EXHIBIT 1.1
▇▇▇▇▇▇ WORLDWIDE, INC.
7,465,759 Shares of Common Stock
Underwriting Agreement
May , 2006
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Credit Suisse Securities (USA) LLC
Banc of America Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
Sandler ▇'▇▇▇▇▇ & Partners, L.P.
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
Credit Suisse Securities (USA) LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Worldwide, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of 6,250,000 shares of common stock, par value
$ 0.01 per share (the "Stock"), of the Company, and the stockholders of the
Company named in Schedule II hereto (the "Selling Stockholders") propose to sell
to the Underwriters an aggregate of 1,215,759 shares. In addition, at the option
of the Underwriters, the Company proposes to issue and sell to the several
Underwriters, up to an additional 937,500 shares of Stock, and the Selling
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Stockholders propose to sell to the Underwriters an additional 182,363 shares of
Stock. The aggregate of 7,465,759 shares of the Stock to be sold by the Company
and the Selling Stockholders is herein called the "Underwritten Shares" and the
aggregate of 1,119,863 additional shares of the Stock to be sold by the Company
and the Selling Stockholders at the Underwriters' option is herein called the
"Option Shares". The Underwritten Shares and the Option Shares are herein
referred to as the "Shares".
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement (File No.
333-127385) including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it becomes effective, including the
information, if any, deemed pursuant to Rule 430A under the Securities Act to be
part of the registration statement at the time of its effectiveness ("Rule 430
Information"), is referred to herein as the "Registration Statement"; and as
used herein, the term "Preliminary Prospectus" means each prospectus included in
such registration statement (and any amendments thereto) before it becomes
effective, any prospectus filed with the Commission pursuant to Rule 424(a)
under the Securities Act and the prospectus included in the Registration
Statement at the time of its effectiveness that omits Rule 430A Information, and
the term "Prospectus" means the prospectus in the form first used (or made
available upon request of purchasers pursuant to Rule 173 under the Securities
Act) in connection with confirmation of sales of the Shares. If the Company has
filed an abbreviated registration statement pursuant to Rule 462(b) under the
Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement.
At or prior to the time when sales of the Shares were first made (the
"Time of Sale"), the Company had prepared the following information
(collectively with the pricing information set forth on Annex A, the "Time of
Sale Information"): a Preliminary Prospectus dated May 1, 2006, and each
"free-writing prospectus" (as defined pursuant to Rule 405 under the Securities
Act) listed on Annex B hereto.
2. Purchase of the Shares by the Underwriters. (a) The Company and each
of the Selling Stockholders agree, severally and not jointly, to sell the Shares
to the several Underwriters as provided in this Agreement, and each Underwriter,
on the basis of the representations, warranties and agreements set forth herein
and subject to the conditions set forth herein, agrees, severally and not
jointly, to purchase from the Company and each of the Selling Stockholders at a
purchase
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price per share of $_____ (the "Purchase Price") the number of Underwritten
Shares (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying the aggregate number of Underwritten Shares to be sold by the
Company and each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is
the aggregate number of Underwritten Shares to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Underwritten Shares to be
purchased by all the Underwriters from the Company and all of the Selling
Stockholders hereunder. The public offering price of the Shares is not in excess
of the price recommended by Credit Suisse Securities (USA) LLC, acting as a
"qualified independent underwriter" within the meaning of Rule 2720 of the Rules
of Conduct of the National Association of Securities Dealers, Inc.
In addition, the Company and each of the Selling Stockholders agree,
severally and not jointly, to sell the Option Shares to the several Underwriters
and such Underwriters shall have the option to purchase at their election up to
a maximum of 1,119,863 Option Shares at the Purchase Price. The Underwriters, on
the basis of the representations, warranties and agreements set forth herein,
and subject to the conditions set forth herein, shall have the option to
purchase, severally and not jointly, from the Company and the Selling
Stockholders at the Purchase Price that portion of the number of Option Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of Option
Shares by a fraction the numerator of which is the maximum number of Option
Shares which such Underwriter is entitled to purchase and the denominator of
which is the maximum number of Option Shares which all of the Underwriters are
entitled to purchase hereunder.
The Underwriters may exercise the option to purchase the Option Shares
at any time in whole, or from time to time in part, on or before the thirtieth
day following the date of this Agreement, by written notice from the
Representatives to the Company and the Attorneys-in-Fact (as defined below). The
Option Shares may only be purchased by the Underwriters for the purpose of
covering over-allotments made in connection with the sale of the Underwritten
Shares. Such notice shall set forth the aggregate number of Option Shares as to
which the option is being exercised and the date and time when the Option Shares
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 nor later than the third full business day (as hereinafter defined) after
the date of such notice (unless such time and date are postponed in accordance
with the provisions of Section 12 hereof). Any such notice shall be given at
least two business days prior to the date and time of delivery specified
therein.
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(b) The Company and the Selling Stockholders understand that the
Underwriters intend to make a public offering of the Shares as soon after the
effectiveness of this Agreement as in the judgment of the Representatives is
advisable, and initially to offer the Shares on the terms set forth in the
Prospectus. The Company and the Selling Stockholders acknowledge and agree that
the Underwriters may offer and sell Shares to or through any affiliate of an
Underwriter and that any such affiliate may offer and sell Shares purchased by
it to or through any Underwriter.
Approximately 223,973 Underwritten Shares ("Directed Shares") will
initially be reserved by the several Underwriters for offer and sale to
employees and persons, who have heretofore delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, Inc. offers or indications of interest to purchase Directed Shares
in form reasonably satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., having
business relationships with the Company and its subsidiaries ("Directed Share
Participants") upon the terms and conditions set forth in the most recent
Preliminary Prospectus and the Prospectus (the "Directed Share Program") and in
accordance with the rules and regulations of the National Association of
Securities Dealers, Inc., and any allocation of such Directed Shares among such
persons will be made in accordance with timely directions received by ▇▇▇▇▇▇▇
▇▇▇▇▇ & Associates, Inc. from the Company. Under no circumstances will ▇▇▇▇▇▇▇
▇▇▇▇▇ & Associates, Inc. or any Underwriter be liable to the Company or to any
Directed Share Participant for any action taken or omitted to be taken in good
faith in connection with such Directed Share Program. To the extent that any
Directed Shares are not affirmatively reconfirmed for purchase by any Directed
Share Participant on or immediately after the date of this Agreement, such
Directed Shares may be offered to the public as part of the public offering
contemplated hereby.
(c) Payment for the Shares shall be made by wire transfer in
immediately available funds to the accounts specified by the Company to the
Representatives with regard to payment to the Company and by the
Attorneys-in-Fact, or any of them, to the Representatives with regard to payment
to the Selling Stockholders, in the case of the Underwritten Shares, at the
offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ at 10:00 A.M. New York City time on May __,
2006, or at such other time or place on the same or such other date, not later
than the fifth business day thereafter, as the Representatives and the Company
and the Attorneys-in-Fact may agree upon in writing or, in the case of the
Option Shares, on the date and at the time and place specified by the
Representatives in the written notice of the Underwriters' election to purchase
such Option Shares. The time and date of such payment for the Underwritten
Shares is referred to herein as the "Closing Date" and the time and date for
such payment for the Option Shares, if other than the Closing Date, is referred
to herein as the "Additional Closing Date".
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Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date in definitive form registered in such
names and in such denominations as the Representatives 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, with any transfer taxes payable in
connection with the sale of the Shares duly paid by the Company or the Selling
Stockholders, as the case may be. The certificates for the Shares will be made
available for inspection and packaging by the Representatives at the office of
▇.▇. ▇▇▇▇▇▇ Securities Inc. set forth above 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.
(d) The Company acknowledges and agrees that the Underwriters are
acting solely in the capacity of an arm's length contractual counterparty to the
Company with respect to the offering of Shares contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representatives nor the other Underwriters are
advising the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company shall consult
with its own advisors concerning such matters and shall be responsible for
making their own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the Underwriters of
the Company, the transactions contemplated hereby or other matters relating to
such transactions will be performed solely for the benefit of the Underwriters
and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, complied in all material respects
with the Securities Act and did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions 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 in any Preliminary Prospectus.
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(b) Time of Sale Information. The Time of Sale Information, at the Time of
Sale did not, and at the Closing Date will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for
use in such Time of Sale Information. No statement of material fact included in
the Prospectus has been omitted from the Time of Sale Information and no
statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus
and the Prospectus, the Company (including its agents and representatives, other
than the Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any "written communication" (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or solicitation of an
offer to buy the Shares (each such communication by the Company or its agents
and representatives (other than a communication referred to in clause (i)
below), an "Issuer Free Writing Prospectus") other than (i) any written
communication not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or any rule under the Securities Act (including, without
limitation, Rule 134 under the Securities Act) or (ii) the documents listed on
Annex B hereto, electronic roadshows, if any, furnished to you before first use
and other written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all
material respects with the Securities Act, has been filed in accordance with the
Securities Act (to the extent required by Rule 433(d) thereunder) and, when
taken together with the Preliminary Prospectus accompanying, or delivered prior
to delivery of, such Issuer Free Writing Prospectus, did not, and at the Closing
Date will not, contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to any statements
or omissions made in each such Issuer Free Writing Prospectus in reliance upon
and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for
use in any Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement has
been declared effective by the Commission. No order suspending the effectiveness
of the Registration Statement has been issued by the Commission and, to the
Company's knowledge, no proceeding for that purpose or
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pursuant to Section 8A of the Securities Act against the Company or related to
the offering has been initiated or threatened by the Commission. As of the
applicable effective date of the Registration Statement and any amendment
thereto, the Registration Statement complied and, on each of the Closing Date
and the Additional Closing Date, will comply in all material respects with the
Securities Act, and 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 in order to make the statements therein not misleading; and as of the
date of the Prospectus and any amendment or supplement thereto and as of the
Closing Date and as of the Additional Closing Date, as the case may be, the
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement or the Prospectus and any amendment or supplement thereto.
(e) Financial Statements. The financial statements and the related notes
thereto of the Company and its consolidated subsidiaries included in the
Registration Statement, the Time of Sale Information and the Prospectus comply
in all material respects as to form with the applicable accounting requirements
of the Securities Act and present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods specified;
such financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a consistent
basis throughout the periods covered thereby, provided, however, that the
interim statements that are unaudited are subject to normal year-end adjustments
and do not contain certain footnotes required by generally accepted accounting
principles in the United States, and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein; and the other financial information included in the Registration
Statement, the Time of Sale Information and the Prospectus set forth under the
captions "Prospectus Summary--Summary consolidated financial data," "Selected
consolidated financial data," and "Unaudited pro forma consolidated financial
statements" has been derived from the accounting records of the Company and its
subsidiaries and presents fairly the information shown thereby; and the pro
forma financial information and the related notes thereto included in the
Registration Statement, the Time of Sale Information and the Prospectus has been
prepared in accordance with the requirements of the Securities Act applicable to
pro forma financial statements, and the assumptions underlying such pro forma
financial information are reasonable.
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(f) No Material Adverse Change. Since the date of the most recent financial
statements of the Company included in the Registration Statement, the Time of
Sale Information and the Prospectus, (i) there has not been any change in the
capital stock or long-term debt of the Company or any of its Significant
Subsidiaries, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, financial
position, stockholders' equity or results of operations of the Company and its
Significant Subsidiaries taken as a whole; (ii) neither the Company nor any of
its Significant Subsidiaries has entered into any transaction or agreement that
is material to the Company and its Significant Subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is material to
the Company and its Significant Subsidiaries taken as a whole; and (iii) neither
the Company nor any of its Significant Subsidiaries has sustained any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any material labor
disturbance or dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority, except in each case as otherwise
disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus.
(g) Organization and Good Standing. The Company and each of its Significant
Subsidiaries have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction in
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
management, financial position, stockholders' equity or results of operations of
the Company and its Significant Subsidiaries taken as a whole (a "Material
Adverse Effect"). At the Closing Date, the Company's only subsidiaries are those
listed in Exhibit 21.1 to the Registration Statement. The subsidiaries listed in
Schedule III to this Agreement are the only significant subsidiaries of the
Company (the "Significant Subsidiaries").
(h) Capitalization. The Company has an authorized capitalization as set
forth in the Registration Statement, the Time of Sale Information and the
Prospectus under the heading "Capitalization"; all the outstanding shares of
capital stock of the Company (including the Shares to be sold by the Selling
Stockholders) have been duly authorized and validly issued and are fully paid
and non-assessable and are not subject to any pre-emptive or similar rights;
except as described in or expressly contemplated by the Time of Sale Information
and the
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Prospectus, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interest
in the Company or any of its Significant Subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock of the Company or any such Significant Subsidiary,
any such convertible or exchangeable securities or any such rights, warrants or
options; the capital stock of the Company conforms in all material respects to
the description thereof contained in the Registration Statement, the Time of
Sale Information and the Prospectus; and all the outstanding shares of capital
stock or other equity interests of each subsidiary of the Company have been duly
authorized and validly issued, are fully paid and non-assessable (except, in the
case of any foreign subsidiary, for directors' qualifying shares) and, except as
disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus, are owned directly or indirectly by the Company, free and clear of
any lien, charge, encumbrance, security interest, restriction on voting or
transfer or any other claim of any third party.
(i) Due Authorization. The Company has full corporate right, power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and thereunder; and all corporate action required to be taken for the
consummation of the transactions contemplated hereby has been duly and validly
taken.
(j) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(k) The Shares. The Shares to be issued and sold by the Company hereunder
have been duly authorized by the Company and, when issued and delivered and paid
for as provided herein, will be validly issued and will be fully paid and
nonassessable and will conform to the descriptions thereof in the Time of Sale
Information and the Prospectus; and the issuance of the Shares is not subject to
any preemptive or similar rights.
(l) No Violation or Default. Neither the Company nor any of its Significant
Subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition by the Company or
any of its Significant Subsidiaries contained in any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company
or any of its Significant Subsidiaries is a party or, to the Company's
knowledge, by which the Company or any of its Significant Subsidiaries is bound
or to which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject; or (iii) in violation of any law or statute
or any judgment, order, rule or
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regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material
Adverse Effect.
(m) No Conflicts. The execution, delivery and performance by the Company of
this Agreement, the issuance and sale of the Shares to be sold by the Company
hereunder and the consummation by the Company of the transactions contemplated
by this Agreement will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Significant Subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Significant Subsidiaries is subject, (ii) result in any violation
of the provisions of the charter or by-laws or similar organizational documents
of the Company or any of its Significant Subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority, except, in the
case of clauses (i) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(n) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority (other than such as has already been received or made or
shall be received or made prior to the Closing Date) is required for the
execution, delivery and performance by the Company of this Agreement, the
issuance and sale of the Shares to be sold by the Company hereunder and the
consummation by the Company of the transactions contemplated by this Agreement,
except for the registration of the Shares under the Securities Act, the
inclusion of the Shares for quotation on the Nasdaq National Market and such
consents, approvals, authorizations, orders and registrations or qualifications
as may be required under applicable state securities laws or by the bylaws or
rules of the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the purchase and distribution of the Shares by the Underwriters.
(o) Legal and Regulatory Proceedings. Except as described in the
Registration Statement, the Time of Sale Information and the Prospectus, there
are no legal, governmental or regulatory investigations, actions, suits or
proceedings (whether within or outside of the U.S.) pending to which the Company
or any of its subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is the subject that, individually or in the aggregate,
if determined adversely to the Company or any of its subsidiaries, would
reasonably be expected by the Company to have a Material Adverse Effect
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or materially and adversely affect the ability of the Company to perform its
obligations under the this Agreement; to the Company's knowledge, no such
investigations, actions, suits or proceedings are threatened or contemplated by
any U.S. or foreign governmental or regulatory authority or threatened by
others; and (i) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities
Act to be described in the Registration Statement, the Time of Sale Information
and the Prospectus that are not so described in the Registration Statement, the
Time of Sale Information and the Prospectus and (ii) there are no contracts or
other documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement or described in the Registration
Statement or the Prospectus that are not so filed as exhibits to the
Registration Statement or described in the Registration Statement, the Time of
Sale Information and the Prospectus.
(p) Independent Accountants. BDO ▇▇▇▇▇▇▇, LLP, who have certified certain
financial statements of the Company and its subsidiaries, are an independent
registered public accounting firm with respect to the Company and its
subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Accounting Oversight Board (United States) and as
required by the Securities Act.
(q) Title to Real and Personal Property. Except as described in the
Registration Statement, the Time of Sale Information and the Prospectus, the
Company and its Significant Subsidiaries have good and marketable title in fee
simple to, or have valid rights to lease or otherwise use, all items of real and
personal property that are material to the respective businesses of the Company
and its Significant Subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except those that
(i) do not materially interfere with the use made and proposed to be made of
such property by the Company and its Significant Subsidiaries or (ii) would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(r) Title to Intellectual Property. The Company and its Significant
Subsidiaries own, possess or can acquire on reasonable terms adequate rights to
use all material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service ▇▇▇▇ registrations, copyrights, licenses
and know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) (collectively,
the "Intellectual Property") necessary for the conduct of their respective
businesses, except to the extent that the failure to own or possess adequate
rights to use such Intellectual Property would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; and the
Company and its Significant Subsidiaries have not received any notice of any
claim of infringement
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or conflict with any such rights of others, which infringement or conflict, if
the subject of an unfavorable decision, would result in a Material Adverse
Effect.
(s) No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among the Company or any of its subsidiaries, on the one hand,
and the directors, officers, stockholders, customers or suppliers of the Company
or any of its subsidiaries, on the other, that is required by the Securities Act
to be described in the Registration Statement and the Prospectus and that is not
so described in such documents and in the Time of Sale Information.
(t) Investment Company Act. The Company is not and, after giving effect to
the offering and sale of the Shares and the application of the proceeds thereof
as described in the Registration Statement, the Time of Sale Information and the
Prospectus, will not be required to register as an "investment company" or an
entity "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder.
(u) Taxes. The Company and its subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed through the
date hereof and paid all taxes shown thereon through the date hereof, to the
extent that such taxes have become due and are not being contested in good
faith; and except as otherwise disclosed in the Registration Statement, the Time
of Sale Information and the Prospectus, there is no tax deficiency that has
been, or could reasonably be expected to be, asserted against the Company or any
of its subsidiaries or any of their respective properties or assets which has
had, or would have, individually or in the aggregate, a Material Adverse Effect.
(v) Licenses and Permits. The Company and its Significant Subsidiaries
possess all licenses, certificates, permits and other authorizations issued by,
and have made all declarations and filings with, the appropriate federal, state,
local or foreign governmental or regulatory authorities that are necessary for
the ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement, the Time of
Sale Information and the Prospectus, except where the failure to possess or make
the same would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect; and except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, neither the Company
nor any of its Significant Subsidiaries has received notice of any revocation or
materially adverse modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license, certificate,
permit or authorization will not be renewed in the ordinary course, except where
such revocation or modification of any such license, certificate, permit or
authorization or the failure to obtain any such renewal would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
13
(w) No Labor Disputes. No material labor disturbance by or dispute with
employees of the Company or any of its Significant Subsidiaries exists or, to
the knowledge of the Company, is contemplated or threatened.
(x) Compliance with Environmental Laws. The Company and its subsidiaries (i)
are in compliance with any and all applicable federal, state, local and foreign
laws, rules, regulations, decisions and orders relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, "Environmental Laws"); (ii)
have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except in any such case for any such failure to comply, or failure to receive
required permits, licenses or approvals, or liability as would not, individually
or in the aggregate, have a Material Adverse Effect.
(y) Compliance with ERISA. Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the Company or
any of its affiliates for employees or former employees of the Company and its
affiliates has been maintained in compliance in all material respects with its
terms and the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Internal Revenue Code of
1986, as amended (the "Code"); no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to
any such plan excluding transactions effected pursuant to a statutory or
administrative exemption; and for each such plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA, no "accumulated
funding deficiency" as defined in Section 412 of the Code has been incurred,
whether or not waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions) exceeds the
present value of all benefits accrued under such plan determined using
reasonable actuarial assumptions.
(z) Accounting Controls. The Company and its subsidiaries maintain systems
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the
14
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) Insurance. The Company and its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses, including
business interruption insurance, which insurance is in amounts and insures
against such losses and risks as are adequate in all material respects to
protect the Company and its subsidiaries and their respective businesses; and
neither the Company nor any of its subsidiaries has (i) received notice from any
insurer or agent of such insurer that capital improvements or other expenditures
are required or necessary to be made in order to continue such insurance or (ii)
any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to continue its
business.
(bb) No Unlawful Payments. Neither the Company nor any of its subsidiaries
nor, to the knowledge of the Company, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company or any of its
subsidiaries has during the last five years (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(cc) No Restrictions on Subsidiaries. No subsidiary of the Company is
currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to
the Company, from making any other distribution on such subsidiary's capital
stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary's properties or
assets to the Company or any other subsidiary of the Company, except in any such
case for any such prohibition of payment or distribution as would not,
individually or in the aggregate, have a Material Adverse Effect.
(dd) No Broker's Fees. Neither the Company nor any of its subsidiaries is a
party to any contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against the Company or any
of its subsidiaries or any Underwriter for a brokerage commission, finder's fee
or like payment in connection with the offering and sale of the Shares.
(ee) No Registration Rights. Except as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus or as waived prior to
the date hereof, no person has the right to require the Company or any of its
15
subsidiaries to register any securities for sale under the Securities Act by
reason of the filing of the Registration Statement with the Commission or the
issuance and sale of the Shares to be sold by the Company hereunder or, to the
knowledge of the Company, the sale of the Shares to be sold by the Selling
Stockholders hereunder.
(ff) No Stabilization. The Company has not taken, directly or indirectly,
any action designed to or that would reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Shares.
(gg) Business With Cuba. The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to
doing business with the Government of Cuba or with any person or affiliate
located in Cuba.
(hh) Margin Rules. Neither the issuance, sale and delivery of the Shares nor
the application of the proceeds thereof by the Company as described in the
Registration Statement, the Time of Sale Information and the Prospectus will
violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System or any other regulation of such Board of Governors.
(ii) Forward-Looking Statements. No forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21E of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act")) contained in the
Registration Statement, the Time of Sale Information and the Prospectus has been
made or reaffirmed without a reasonable basis or has been disclosed other than
in good faith.
(jj) Statistical and Market Data. Nothing has come to the attention of the
Company that has caused the Company to believe that the statistical and
market-related data included in the Registration Statement, the Time of Sale
Information and the Prospectus is not based on or derived from sources that are
reliable and accurate in all material respects.
(kk) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the part of the
Company or any of the Company's directors or officers, in their capacities as
such, to comply with Section 402, related to loans, of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002 and the rules and regulations promulgated in connection therewith (the
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act").
(ll) Directed Share Program. Each of the Registration Statement, the Time of
Sale Information, the Prospectus and the most recent Preliminary Prospectus
comply, and any amendments or supplements thereto will comply, with any
applicable laws or regulations of jurisdictions in which the Time of Sale
16
Information, the Prospectus or the most recent Preliminary Prospectus, as
amended or supplemented, if applicable, are distributed in connection with the
Directed Share Program; no consent, approval, authorization, order or
qualification of or with any court or governmental or regulatory authority,
other than those already obtained, is required in connection with the offering
of the Directed Shares in any jurisdiction where the Directed Shares are being
offered, except, in each of the foregoing cases, as would not, individually or
in the aggregate, (A) materially and adversely affect the ability of the Company
to perform its obligations under this Agreement or (B) have a Material Adverse
Effect; the Company has not offered, or caused ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
to offer, Shares to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business with the
Company, or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
The Company has not distributed and, prior to the later to occur of the
Closing Date or an Additional Closing Date, as the case may be, and completion
of the distribution of the Shares, will not distribute any offering materials in
connection with the offering and sale of the Shares other than the Time of Sale
Information and the Prospectus and, in connection with the Directed Share
Program, the enrollment materials prepared by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
4. Representations and Warranties of the Selling Stockholders. Each of
the Selling Stockholders, severally and not jointly, represents and warrants to
each Underwriter that:
(a) Required Consents; Authority. All consents, approvals,
authorizations and orders necessary for the execution and delivery by such
Selling Stockholder of this Agreement, the Power of Attorney (as defined below)
and the Custody Agreement (as defined below), and for the sale and delivery of
the Shares to be sold by such Selling Stockholder hereunder, have been obtained;
and such Selling Stockholder has full right, power and authority to enter into
this Agreement, the Power of Attorney and the Custody Agreement and to sell,
assign, transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder; this Agreement, the Power of Attorney and the Custody Agreement have
each been duly authorized, executed and delivered by or on behalf of such
Selling Stockholder.
(b) No Conflicts. The execution, delivery and performance by or on
behalf of such Selling Stockholder of this Agreement, the Power of Attorney and
the Custody Agreement, the sale of the Shares to be sold by such Selling
Stockholder and the consummation by such Selling Stockholder of the
17
transactions herein and therein contemplated will not (i) conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of such Selling Stockholder
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound or to which any of the property or assets of
such Selling Stockholder is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of such
Selling Stockholder or (iii) result in the violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory agency, except, in the case of clauses (i) and (iii)
above, for any such default or violation that would not, individually or in the
aggregate, materially and adversely affect the ability of such Selling
Stockholder to perform its obligations under this Agreement.
(c) Title to Shares. Such Selling Stockholder has good and valid title
to the Shares to be sold at the Closing Date or the Additional Closing Date, as
the case may be, by such Selling Stockholder hereunder, free and clear of all
liens, encumbrances, equities or adverse claims; such Selling Stockholder will
have, immediately prior to the Closing Date or the Additional Closing Date, as
the case may be, good and valid title to the Shares to be sold at the Closing
Date or the Additional Closing Date, as the case may be, by such Selling
Stockholder, free and clear of all liens, encumbrances, equities or adverse
claims; and, upon delivery of such Shares and payment therefor pursuant hereto,
good and valid title to such Shares, free and clear of all liens, encumbrances,
equities or adverse claims, will pass to the several Underwriters.
(d) No Stabilization. Such Selling Stockholder has not taken and will
not take, directly or indirectly, any action designed to or that would
reasonably be expected to cause or result in any stabilization or manipulation
of the price of the Shares.
(e) Registration Statement, Time of Sale Information and Prospectus. As
of the applicable effective date of the Registration Statement and any amendment
thereto, the Registration Statement complied and will comply in all material
respects with the Securities Act, and 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 in order to make the statements therein not
misleading; as of the Time of Sale, the Time of Sale Information did not, and at
the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and as of the date of the Prospectus and any amendment or supplement thereto and
as of the Closing
18
Date and as of the Additional Closing Date, as the case may be, the Prospectus
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that such Selling Stockholder makes no
representation and warranty with respect to any statements or omissions made in
reliance upon and conformity with information furnished to the Selling
Stockholders or the Company in writing by the Underwriters through the
Representatives expressly for use in the Registration Statement, the Time of
Sale Information or the Prospectus or any amendment or supplement thereto; and,
provided further that the representations and warranties given in this paragraph
by each Selling Stockholder only apply to statements or omissions in the
Registration Statement, the Time of Sale Information or the Prospectus and any
amendment or supplement thereto made in reliance upon information furnished to
the Company or the Underwriters in writing by or on behalf of such Selling
Stockholder expressly for use therein.
(f) Material Information. As of the date hereof, as of the Closing Date
and as of the Additional Closing Date, as the case may be, the sale of the
Securities by such Selling Stockholder is not and will not be prompted by any
material information concerning the Company which is not set forth in the
Registration Statement, the Time of Sale Information or the Prospectus.
Each of the Selling Stockholders represents and warrants that he, she
or it has instructed the transfer agent to register the Shares in the name of
Continental Stock Transfer & Trust Company, as custodian for the Seller (the
"Custodian"), pursuant to a Letter of Transmittal and Custody Agreement (the
"Custody Agreement"), in the form heretofore furnished to you, duly executed and
delivered by such Selling Stockholder to the Custodian, and that such Selling
Stockholder has duly executed and delivered a Selling Stockholder's Irrevocable
Power of Attorney (the "Power of Attorney"), in the form heretofore furnished to
you, appointing the person or persons specified therein, and each of them, as
such Selling Stockholder's Attorneys-in-Fact (the "Attorneys-in-Fact" or any one
of them an "Attorney-in-Fact") with authority to execute and deliver this
Agreement on behalf of such Selling Stockholder, to determine the purchase price
to be paid by the Underwriters to the Selling Stockholders as provided herein,
to authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the Custody
Agreement.
Each of the Selling Stockholders specifically agrees that the Shares
instructed by such Selling Stockholder to be registered in the name of the
Custodian and held in custody for such Selling Stockholder under the Custody
Agreement, are subject to the interests of the Underwriters hereunder, and that
the
19
arrangements made by such Selling Stockholder for such custody, and the
appointment by such Selling Stockholder of the Attorneys-in-Fact by the Power of
Attorney, are to that extent irrevocable. Each of the Selling Stockholders
specifically agrees that the obligations of such Selling Stockholder hereunder
shall not be terminated by operation of law, whether by the death or incapacity
of any individual Selling Stockholder, or, in the case of an estate or trust, by
the death or incapacity of any executor or trustee or the termination of such
estate or trust, or in the case of a partnership, corporation or similar
organization, by the dissolution of such partnership, corporation or
organization, or by the occurrence of any other event. If any individual Selling
Stockholder or any such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if any such partnership,
corporation or similar organization should be dissolved, or if any other such
event should occur, before the delivery of the Shares hereunder, certificates
representing such Shares shall be delivered by or on behalf of such Selling
Stockholder in accordance with the terms and conditions of this Agreement and
the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to
the Powers of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of whether
or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received
notice of such death, incapacity, termination, dissolution or other event.
5. Further Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Filing of the Final Prospectus and Issuer Free Writing Prospectus. The
Company will file (i) the final Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rule 430A under the Securities Act and (ii)
any Issuer Free Writing Prospectus to the extent required by Rule 433(d) under
the Securities Act; and the Company will furnish copies of the Prospectus and
each Issuer Free Writing Prospectus (to the extent not previously delivered) to
the Underwriters in New York City prior to 10:00 A.M., New York City time, on
the business day next succeeding the date of this Agreement in such quantities
as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the
Representatives, three signed copies of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and
consents filed therewith; and (ii) to each Underwriter (A) a conformed copy of
the Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period, as many copies
of the Prospectus (including all amendments and supplements thereto) and each
Issuer Free Writing Prospectus as the Representatives may reasonably request. As
used herein, the term "Prospectus Delivery Period" means such period of time
after the first date of the public offering of the Shares as in the opinion of
counsel
20
for the Underwriters a prospectus relating to the Shares is required by law to
be delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before
using, authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, the Company will furnish to the Representatives and
counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and will not use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any
such proposed amendment or supplement to which the Representatives reasonably
object, unless in the judgment of the Company and its counsel, and after
notification to the Representatives, such amendment is required by law. Neither
the Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 7 hereof.
(d) Notice to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when the
Registration Statement has become effective; (ii) when any amendment to the
Registration Statement has been filed or becomes effective; (iii) when any
supplement to the Prospectus or any Issuer Free Writing Prospectus or any
amendment to the Prospectus has been filed; (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from the Commission
relating to the Registration Statement or any other request by the Commission
for any additional information; (v) of the issuance by the Commission of any
order suspending the effectiveness of the Registration Statement or preventing
or suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose known to the
Company; (vi) of the occurrence of any event within the Prospectus Delivery
Period as a result of which the Prospectus, the Time of Sale Information or any
Issuer Free Writing Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and (vii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of the Shares for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and the Company will use its commercially
reasonable efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Shares and, if any such order is issued, to obtain as soon
as possible the withdrawal thereof.
21
(e) Ongoing Compliance of the Prospectus. (i) If during the Prospectus
Delivery Period (A) any event shall occur or condition shall exist as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading or (B) it
is necessary to amend or supplement the Prospectus to comply with the Securities
Act, the Company will promptly notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission and
furnish to the Underwriters and to such dealers as the Representatives may
designate, 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 under which they were made, be misleading or
so that the Prospectus will comply with law and (ii) if at any time prior to the
Closing Date (A) any event shall occur or condition shall exist as a result of
which the Time of Sale Information, as then amended or supplemented, would
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances, not misleading or (B) it is necessary to amend or supplement the
Time of Sale Information to comply with law, the Company will immediately notify
the Underwriters thereof and forthwith prepare and, subject to paragraph (c)
above, file with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representatives may designate, such
amendments or supplements to the Time of Sale Information as may be necessary so
that the statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be misleading or so
that the Time of Sale Information will comply with law.
(f) Blue Sky Compliance. The Company will cooperate with the Representatives
and their counsel in endeavoring to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request and will continue such qualifications in effect so long
as required for distribution of the Shares; provided that the Company shall not
be required to (i) qualify as a foreign corporation or other entity or as a
dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in
any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) Earnings Statement. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earnings
statement (which need not be audited) that satisfies the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning with the first
22
fiscal quarter of the Company occurring after the "effective date" (as defined
in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 180 days after the date of the initial
public offering of the Shares, the Company will not (i) offer, pledge, publicly
announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Stock or any securities convertible into or
exercisable or exchangeable for Stock or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Stock or such other securities, in
cash or otherwise, without the prior written consent of the Representatives,
other than (A) the Shares to be sold hereunder, (B) any shares of Stock of the
Company issued upon the exercise of options granted under existing employee
stock option plans or the Company's employee stock purchase plan or (C) the
issuance of any shares of Common Stock at least 90 days after the date of the
Prospectus, or any agreement entered into at least 90 days after the date of the
Prospectus to issue shares of Common Stock, in connection with an acquisition of
stock or assets of another business, by merger or otherwise, provided that such
shares in the aggregate do not exceed 10% of the number of shares of Common
Stock outstanding immediately following the sale of the Shares hereunder; and
provided further that the Company shall have received from each recipient of
such shares a lock-up letter in substantially the form of Annex E hereto.
Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day
restricted period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of
the 180-day restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
180-day period, the restrictions imposed by this Agreement, unless waived or
otherwise approved by the Representatives in writing, shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release, the public announcement of the material news or the occurrence
of the material event; provided, however, that this provision will not apply if
the safe harbor provided by Rule 139 promulgated under the Securities Act is
available and the Company's shares of Common Stock are "actively traded
securities," as defined in Regulation M, 17 C.F.R. 242.101(c)(1).
(i) Use of Proceeds. The Company will apply the net proceeds from the sale
of the Shares as described in the Registration Statement, the Time of Sale
Information and the Prospectus under the heading "Use of proceeds."
(j) No Stabilization. The Company will not take, directly or indirectly, any
action designed to or that would reasonably be expected to cause or result in
any stabilization or manipulation of the price of the Shares.
23
(k) Exchange Listing. The Company will use its commercially reasonable
efforts to list for quotation the Shares on the National Association of
Securities Dealers Automated Quotations National Market (the "Nasdaq National
Market").
(l) Reports. So long as the Shares are outstanding, the Company will furnish
to the Representatives, as soon as they are available, copies of all reports or
other communications (financial or other) furnished to all holders of the
Shares, and copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange or automatic quotation
system.
(m) Record Retention. The Company will, in compliance with the rules and
regulations of the Securities Act and pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433(d) under the
Securities Act.
(n) Filings. The Company will file with the Commission such reports as may
be required by Rule 463 under the Securities Act.
(o) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Compliance. Upon the Closing Date, the Company and its
subsidiaries will comply in all material respects with all provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act that are effective with respect to the Company and such
subsidiaries as of such time, and use its commercially reasonable efforts to
cause the officers and directors of the Company and its subsidiaries, as the
case may be, in their respective capacities as such, to comply with the
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(p) Restriction of Directed Shares. In connection with the Directed Share
Program, the Company will ensure that the Directed Shares will be restricted to
the extent required by the NASD or the rules of such association from sale,
transfer, assignment, pledge or hypothecation for a period of 180 days following
the date of this Agreement, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. will notify the
Company as to which Directed Share Participants will need to be so restricted.
At the request of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., the Company will direct the
transfer agent to place stop transfer restrictions upon such securities for such
period of time.
(q) Directed Shares Compliance. The Company will comply in all material
respects with all applicable securities and other applicable laws, rules and
regulations in each jurisdiction in which the Directed Shares are offered in
connection with the Directed Share Program.
24
6. Further Agreements of the Selling Stockholders. Each of the Selling
Stockholders, severally and not jointly, covenants and agrees with each
Underwriter that:
(a) Clear Market. For a period of 180 days after the date of the
initial public offering of the Shares, such Selling Stockholder will not (i)
offer, pledge, publicly announce the intention to sell, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, any shares of the Stock or any securities
convertible into or exercisable or exchangeable for the Stock or (ii) enter into
any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of the Stock
or such other securities, in cash or otherwise or (iii) make any demand for or
exercise any right with respect to the registration of any shares of the Stock
or any security convertible into or exercisable or exchangeable for the Stock
without the prior written consent of the Representatives, in each case other
than the Shares to be sold by such Selling Stockholder hereunder.
Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day
restricted period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the expiration of
the 180-day restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
180-day period, the restrictions imposed by this Agreement, unless waived or
otherwise approved by the Representatives in writing, shall continue to apply
until the expiration of the 18-day period beginning on the issuance of the
earnings release, the public announcement of the material news or the occurrence
of the material event; provided, however, that this provision will not apply if
the safe harbor provided by Rule 139 promulgated under the Securities Act is
available and the Company's shares of Common Stock are "actively traded
securities," as defined in Regulation M, 17 C.F.R. 242.101(c)(1). The foregoing
restrictions in this Section 6(a) shall not apply to any transfer of shares of
Stock (a) to the Underwriters pursuant to this Agreement; (b) as a bona fide
gift or gifts; (c) to any trust for the sole benefit of the Selling Stockholder
or the Selling Stockholder's family; (d) by will or intestacy to the Selling
Stockholder's legal representative, heir or legatee; (e) if the Selling
Stockholder is a partnership, corporation, limited liability company or similar
entity, (1) to another partnership, corporation, limited liability company or
similar entity if the transferee and such Selling Stockholder are affiliates or
(2) as a distribution to partners, stockholders or members of such Selling
Stockholder; or (f) acquired in the public market on or after the date of the
Prospectus filed by the Company with the Commission in connection with the
Company's initial public offering pursuant to this Agreement; provided that, in
the case of any transfer pursuant to clauses (b) through (e), (x) each donee,
25
transferee, distributee or recipient shall execute and deliver to the
Representatives a form of "lock-up" agreement substantially in the form of Annex
E hereto; and (y) no transfer includes a disposition for value; and, provided
further that, in the case of any transfer pursuant to clauses (b) through (f),
no filing by any party under the Securities Act or the Exchange Act is required
nor voluntarily made in connection with any such donation, transfer or
distribution (other than a filing on a Form 5 made after the expiration of the
180-day restricted period specified above in connection with a donation or
transfer pursuant to clause (b)).
(b) Tax Form. Such Selling Stockholder will deliver to the
Representatives prior to or at the Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other applicable form or
statement specified by the Treasury Department regulations in lieu thereof) in
order to facilitate the Underwriters' documentation of their compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated.
7. Certain Agreements of the Underwriters. Each Underwriter severally
represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or
participate in the planning for use of, any "free writing prospectus", as
defined in Rule 405 under the Securities Act (which term includes use of any
written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release
issued by the Company) other than (i) a free writing prospectus that contains no
"issuer information" (as defined in Rule 433(h)(2) under the Securities Act)
that was not included (including through incorporation by reference) in the
Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus,
(ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant
to Section 3(c) or Section 5(c) above, or (iii) any free writing prospectus
prepared by such underwriter and approved by the Company in advance in writing
(each such free writing prospectus referred to in clauses (i) or (iii), an
"Underwriter Free Writing Prospectus"), and in each case such Underwriter Free
Writing Prospectus would not result in the Company being required to file it
with the Commission under Rule 433(d) where the Company otherwise would not be
required to make such filing thereunder but for the action of the Underwriter.
(b) It has not and will not distribute any Underwriter Free Writing
Prospectus referred to in clause (a)(i) in a manner reasonably designed to lead
to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the
Company, use any free writing prospectus that contains the final terms of the
26
Shares unless such terms have previously been included in a free writing
prospectus filed with the Commission; provided that Underwriters may use a term
sheet substantially in the form of Annex A hereto without the consent of the
Company; provided further that any Underwriter using such term sheet shall
notify the Company, and provide a copy of such term sheet to the Company, prior
to, or substantially concurrently with, the first use of such term sheet.
(d) It is not subject to any pending proceeding under Section 8A of the
Securities Act with respect to the offering and sale of the Shares (and will
promptly notify the Company if any such proceeding against it is initiated
during the Prospectus Delivery Period).
8. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase the Underwritten Shares on the Closing Date or the
Option Shares on the Additional Closing Date, as the case may be, as provided
herein is subject to the performance by the Company and each of the Selling
Stockholders of their respective covenants and other obligations hereunder and
to the following additional conditions:
(a) Registration Compliance; No Stop Order. The Registration Statement (or
if a post-effective amendment thereto is required to be filed under the
Securities Act, such post-effective amendment) shall have become effective, and
the Representatives shall have received notice thereof, on the date hereof. No
order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceeding for such purpose or pursuant to Section 8A under the
Securities Act shall be pending before or threatened by the Commission. The
Prospectus and each Issuer Free Writing Prospectus shall have been timely filed
with the Commission under the Securities Act (in the case of an Issuer Free
Writing Prospectus, to the extent required by Rule 433(d) under the Securities
Act) and in accordance with Section 5(a) hereof; and all requests by the
Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The respective representations and
warranties of the Company and the Selling Stockholders contained herein shall be
true and correct on the date hereof and on and as of the Closing Date or the
Additional Closing Date, as the case may be; and the statements of the Company
and its officers and of each of the Selling Stockholders made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date or the Additional Closing Date, as the case may be.
(c) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded any
debt securities or preferred stock of or guaranteed by the Company or any of its
27
Significant Subsidiaries by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of any debt securities or preferred stock of
or guaranteed by the Company or any of its Significant Subsidiaries (other than
an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. Subsequent to the execution and delivery of
this Agreement, no event or condition of a type described in Section 3(f) hereof
shall have occurred or shall exist, which event or condition is not described in
the Time of Sale Information (excluding any amendment or supplement thereto) and
the Prospectus (excluding any amendment or supplement thereto) and the effect of
which in the reasonable judgment of the Representatives makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Shares on
the Closing Date or the Additional Closing Date, as the case may be, on the
terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(e) Officers' Certificate. The Representatives shall have received on and as
of the Closing Date or the Additional Closing Date, as the case may be, a
certificate (i) of the chief financial officer or chief accounting officer of
the Company and one additional senior executive officer of the Company who is
satisfactory to the Representatives (A) confirming that such officers have
carefully reviewed the Registration Statement, the Time of Sale Information and
the Prospectus and, to the knowledge of such officers, the representation set
forth in Section 3(b) hereof is true and correct, (B) confirming that the other
representations and warranties of the Company in this Agreement are true and
correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date and (C) to the effect set forth in paragraphs (a), (c) and (d)
above and (ii) of the Selling Stockholders, in form and substance reasonably
satisfactory to the Representatives, (A) confirming that the representation set
forth in Section 4(e) hereof is true and correct and (B) confirming that the
other representations and warranties of such Selling Stockholders in this
Agreement are true and correct and that such Selling Stockholders have complied
with all agreements and satisfied all conditions on their part to be performed
or satisfied hereunder at or prior to such Closing Date.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date
or the Additional Closing Date, as the case may be, BDO ▇▇▇▇▇▇▇, LLP shall have
furnished to the Representatives, at the request of the Company, letters, dated
the respective dates of delivery thereof and addressed to the Underwriters, in
form and substance reasonably satisfactory to the Representatives, containing
statements and information of the type customarily included in accountants'
28
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement, the Time
of Sale Information and the Prospectus; provided that the letter delivered on
the Closing Date or the Additional Closing Date, as the case may be, shall use a
"cut-off" date no more than three business days prior to such Closing Date or
such Additional Closing Date, as the case may be.
(g) Opinion of Counsel for the Company. (i) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP,
outside counsel for the Company, (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President and
General Counsel, (iii) the Company's North Carolina counsel, (iv) the Company's
Canada counsel and (v) the Company's U.K. counsel shall have furnished to the
Representatives, at the request of the Company, their respective written
opinions, dated the Closing Date or the Additional Closing Date, as the case may
be, and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Annex C-1
through C-5 hereto.
(h) Opinion of Counsel for the Selling Stockholders. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, P.C., counsel for the Selling Stockholders, shall have furnished to
the Representatives, at the request of the Selling Stockholders, its written
opinion, dated the Closing Date or the Additional Closing Date, as the case may
be, and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Annex D hereto.
(i) Opinion of Counsel for the Underwriters. The Representatives shall have
received on and as of the Closing Date or the Additional Closing Date, as the
case may be, an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
with respect to such matters as the Representatives may reasonably request, and
such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued by
any federal, state or foreign governmental or regulatory authority that would,
as of the Closing Date or the Additional Closing Date, as the case may be,
prevent the issuance or sale of the Shares; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date or the Additional Closing Date, as the case may be, prevent the
issuance or sale of the Shares.
(k) Good Standing. The Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, satisfactory
evidence of the good standing of the Company and its subsidiaries in their
respective jurisdictions of organization and their good standing as foreign
entities in such other jurisdictions as the Representatives may reasonably
request,
29
in each case in writing or any standard form of telecommunication from the
appropriate governmental authorities of such jurisdictions.
(l) Exchange Listing. The Shares to be delivered on the Closing Date or the
Additional Closing Date, as the case may be, shall have been approved for
quotation on the Nasdaq National Market, subject only to official notice of
issuance.
(m) Lock-up Agreements. The "lock-up" agreements, each substantially in the
form of Annex E hereto, between you and certain stockholders, officers and
directors of the Company, and between you and Directed Share Participants,
relating to sales and certain other dispositions of shares of Stock or certain
other securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date or the Additional Closing Date, as the
case may be.
(n) Additional Documents. On or prior to the Closing Date or the Additional
Closing Date, as the case may be, the Company and the Selling Stockholders shall
have furnished to the Representatives such further certificates and documents as
the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
9. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. The Company agrees
to indemnify and hold harmless each Underwriter, its affiliates, directors and
officers, partners and each person, if any, who controls such Underwriter within
the meaning of 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, reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement
thereto), any Issuer Free Writing Prospectus or any Time of Sale Information
(including any Time of Sale Information that has subsequently been amended), or
caused by any omission or
30
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in subsection (c) below.
The Company also agrees to indemnify and hold harmless, Credit Suisse
Securities (USA) LLC, its affiliates, directors and officers and each person, if
any, who controls Credit Suisse Securities (USA) LLC within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities incurred as a result
of Credit Suisse Securities (USA) LLC's participation as a "qualified
independent underwriter" within the meaning of the Rules of Conduct of the
National Association of Securities Dealers, Inc. in connection with the offering
of the Shares.
The Company also agrees to indemnify and hold harmless ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, Inc., its affiliates, directors and officers and each person, if
any, who controls ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. within the meaning of 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,
reasonable legal fees and other reasonable expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), that (i) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the approval of the Company for distribution to Directed Share
Participants in connection with the Directed Share Program, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, (ii)
arise out of, or are based upon, the failure of the Directed Share Participant
to pay for and accept delivery of Directed Shares that the Directed Share
Participant agreed to purchase or (iii) is otherwise related to the Directed
Share Program, other than losses, claims, damages and liabilities (or expenses
related thereto) that are finally judicially determined to have resulted from
the bad faith or gross negligence of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. or its
affiliates, directors or officers.
(b) Indemnification of the Underwriters by the Selling Stockholders. Each of
the Selling Stockholders, severally and not jointly, in proportion to the number
of Shares to be sold by such Selling Stockholder hereunder agrees to indemnify
and hold harmless each Underwriter, its affiliates, directors and
31
officers, partners and each person, if any, who controls such Underwriter within
the meaning of 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, as such fees and expenses are incurred), that arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale
Information (including any Time of Sale Information that has subsequently been
amended), 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, in the light of the circumstances under which they were made, not
misleading; but in each case (i) only to the extent (A) that the untrue
statement or omission or alleged untrue statement or omission was made in
reliance upon and in conformity with information furnished in writing by or on
behalf of such Selling Stockholder expressly for use in the Registration
Statement, the Prospectus (or any amendment or supplement thereto) any Issuer
Free Writing Prospectus or any Time of Sale Information, it being understood and
agreed that the only such information furnished by any Selling Stockholder
consists of the following information in the Prospectus furnished on behalf of
each Selling Stockholder: "Principal and selling stockholders", and (B) of the
amount of net proceeds (before deducting expenses) received by such Selling
Stockholder in connection with the sale of such Selling Stockholder's Shares
pursuant to this Agreement, and (ii) except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to such
Selling Stockholder or the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus
(or any amendment or supplement thereto), any Issuer Free Writing Prospectus or
any Time of Sale Information, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in subsection (c) below.
Each of the Selling Stockholders, severally and not jointly, in
proportion to the number of Shares to be sold by such Selling Stockholder
hereunder also agrees to indemnify and hold harmless Credit Suisse Securities
(USA) LLC, its affiliates, directors and officers and each person, if any, who
controls Credit Suisse Securities (USA) LLC within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages and liabilities incurred as a result of Credit
Suisse Securities (USA) LLC's participation as a "qualified independent
underwriter", within the meaning of the Rules of Conduct of the National
Association of Securities Dealers, Inc., in connection with the offering of the
Shares but only to the extent
32
of the amount of net proceeds received by such Selling Stockholder in connection
with the sale of such Selling Stockholder's Shares pursuant to this Agreement.
(c) Indemnification of the Company and the Selling Stockholders. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors, its officers who signed the Registration Statement
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act and each of the
Selling Stockholders to the same extent as the indemnity set forth in the first
paragraph of Section 9(a) above, but only with respect to any losses, claims,
damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information furnished to the Company or any
Selling Stockholder in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time
of Sale Information, it being understood and agreed upon that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: (i) the concession
and reallowance figures appearing in the fifth paragraph under the caption
"Underwriting" and (ii) the information contained in the fourteenth and
fifteenth paragraphs relating to stabilization transactions and passive market
making under the caption "Underwriting" [and the following information in the
Issuer Free Writing Prospectus dated _______, 2006: ].
(d) Notice and Procedures. 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 indemnification may be sought
pursuant to paragraph (a), (b) or (c) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing, enclosing a copy of all papers
served; provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under this Section 9 except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this
Section 9. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 9 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to
33
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be paid or reimbursed as they are incurred; provided, however, that if indemnity
may be sought pursuant to the second paragraph of 9(a) or 9(b) above in respect
of such proceeding, then in addition to such separate firm of the Underwriters,
their affiliates and such control persons of the Underwriters the Indemnifying
Person shall be liable for the fees and expenses of not more than one separate
firm (in addition to any local counsel) for Credit Suisse Securities (USA) LLC
in its capacity as a "qualified independent underwriter", its affiliates and all
persons, if any, who control Credit Suisse Securities (USA) LLC within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act. Any such separate firm for any Underwriter, its affiliates, directors and
officers and any control persons of such Underwriter shall be designated in
writing by ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Credit Suisse Securities (USA) LLC,
any such separate firm for the Company, its directors, its officers who signed
the Registration Statement and any control persons of the Company shall be
designated in writing by the Company, any such separate firm for the Selling
Stockholders shall be designated in writing by the Attorney-in-Fact, any such
separate firm for Credit Suisse Securities (USA) LLC in its capacity as
"qualified independent underwriter" shall be designated in writing by Credit
Suisse Securities (USA) LLC and any such separate firm for ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, Inc. in respect of the Directed Share Program shall be designated in
writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. The Indemnifying Person shall not 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, the 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 that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected
34
without its written consent if (i) such settlement is entered into more than 30
days after receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person,
unless such settlement (x) includes an unconditional release of such Indemnified
Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b)
and (c) above is unavailable to an Indemnified Person or insufficient 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 the Selling Stockholders, on the one hand,
and the Underwriters, on the other hand, from the offering of the Shares or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and the
Selling Stockholders, 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 the Selling
Stockholders, 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 (before
deducting expenses) received by the Company and the Selling Stockholders from
the sale of the Shares and the total underwriting discounts and commissions
received by the Underwriters in connection therewith, in each case as set forth
in the table on the cover of the Prospectus, bear to the aggregate offering
price of the Shares. The relative fault of the Company and the Selling
Stockholders, 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 and the Selling
Stockholders or by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
35
(f) Limitation on Liability. The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the
Selling Stockholders or the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (e) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (e) above 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 any such action or claim.
Notwithstanding the provisions of this Section 9, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Shares 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
Selling Stockholder shall be required to contribute any amount in excess of the
net proceeds (before deducting expenses) received by such Selling Stockholder
from the sale of Shares pursuant to this Agreement. 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 8 are several in proportion to their
respective purchase obligations hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this Section 9 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Person at law or in equity.
10. Effectiveness of Agreement. This Agreement shall become effective
upon the later of (i) the execution and delivery hereof by the parties hereto
and (ii) receipt by the Company and the Representatives of notice of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment thereto).
11. Termination. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company and the Selling
Stockholders, if after the execution and delivery of this Agreement and prior to
the Closing Date or, in the case of the Option Shares, prior to the Additional
Closing Date (i) trading generally shall have been suspended or materially
limited on or by any of the New York Stock Exchange, the American Stock
Exchange, or the Nasdaq National Market; (ii) trading of any securities issued
or guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities;
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial
36
markets or any calamity or crisis, either within or outside the United States,
that, in the reasonable judgment of the Representatives, is material and adverse
and makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Shares on the Closing Date or the Additional Closing Date, as
the case may be, on the terms and in the manner contemplated by this Agreement,
the Time of Sale Information and the Prospectus; or (v) the representation in
Section 3(b) is incorrect in any respect.
12. Defaulting Underwriter. (a) If, on the Closing Date or the
Additional Closing Date, as the case may be, any Underwriter defaults on its
obligation to purchase the Shares that it has agreed to purchase hereunder on
such date, the non-defaulting Underwriters may in their discretion arrange for
the purchase of such Shares by other persons satisfactory to the Company and the
Selling Stockholders on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters
do not arrange for the purchase of such Shares, then the Company and the Selling
Stockholders shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree
to purchase the Shares of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company and the Selling Stockholders may postpone the
Closing Date or the Additional Closing Date, as the case may be, for up to five
full business days in order to effect any changes that, in the opinion of
counsel for the Company, counsel for the Selling Stockholders or counsel for the
Underwriters, may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
otherwise requires, any person not listed in Schedule I hereto that, pursuant to
this Section 12, purchases Shares that a defaulting Underwriter agreed but
failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters, the Company and the Selling Stockholders as provided in paragraph
(a) above, the aggregate number of Shares that remain unpurchased on the Closing
Date or the Additional Closing Date, as the case may be does not exceed
one-tenth of the aggregate number of Shares to be purchased on such date, then
the Company and the Selling Stockholders shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares that such
Underwriter agreed to purchase hereunder on such date plus such Underwriter's
pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
37
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters, the Company and the Selling Stockholders as provided in paragraph
(a) above, the aggregate number of Shares that remain unpurchased on the Closing
Date or the Additional Closing Date, as the case may be, exceeds one-tenth of
the aggregate amount of Shares to be purchased on such date, or if the Company
and the Selling Stockholders shall not exercise the right described in paragraph
(b) above, then this Agreement or, with respect to any Additional Closing Date,
the obligation of the Underwriters to purchase Shares on the Additional Closing
Date, as the case may be, shall terminate without liability on the part of the
non-defaulting Underwriters. Any termination of this Agreement pursuant to this
Section 12 shall be without liability on the part of the Company and the Selling
Stockholders, except that the Company will continue to be liable for the payment
of expenses as set forth in Section 13 hereof and except that the provisions of
Section 9 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company, the Selling Stockholders or any
non-defaulting Underwriter for damages caused by its default.
13. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company will pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, sale, preparation and delivery of
the Shares and any taxes payable in that connection; (ii) the costs incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus, any Time of Sale Information and the Prospectus (including all
exhibits, amendments and supplements thereto) and the distribution thereof;
(iii) the costs of reproducing and distributing this Agreement, the Power of
Attorney and the Custody Agreement; (iv) the fees and expenses of the Company's
counsel and independent accountants; (v) the fees and expenses incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Shares under the laws of such jurisdictions as
the Representatives may designate and the preparation, printing and distribution
of a Blue Sky Memorandum (including the related reasonable fees and expenses of
counsel for the Underwriters up to a maximum of $5,000); (vi) the cost of
preparing stock certificates; (vii) the costs and charges of any transfer agent
and any registrar; (viii) all expenses and application fees incurred in
connection with any filing with, and clearance of the offering by, the National
Association of Securities Dealers, Inc. (including the fees and expenses of
Credit Suisse Securities (USA) LLC acting as "qualified independent underwriter"
within the meaning of Rule 2720 of the Rules of Conduct of the National
Association of Securities Dealers, Inc. (up to a maximum of $50,000 with
respect to counsel
38
fees and disbursements of the Underwriters and the "qualified independent
underwriter"); (ix) all expenses incurred by the Company in connection with any
"road show" presentation to potential investors; (x) all expenses and
application fees related to the listing of the Shares on the Nasdaq National
Market; (xi) the reasonable fees and expenses of one counsel to represent the
Selling Stockholders; and (xii) all costs and expenses of the Underwriters
relating to the Directed Share Program, including the fees and disbursements of
counsel for the Underwriters and any stamp duties or other taxes incurred by the
Underwriters in connection therewith; provided, however, that the Selling
Stockholders will be responsible for any fees and disbursements of any counsel
for the Selling Stockholders other than as provided in clause (xi) above and for
any commissions or transfer taxes on the sale by the Selling Stockholders of the
Shares to the Underwriters. Notwithstanding the foregoing, the Underwriters will
reimburse the Company for up to $_____________ of expenses relating to the offer
and sale of the Shares.
(b) If (i) this Agreement is terminated pursuant to Section 11, (ii)
the Company or the Selling Stockholders for any reason fail to tender the Shares
for delivery to the Underwriters or (iii) the Underwriters decline to purchase
the Shares for any reason permitted under this Agreement, the Company agrees to
reimburse the Underwriters for all reasonable out-of-pocket costs and expenses
(including the reasonable fees and expenses of their counsel) reasonably
incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
14. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any controlling persons
referred to in Section 9 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Shares from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
15. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Selling
Stockholders and the Underwriters contained in this Agreement or made by or on
behalf of the Company, the Selling Stockholders or the Underwriters pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company, the Selling Stockholders or the
Underwriters.
16. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth
39
in Rule 405 under the Securities Act; (b) 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; (c) the term "subsidiary" has the meaning set forth in Rule 405 under
the Securities Act; and (d) the term "significant subsidiary" has the meaning
set forth in Rule 1-02 of Regulation S-X under the Exchange Act.
17. Miscellaneous. (a) Authority of the Representatives. Any action by
the Underwriters hereunder may be taken by the Representatives on behalf of the
Underwriters, and any such action taken by the Representatives shall be binding
upon the Underwriters. Any action taken by ▇.▇. ▇▇▇▇▇▇ Securities Inc. and
Credit Suisse Securities (USA) LLC shall be deemed to be an action taken by the
Representatives for purposes of this Agreement.
(b) Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters
shall be given to the Representatives c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇. Notices to the Company shall be given to it at ▇▇▇▇▇▇ Worldwide Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, (fax: (▇▇▇) ▇▇▇-▇▇▇▇);
Attention: Chief Executive Officer (with a copy to the General Counsel at such
address). Notices to the Selling Stockholders shall be given to the
Attorneys-in-Fact at ▇▇▇▇▇▇ Worldwide, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, (Fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. Son.
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
40
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
▇▇▇▇▇▇ WORLDWIDE, INC.
By:
------------------------------------
Name:
Title:
SELLING STOCKHOLDERS
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
As Attorneys-in-Fact acting on behalf of
each of the Selling Stockholders named
in Schedule II to this Agreement
Accepted: May __, 2006
▇.▇. ▇▇▇▇▇▇ SECURITIES INC. CREDIT
SUISSE SECURITIES (USA) LLC
For themselves and on behalf of the
several Underwriters listed in
Schedule I hereto.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
-----------------------------------
Authorized Signatory
CREDIT SUISSE SECURITIES (USA) LLC
By:
-----------------------------------
Authorized Signatory
41
Schedule I
Underwriter Number of Shares
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Credit Suisse Securities (USA) LLC
Banc of America Securities LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
Sandler ▇'▇▇▇▇▇ & Partners, L.P.
-----------------
Total 7,465,759
42
Schedule II
Selling Stockholders Number of Underwritten Shares Number of Option Shares
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 330,663
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 105,486
▇▇▇▇▇▇ ▇. Son 98,437
▇▇▇▇▇▇ ▇▇▇▇▇▇ 4,474
J. ▇▇▇▇▇ ▇▇▇▇ 83,531
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 130,313
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇(1) 136,815
Call Now, Inc. 136,815
▇▇▇▇▇▇▇ ▇▇▇ 208
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,812
▇▇▇▇ ▇▇▇▇▇▇▇ 310
▇▇▇▇▇▇ ▇▇▇▇▇ 736
▇▇▇▇▇▇▇▇▇ Contreros 100
▇▇▇ Daily 4,218
DCG&T FBO ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ 491
DCG&T FBO ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ 545
▇▇▇▇▇▇▇ ▇▇▇▇▇ 20
Estate of ▇▇▇▇▇ ▇▇▇▇▇ 6,805
▇▇▇▇▇ ▇. ▇▇▇▇▇ 1,125
▇▇▇▇ ▇▇▇▇▇▇ 1,546
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 12,740
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 42,495
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III 3,721
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 8,645
▇▇▇▇▇▇▇▇ Family 2000 11,615
Children's Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 39,128
▇▇▇▇ ▇. ▇▇▇▇ 416
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 2000 3,487
Children's Trust
▇▇▇ ▇▇▇▇ 6,675
Jordan ▇▇▇▇▇▇ ▇▇▇▇ 2000 3,487
Children's Trust
E. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 4,218
▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,218
Lauren ▇▇▇▇ ▇▇▇▇▇▇▇▇ 2000 5,807
Children's Trust
▇▇▇▇ ▇▇▇▇▇▇▇ 4,218
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 46,406
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 5,807
----------
(1) Reflects 136,815 shares being sold in the offering by Call Now, Inc.,
of which ▇▇. ▇▇▇▇▇▇▇ is the President, Chief Executive Officer and member of the
Board of Directors.
43
2000 Children's Trust
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2,812
▇▇▇▇ ▇▇▇▇▇▇ 3,791
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3,109
Nexa Technologies 21,875
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,812
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,647
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 185
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 12,740
▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,812
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 2,083
▇▇▇▇▇▇ ▇▇▇▇▇▇ 3,825
▇▇▇▇ ▇▇▇▇▇▇▇ 1,933
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,812
▇▇▇▇ ▇. ▇▇▇▇▇ 943
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 310
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,718
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 984
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ 4,218
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1,125
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 4,218
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,812
▇▇▇▇ ▇▇▇▇▇▇▇ 1,148
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 171
▇▇▇▇ ▇▇▇▇▇ 6,078
▇▇▇▇▇▇ ▇▇▇▇▇ 2,812
▇▇ ▇▇▇ 3,426
▇▇▇▇ ▇▇▇▇▇ 2,812
44
Schedule III
Significant Subsidiaries
▇▇▇▇▇▇ Financial Services Canada, Inc.
▇▇▇▇▇▇ Financial Services, Inc.
▇▇▇▇▇▇ Financial Services Limited