
Section 1 be increased pursuant to this Section 13 by an amount in excess of
one-ninth of the number of shares of Common Stock constituting Securities which
such Underwriter is obligated to purchase hereunder without the written consent
of such Underwriter. If, on the Closing Date or the Additional Closing Date,
as the case may be, any Underwriter or Underwriters shall fail or refuse to
purchase Securities which it or they have agreed to purchase hereunder on such
date, and the aggregate number of Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Securities to be
purchased on such date, and arrangements satisfactory to the Representatives
and the Selling Stockholder for the purchase of such Securities are not made
within 36 hours after such default, this Agreement (or the obligations of the
several Underwriters to purchase the Option Securities, as the case may be)
shall terminate without
38
-38-
liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholder. In any such case the Representatives, the Company or
the Selling Stockholder shall have the right to postpone the Closing Date (or,
in the case of the Option Securities, the Additional Closing Date), but in no
event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents
or arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
14. Notice. Any action by the Underwriters or the Representatives
hereunder may be taken by the Representatives jointly or by the Underwriter or
Representative, as the case may be, executing this Agreement acting alone on
behalf of the Underwriters or the Representatives, as the case may be, and any
such action taken by the Representatives jointly or by such Underwriter or
Representative alone shall be binding upon the Underwriters and the
Representatives. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
given to the Representatives at the address set forth on Schedule I hereto.
Notices to the Company shall be given to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: President (facsimile (301)
210-3334). Notices to Westinghouse or the Selling Stockholder shall be given
to it at ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel (facsimile (412)
642-5224).
15. Miscellaneous. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company, Westinghouse and, if
Transferee is a party hereto, Transferee and any controlling person referred
to herein and their respective successors, heirs and legal representatives.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters,
the Company, Westinghouse and, if Transferee is a party hereto, Transferee and
their respective successors, heirs and legal representatives and the controlling
persons and officers and directors referred to in Section 10 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No
purchaser of
39
-39-
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
16. Counterparts; Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to the conflicts of laws provisions thereof.
40
If the foregoing is in accordance with your understanding, please
sign and return six counterparts hereof.
Very truly yours,
MICROS SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Chief Operating Officer
WESTINGHOUSE ELECTRIC CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
WESTINGHOUSE HOLDINGS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
Number of shares of Common Stock
owned by the Selling
Stockholder: 4,849,123
-----------
Number of shares of Common Stock
outstanding: 7,859,095
-----------
41
Accepted: July 6, 1995
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
42
SCHEDULE I
Number of Shares of
Common Stock Constituting
Underwritten Securities
Underwriter(1) To Be Purchased
----------- ---------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. 700,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 150,000
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. 150,000
---------
Total Number of Underwritten
Securities................... 1,000,000
=========
Total Number of Option Securities, if any... 0
=========
Purchase Price per share: $ 30.07
-----
Period for Exercise of Option to Purchase
Option Securities: n/a
Lock-up Period: 60 days following the date
of the Prospectus Supplement
Closing Date: July 11, 1995
Information Provided by the Underwriters: The information in the last
paragraph on the outside front cover page of the Prospectus Supplement, the
stabilization legend in the forepart of the Prospectus Supplement and the third
paragraph under the caption "Underwriting" in the Prospectus Supplement.
Information Provided by Westinghouse and Transferee: The information in the
last sentence of the first paragraph of the Prospectus Supplement.
--------------------------
(1) The notice address for the Underwriters is as follows:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
43
ANNEX A
SUBSIDIARIES
Percentage Owned
by Immediate
Parent Entity
----------------
MICROS Canada Inc. (Ontario) 100%
MICROS Foreign Sales Corporation (Barbados) 100%
MICROS of South Florida, Inc. (Maryland) 100%
MICROS POS Pty. Limited (Australia) 100%
*MICROS Systems (U.K.) Ltd. (United Kingdom) 100%
*MICROS Systems Hispania, S.L. (Spain) 100%
MSI Delaware, Inc. (Delaware) 100%
MICROS of Delaware, Inc. (Delaware) 100%
*MICROS Systems Holding GmbH (Germany) 100%
*MICROS Systems Deutschland GmbH (Germany) 100%
*MICROS Systems Services GmbH (Germany) 100%
Fidelio Software Corporation (Delaware) 90%
Marblehead Systems International, Inc. (Delaware) 50%
*Fidelio Software U.K. Limited (England and Wales) 80%
*MICROS System AG (Ltd.) (Switzerland) 60%
*Fidelio France S.A. (France) 51%
(direct)
12.67%
(indirect)
Merchants Information Systems, Inc. (Maryland) 49%
(direct)
24.48%
(indirect)
▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc.:
1. The Articles of Incorporation require transfers of stock
of MICROS Canada Inc. to be approved by the directors of MICROS Canada Inc. or
to be approved by the holders of at least 51% of the outstanding common shares
of MICROS Canada Inc.
2. A Management Agreement, dated February 12, 1993, among
▇▇▇▇▇ ▇▇▇▇▇ and others (referred to therein as the "Management Group"), the
Company and MICROS Canada Inc., provides that the Management Group would earn
shares of common stock of MICROS Canada Inc. (referred to as "Performance
Shares" therein) based upon the realization of certain goals relating to the
sales and income of MICROS Canada Inc. The Management Agreement further
provides that within 60 days following the occurrence of a Triggering Event (as
defined in the Management Agreement), the Management Group may request the
Company to redeem the Performance Shares for cash or, if the Company agrees,
for stock of the Company. An officer of MICROS Canada Inc. and an officer of
the Company have certified that the sales and income of MICROS Canada Inc. have
never been at a level which would require MICROS Canada Inc. to issue
Performance Shares pursuant to the Management Agreement, that no Performance
Shares have ever been issued by MICROS Canada Inc. and that, other than ▇▇▇▇▇
▇▇▇▇▇, there are no other parties entitled to Performance Shares pursuant to
this Management Agreement.
MICROS Foreign Sales Corporation:
1. The Articles of Incorporation provide that no shares of
MICROS Foreign Sales Corporation may be transferred without the approval of the
directors of MICROS Foreign Sales Corporation or a committee of such directors.
The Articles of Association also provide that the directors may, in their
absolute discretion and without assigning any reason therefor, decline to
register any transfer of any share.
MICROS of Delaware, Inc.:
1. A Subscription Agreement, dated February 5, 1993, between
MICROS of Delaware, Inc. and the Company, provides that stock of MICROS of
Delaware, Inc. purchased by the Company pursuant to this Subscription Agreement
may not
45
be offered, sold, pledged or otherwise disposed of, except pursuant to
(i) an effective registration statement under the Securities Act of 1933 (the
"1933 Act") and qualification under applicable state and foreign securities
laws, or (ii) an opinion of counsel satisfactory to MICROS of Delaware, Inc.
that such registration and qualification are not required.
MICROS of South Florida, Inc.:
1. A Management Agreement, dated April 1993 (the "▇▇▇▇▇▇▇▇
Management Agreement"), among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") and others
(referred to therein as the "Management Group"), the Company and MICROS of
South Florida, Inc. ("MSF"), provides that the Management Group would earn
shares of common stock of MSF (referred to as "Performance Shares" therein)
based upon the realization of certain goals relating to the sales and income
of MSF. The ▇▇▇▇▇▇▇▇ Management Agreement further provides that within 60 days
following the occurrence of a Triggering Event (as defined in the ▇▇▇▇▇▇▇▇
Management Agreement), the Management Group may request the Company to redeem
the Performance Shares for cash or, if the Company agrees, for stock of the
Company. An officer of MSF and an officer of the Company have certified (a)
that as of July 11, 1995, no such Triggering Event has occurred, (b) that the
sales and income of MSF have never been at a level which would require MSF to
issue Performance Shares pursuant to the ▇▇▇▇▇▇▇▇ Management Agreement, other
than sales for the fiscal year 1993 which required MSF to issue 16 Performance
Shares to ▇▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇▇▇ Management Agreement, (c) that no
Performance Shares have ever been issued by MSF, other than such 16 Performance
Shares and other than as set forth in paragraph 2 below and (d) that, other
than ▇▇▇▇▇▇▇▇ and Read ▇▇▇▇▇▇▇▇▇▇▇, there are no other parties entitled to
Performance Shares pursuant to the ▇▇▇▇▇▇▇▇ Management Agreement.
2. A Management Agreement, dated July 1, 1992 (the
"▇▇▇▇▇▇▇▇▇▇▇ Management Agreement"), among Read ▇▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇")and
others (referred to therein as the "Management Group"), the Company and MICROS
of South Florida, Inc.("MSF"), provides that the Management Group would earn
shares of common stock of MSF (referred to as "Performance Shares" therein)
based upon the realization of certain goals relating to the sales and income of
MSF The ▇▇▇▇▇▇▇▇▇▇▇ Management Agreement further provides that within 60 days
following the occurrence of a Triggering Event (as defined in the ▇▇▇▇▇▇▇▇▇▇▇
Management Agreement), the Management Group may request the Company to redeem
the
2
46
Performance Shares for cash or, if the Company agrees, for stock of the
Company. An officer of MSF and an officer of the Company have certified (a)
that as of July 11, 1995, no such Triggering Event has occurred, (b) that the
sales and income of MSF have never been at a level which would require MSF to
issue Performance Shares pursuant to the ▇▇▇▇▇▇▇▇▇▇▇ Management Agreement,
other than sales for the fiscal year 1993 which required MSF to issue 24
Performance Shares to ▇▇▇▇▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇▇▇▇▇▇ Management
Agreement, (c) that no Performance Shares have ever been issued by MSF, other
than such 24 Performance Shares and other than as set forth in paragraph 1
above, (d) that such 24 Performance Shares have been redeemed for cash, (e)
that as of July 11, 1995, there are no outstanding Performance Shares issued
pursuant to the ▇▇▇▇▇▇▇▇▇▇▇ Management Agreement and (f) that, other than
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇, there are no other parties entitled to
Performance Shares pursuant to the ▇▇▇▇▇▇▇▇▇▇▇ Management Agreement.
MICROS POS Pty. Limited:
1. The Articles of Association provide that the directors of
MICROS POS Pty. Limited may decline to register any transfer of shares of
MICROS POS Pty. Limited to any person of whom they do not approve and shall
not be called upon to assign any reason for such refusal.
2. The Articles of Association of MICROS POS Pty. Limited
provide the following:
"89. (a) The Company shall have a first and paramount lien upon
every share (whether fully paid or not) for all moneys
whether presently payable or not or payable at a fixed
time with interest and expenses owing to the Company in
respect of that share but the Directors may at any time
declare any share to be wholly or in part exempt from the
provisions of this Article.
"(b) The Company shall have a first and paramount lien for
unpaid calls and installments upon the specific shares in
respect of which such moneys are due and unpaid. Such lien
shall extend to all dividends from time to time declared
in respect of such shares. If the Company shall register a
transfer of any share upon which it has a claim without
first giving to the
3
47
transferee a notice of the claim that share shall be freed
and discharged from the lien.
"90. Whenever any law imposes a liability or possible liability
upon the Company to make any payment whether in respect of
dividends or in respect of the member's ownership of shares in
the Company in consequence of his death non-payment of income tax
or other tax or estate Probate death or succession duties the
Company in every such case shall be fully indemnified by the
member or his executor or administrator from all liabilities and
shall have a lien for all moneys and liabilities due or
chargeable in respect of any such law together with interest at
the rate of 10% per annum to the same extent as for other moneys
payable at a fixed time in respect of the member's shares. The
provisions of this Article shall not prejudice any right or
remedy conferred on the Company as between the Company and every
such member his executors administrators or estate.
"91. The Company may sell in such manner as the Directors think
fit any shares on which the Company has a lien but no sale shall
be made unless some sum in respect of which the lien exists is
presently payable nor until the expiration of 14 days after a
notice in writing stating and demanding payment of such part of
the amount in respect of which the lien exists as is presently
payable has been given to the registered holder for the time
being of the share or the persons entitled thereto by reason of
his death or bankruptcy.
* * *
"94. The Directors may from time to time make calls upon the
members in respect of any money unpaid on their shares (whether
on account of the nominal value of the shares or by way of
premium) and not by the conditions of allotment thereof made
payable at fixed times and each member shall pay the amount
called on his shares to the Company at the times specified by the
Directors. A call may be revoked or postponed as the Directors
may determine."
MICROS Systems (U.K.) Limited:
4
48
1. Section 3 of the Articles of Association of MICROS Systems
(U.K.) Limited ("MICROS-U.K.") states "The lien conferred by Clause 8 in [Table
A in the Schedule to the Companies (Tables A to F) Regulations 1985 as amended
by the Companies (Tables A to F) (Amendment) Regulations 1985 ("Table A")]
shall attach also to fully paid-up shares, and [MICROS-U.K.] shall also have a
first and paramount lien on all shares, whether fully paid or not, standing
registered in the name of any person indebted or under liability to
[MICROS-U.K.], whether he shall be the sole registered holder thereof or shall
be one of two or more joint holders, for all monies presently payable by him
or his estate to [MICROS-U.K.]. Clause 8 in Table A shall be modified
accordingly."
2. The Articles of Association provide that the directors of
MICROS-U.K. may, in their absolute discretion and without assigning any reason
therefor, decline to register the transfer of a share, whether or not such
share is fully paid.
MSI Delaware, Inc.:
1. A Subscription Agreement, dated February 5, 1993, between
MSI Delaware, Inc. and the Company, provides that stock of MSI Delaware, Inc.
may not be offered, sold, pledged or otherwise disposed of, except pursuant to
(i) an effective registration statement under the Securities Act of 1933 (the
"1933 Act") and qualification under the applicable state and foreign securities
laws, or (ii) an opinion of counsel satisfactory to MSI Delaware, Inc. that
such registration and qualification are not required.
MICROS Systems Deutschland GmbH:
1. The Articles of Association require that a quotaholder who
desires to transfer his or her shares in MICROS Systems Deutschland GmbH must
obtain the written consent of the other quotaholders of MICROS Systems
Deutschland GmbH and the consent of the Executive Board of MICROS Systems
Deutschland GmbH prior to such transfer. The Articles of Association provide an
exception from this consent requirement if a transfer is made (i) to another
existing quotaholder of MICROS Systems Deutschland GmbH or (ii) to a related
party of the transferring quotaholder.
MICROS Systems Services GmbH:
1. Article 6.1 of the Articles Association of MICROS Systems
Services GmbH provides that a quota in MICROS
5
49
Systems Services GmbH may not be transferred or made subject to a lien or any
similar third-party interest without the prior written consent of a majority
of quotaholders who hold greater than a 50% interest in the share capital of
MICROS Systems Services GmbH. Such consent is not required if the parties to
the quota transfer are either other quotaholders of MICROS Systems Services
GmbH or related companies, as defined in the German Stock Corporation Statute
(Aktiengesetz). Article 6.2 of the Articles of Association of MICROS Systems
Services GmbH provides that (i) a transfer of a quota in MICROS Systems
Services GmbH and (ii) an encumbrance of a lien or a similar third-party
interest upon a quota to the benefit of a non-quotaholder or an unrelated
party must be approved by a majority of votes cast at a duly convened
quotaholders' meeting. Article 6.3 of the Articles of Association of MICROS
Systems Services GmbH provides for a preemption right in the case of an
increase in the number of outstanding quotas in MICROS Systems Services GmbH.
Fidelio Software U.K. Limited:
1. Section 6 of the Articles of Association states "In
regulation 8 of Table A, the words '(not being a fully paid share)' shall be
omitted. The Company shall have a first and paramount lien on all shares
standing registered in the name of any person (whether he be the sole
registered holder thereof or one of two or more joint holders) for all moneys
presently payable by him or his estate to the Company."
2. The Articles of Association provide that the directors of
Fidelio Software U.K. Limited may, in their sole discretion and without
assigning any reason therefor, decline to register the transfer of any share of
Fidelio Software U.K. Limited, whether or not such share is fully paid.
MICROS Systems AG:
1. A Joint Venture Contract between the Company and Host AG,
Zurich, an entity not yet formed as of the time of the execution of the Joint
Venture Contract, requires that a shareholder of MICROS Systems AG obtain the
consent of the other shareholders prior to the transfer of stock of MICROS
Systems AG.
Fidelio France SA:
1. The Articles of Association/By-laws of Fidelio France SA
provide for a right of first refusal to
6
50
the non-transferring shareholders prior to transfer of stock of Fidelio France
SA.
Marblehead Systems International, Inc.:
1. A Shareholders' Agreement, dated February 22, 1994,
between Fidelio Software Corporation and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ provides a right of
first refusal to non-transferring shareholders prior to transfer of stock.
Merchants Information Systems, Inc.:
1. A Shareholders' Agreement, dated July 30, 1993, between
the Company and Merchants Systems, Inc., a Washington State corporation,
provides a right of first refusal to the non-transferring shareholders prior to
a transfer of stock of Merchants Information Systems, Inc.
7