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EXHIBIT 1.1
8,000,000 SHARES
DAVID'S BRIDAL, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
May __, 1999
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
INCORPORATED
As representatives of the several Underwriters
named in Schedule I hereto
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
David's Bridal, Inc., a Florida corporation (the "COMPANY"), proposes to
issue and sell to the several underwriters named in Schedule I hereto (the
"UNDERWRITERS"), and certain stockholders of the Company named in Schedule II
and Schedule III hereto (the "SELLING STOCKHOLDERS") severally propose to sell
to the several Underwriters, an aggregate of 8,000,000 shares of the common
stock, par value $.01 per share, of the Company (the "FIRM SHARES"), of which
1,613,000 shares are to be issued and sold by the Company and 6,387,000 shares
are to be sold by the Selling Stockholders, each Selling Stockholder selling the
amount set forth opposite such Selling Stockholder's name in Schedule II and
Schedule III hereto. The Company and the Selling Stockholders also severally
propose to sell to the several Underwriters not more than an additional
1,200,000 shares of common stock, par value $.01 (the "ADDITIONAL SHARES") if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Additional Shares are hereinafter referred to collectively as the
"SHARES". The
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shares of common stock of the Company to be outstanding after giving effect to
the sales contemplated hereby are hereinafter referred to as the "COMMON STOCK".
The Company and the Selling Stockholders are hereinafter sometimes referred to
collectively as the "SELLERS."
SECTION 1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "COMMISSION") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"ACT"), a registration statement on Form S-1, including a prospectus, relating
to the Shares. The registration statement, as amended at the time it became
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter referred to as the "REGISTRATION STATEMENT"; and the
prospectus in the form first used to confirm sales of Shares is hereinafter
referred to as the "PROSPECTUS". If the Company has filed or is required
pursuant to the terms hereof to file a registration statement pursuant to Rule
462(b) under the Act registering additional shares of Common Stock (a "RULE
462(b) REGISTRATION STATEMENT"), then, unless otherwise specified, any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, (i) the Company agrees to issue and sell
1,613,000 Firm Shares, (ii) each Selling Stockholder agrees, severally and not
jointly, to sell the number of Firm Shares set forth opposite such Selling
Stockholder's name in Schedule II and III hereto and (iii) each Underwriter
agrees, severally and not jointly, to purchase from each Seller at a price per
Share of $______ (the "PURCHASE PRICE") the number of Firm Shares (subject to
such adjustments to eliminate fractional shares as you may determine) that bears
the same proportion to the total number of Firm Shares to be sold by such Seller
as the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company and the Selling
Stockholders agree to sell the Additional Shares and the Underwriters shall have
the right to purchase, severally and not jointly, the Additional Shares in the
following manner; (i) up to 322,581 Additional Shares from the Company and (ii)
after such Additional Shares have been purchased from the Company, up to 877,419
Additional Shares proportionally from each Selling Stockholder, as specified in
Schedules II and III, in each case at the Purchase Price. Additional
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Shares may be purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Shares. The Underwriters may
exercise their right to purchase Additional Shares in whole or in part from time
to time by giving written notice thereof to the Company and the Selling
Stockholders, as applicable, who have agreed to sell Additional Shares within 30
days after the date of this Agreement. You shall give any such notice on behalf
of the Underwriters and such notice shall specify the aggregate number of
Additional Shares to be purchased pursuant to such exercise and the date for
payment and delivery thereof, which date shall be a business day (i) no earlier
than two business days after such notice has been given (and, in any event, no
earlier than the Closing Date (as hereinafter defined)) and (ii) no later than
ten business days after such notice has been given. If any Additional Shares are
to be purchased, each Underwriter, severally and not jointly, agrees to purchase
first from the Company, until the Company has sold all of the Additional Shares
to be sold by it, and thereafter from the Selling Stockholders the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) which bears the same proportion to the total number of
Additional Shares to be purchased as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total number of
Firm Shares.
Each Seller hereby agrees not to (i) offer, pledge, 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 Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 180 days after the date of the Prospectus without the prior written
consent of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation. The Sellers are
not subject to clauses (i) and (ii) above with respect to transfers for family
planning purposes, but only if the transferee agrees to be subject to clauses
(i) and (ii) above. Notwithstanding the foregoing, during such period (i) the
Company may grant stock options pursuant to the Company's existing stock option
plan and (ii) the Company may issue shares of Common Stock upon the exercise of
an option or warrant or the conversion of a security outstanding on the date
hereof. The Company also agrees not to file any registration statement, other
than a registration statement on Form S-8 covering common stock issuable
pursuant to the Company's existing stock option plan, with respect to any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock for a period of 180 days after the date of the
Prospectus without the prior written consent of
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation. In addition, each Selling
Stockholder agrees that, for a period of 180 days after the date of the
Prospectus without the prior written consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation, it will not make any demand for, or exercise any right
with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock. The
Company shall, prior to or concurrently with the execution of this Agreement,
deliver an agreement executed by (i) each Selling Stockholder, and (ii) each
stockholder listed on Annex I hereto to the effect that such person will not,
during the period commencing on the date such person signs such agreement and
ending 180 days after the date of the Prospectus, without the prior written
consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Corporation, (A) engage in any of the
transactions described in the first sentence of this paragraph (subject to the
exception set forth in the second sentence of this paragraph) or (B) make any
demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock.
SECTION 3. Terms of Public Offering. The Sellers are advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
shall request not later than 9:00 A.M. on the second business day prior to the
Closing Date or the applicable Option Closing Date (as defined below), as the
case may be. The Shares shall be delivered by or on behalf of the Sellers to
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation through the facilities of
The Depository Trust Company ("DTC"), for the respective accounts of the several
Underwriters, against payment to the Sellers of the Purchase Price therefor by
wire transfer of Federal or other funds immediately available in Philadelphia.
The certificates representing the Shares shall be made available for inspection
not later than 12:00 noon, New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, at the
office of DTC or its designated custodian (the "DESIGNATED OFFICE"). The time
and date of delivery and payment for the Firm Shares shall be 9:00 A.M., New
York City time, on __________ , 1999 or such other time on the same or such
other date as ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation and the
Company shall agree in writing. The time and date of delivery and payment for
the Firm Shares are hereinafter referred to as the "CLOSING DATE." The time and
date of delivery and payment for any Additional Shares to be purchased by the
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Underwriters shall be 9:00 A.M., New York City time, on the date specified in
the applicable exercise notice given by you pursuant to Section 2 or such other
time on the same or such other date as ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation and the Company shall agree in writing. The time and date of
delivery and payment for any Additional Shares are hereinafter referred to as an
"OPTION CLOSING DATE."
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, and the Shares shall be delivered at the
Designated Office, all on the Closing Date or such Option Closing Date, as the
case may be.
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus
or for additional information, (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of the suspension of qualification of the Shares for offering or sale
in any jurisdiction, or the initiation of any proceeding for such
purposes, (iii) when any amendment to the Registration Statement becomes
effective, (iv) if the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, when the
Rule 462(b) Registration Statement has become effective and (v) of the
happening of any event during the period referred to in Section 5(d) below
which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or
changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Company will use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To furnish to you four signed copies of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits, and to furnish to you and each Underwriter
designated by you such number of conformed copies of the Registration
Statement as so filed and of each amendment to it, without exhibits, as
you may reasonably request.
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(c) To prepare the Prospectus, the form and substance of which shall
be satisfactory to you in your reasonable judgment, and to file the
Prospectus in such form with the Commission within the applicable period
specified in Rule 424(b) under the Act; during the period specified in
Section 5(d) below, not to file any further amendment to the Registration
Statement and not to make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which you shall
reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the Shares by you, and to use its best
efforts to cause any such amendment to the Registration Statement to
become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business
day after the date of this Agreement and from time to time thereafter for
such period as in the opinion of counsel for the Underwriters a prospectus
is required by law to be delivered in connection with sales by an
Underwriter or a dealer, but no later than 90 days following the date of
this Agreement, to furnish in New York City to each Underwriter and any
dealer as many copies of the Prospectus (and of any amendment or
supplement to the Prospectus) as such Underwriter or dealer may reasonably
request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare and file with the Commission an appropriate
amendment or supplement to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not in the light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter
or dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with
you and counsel for the Underwriters in connection with the registration
or qualification of the Shares for offer and sale by the several
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Underwriters and by dealers under the state securities or Blue Sky laws of
such jurisdictions as you may request, to continue such registration or
qualification in effect so long as required for distribution of the Shares
and to file such consents to service of process or other documents as may
be necessary in order to effect such registration or qualification;
provided, however, that the Company shall not be required in connection
therewith to qualify as a foreign corporation in any jurisdiction in which
it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters
and transactions relating to the Prospectus, the Registration Statement,
any preliminary prospectus or the offering or sale of the Shares, in any
jurisdiction in which it is not now so subject.
(g) To make generally available to its stockholders no later than 45
days following _______, 2000, an earnings statement covering the
twelve-month period ending [March 31,] 2000 within the meaning of the
provisions of Section 11(a) of the Act and any rules promulgated
thereunder, including Rule 158 under the Act.
(h) During the period of three years after the date of this
Agreement, to furnish to you as soon as available copies of all reports or
other communications furnished to the record holders of Common Stock or
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed and
such other publicly available information concerning the Company and its
subsidiaries as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the Sellers' obligations
under this Agreement, including: (i) the fees, disbursements and expenses
of the Company's counsel, the Company's accountants and any Selling
Stockholder's counsel (in addition to the Company's counsel) in connection
with the registration and delivery of the Shares under the Act and all
other fees and expenses in connection with the preparation, printing,
filing and distribution of the Registration Statement (including financial
statements and exhibits), any preliminary prospectus, the Prospectus and
all amendments and supplements to any of the foregoing, including the
mailing and delivering of copies thereof to the Underwriters and dealers
in the quantities specified herein but not including any subsequent
distribution by the Underwriters and dealers, (ii) all costs and expenses
related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii)
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all costs of printing or producing the Registration Statement and the
Prospectus, (iv) all expenses in connection with the registration or
qualification of the Shares for offer and sale under the securities or
Blue Sky laws of the several states and all costs of printing or producing
any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel
for the Underwriters in connection with such memoranda relating thereto),
such expenses and costs not to exceed an aggregate of $10,000, (v) the
filing fees and disbursements of counsel for the Underwriters in
connection with the review and clearance of the offering of the Shares by
the National Association of Securities Dealers, Inc., (vi) all fees and
expenses in connection with the preparation and filing of the registration
statement on Form 8-A relating to the Common Stock and all costs and
expenses incident to the listing of the Shares on the NASDAQ, National
Market System, (vii) the cost of printing certificates representing the
Shares, (viii) the costs and charges of any transfer agent or registrar,
(ix) all fees and expenses in connection with the directed share program,
such expenses and costs not to exceed an aggregate of $5,000 and (x) all
other costs and expenses incident to the performance of the obligations of
the Company and the Selling Stockholders hereunder for which provision is
not otherwise made in this Section 5(i). The provisions of this Section
shall not supercede or otherwise affect any agreement that the Company and
the Selling Stockholders may otherwise have for allocation of such
expenses among themselves.
(j) To use its best efforts to list the Shares on the Nasdaq and to
maintain the listing of the Shares on the NASDAQ, National Market System
for a period of three years after the date of this Agreement.
(k) If the Registration Statement at the time of the effectiveness
of this Agreement does not cover all of the Shares, and the aggregate
initial offering price of Additional Shares does not exceed twenty percent
of the maximum aggregate offering price of the Shares set forth in the
"Calculation of the Registration Fee" table included on the front cover of
the Registration Statement, to transmit for filing a Rule 462(b)
Registration Statement with the Commission registering the Shares not so
covered in compliance with Rule 462(b) in a manner that reasonably should
enable the Rule 462(b) Registration Statement to become effective by 10:00
P.M., New York City time, on the date of this Agreement and to pay to the
Commission the filing fee for such Rule 462(b) Registration Statement at
the time of the filing thereof or to give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
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SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement
filed after the effectiveness of this Agreement will be transmitted for
filing in a fashion that reasonably should enable the Rule 462(b)
Registration Statement to become effective no later than 10:00 P.M., New
York City time, on the date of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness
of this Agreement), when it became effective, did not contain and, as
amended, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this
Agreement) and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the applicable
requirements of the Act, (iii) if the Company is required to file a Rule
462(b) Registration Statement after the effectiveness of this Agreement,
such Rule 462(b) Registration Statement and any amendments thereto, when
they become effective (A) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (B)
will comply in all material respects with the applicable requirements of
the Act and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
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(c) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the Prospectus and
to own, lease and operate its properties, and each is duly qualified and
is in good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(d) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
granted or issued by the Company or any of its subsidiaries relating to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of the Company or any of its subsidiaries, except as
otherwise disclosed in the Registration Statement.
(e) 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, non-assessable and
not subject to any preemptive or similar rights; and the Shares to be
issued and sold by the Company have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor as provided by
this Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Shares will not be subject to any preemptive or
similar rights.
(f) All of the outstanding shares of Classes A, B, C and D Preferred
Stock of the Company will be converted into 7,543,817 shares of Common
Stock as of the Closing Date pursuant to the Company's Third Amended and
Restated Articles of Incorporation immediately prior to the consummation
of the public offering of the Shares.
(g) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable, and are owned by the Company, directly
or indirectly through one or more subsidiaries, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
nature, except as set forth in the Prospectus and except for any liens
granted under the Second Amended and Restated Credit Agreement among the
Company and First Union National Bank, dated as of
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December 30, 1998, a copy of which has been filed as an Exhibit to the
Registration Statement.
(h) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or in default in the performance of
any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective
property is bound; except for such violations, defaults or
non-performances that, individually or in the aggregate, would not result
in a material adverse effect on the Company and its subsidiaries taken as
a whole.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and
the consummation of the transactions contemplated hereby will not (i)
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such
as may be required under the securities or Blue Sky laws of the various
states), (ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Company
or any of its subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company and
its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which, to the knowledge of the Company, the
Company or any of its subsidiaries or their respective property is bound,
(iii) violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental body or agency
expressly applicable to the Company, any of its subsidiaries or their
respective property or (iv) result in the suspension, termination or
revocation of any Authorization (as defined below) of the Company or any
of its subsidiaries or any other impairment of the rights of the holder of
any such Authorization.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of their respective property is subject that are required to
be described in the Registration Statement or the Prospectus and are not
so described; nor are there any statutes, regulations, contracts or other
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documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
that are not so described or filed as required.
(l) To the knowledge of the Company, neither the Company nor any of
its subsidiaries has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS") or any provisions of the Employee
Retirement Income Security Act of 1974, as amended, or the Foreign Corrupt
Practices Act or the rules and regulations promulgated thereunder, except
for such violations which, singly or in the aggregate, would not have a
material adverse effect on the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a
whole.
(m) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "AUTHORIZATION") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct
its business, except where the failure to have any such Authorization or
to make any such filing or notice would not, singly or in the aggregate,
have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole. Each such Authorization is valid and in full force and
effect and each of the Company and its subsidiaries is in compliance with
all the terms and conditions thereof and with the rules and regulations of
the authorities and governing bodies having jurisdiction with respect
thereto; and to the knowledge of the Company, no event has occurred
(including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of
time or both, would allow, revocation, suspension or termination of any
such Authorization or which results or, after notice or lapse of time or
both, would result in any other impairment of the rights of the Company or
its subsidiaries; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such
failure to be valid and in full force and effect or to be in compliance,
the occurrence of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a material adverse effect on
the
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business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(n) To the knowledge of the Company, there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
(o) This Agreement has been duly authorized, executed and delivered
by the Company.
(p) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(q) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), together with related schedules and notes, present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis stated
therein at the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; the supporting schedules, if any, included in the Registration
Statement present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) in all material respects fairly present the information and data
so set forth.
(r) 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 Prospectus, will not be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(s) Except as set forth in the Registration Agreement dated as of
April 9, 1995, as amended on August 13, 1997, described in the
Registration Statement, there are no contracts, agreements or
understandings between the Company and any person granting such
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person the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company or to require
the Company to include such securities with the Shares registered pursuant
to the Registration Statement.
(t) Since the January 3, 1999 other than as set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement), (i) there has not occurred any material
adverse change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries,
taken as a whole, (ii) there has not been any material adverse change or
any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its
subsidiaries and (iii) neither the Company nor any of its subsidiaries has
incurred any material liability or obligation, direct or contingent, other
than in the ordinary course of business.
(u) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
SECTION 7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder represents and warrants to each Underwriter that:
(a) As of the date hereof, such Selling Stockholder has good title
to its shares of common and/or preferred stock of the Company, to be sold
by such Selling Stockholder upon conversion into Common Stock, as
applicable, pursuant to this Agreement and free of all adverse claims.
(b) As of the Closing Date all of such Selling Stockholder's shares
of Classes A, B, C and D Preferred Stock will have been converted, if
applicable, into shares of Common Stock pursuant to the Company's Third
Amended and Restated Articles of Incorporation.
(c) On the Closing Date, such Selling Stockholder will have good
title to the Shares to be sold by such Selling Stockholder pursuant to
this Agreement and free of all adverse claims.
(d) Such Selling Stockholder has, and on the Closing Date will have,
full legal right, power and authority, and all authorization and approval
required by law, to enter into this Agreement, the Custody
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Agreement signed by such Selling Stockholder and The Bank of New York, as
Custodian, relating to the deposit of the Shares to be sold by such
Selling Stockholder (the "CUSTODY AGREEMENT") and the Power of Attorney of
such Selling Stockholder, except [Clipper Capital Associates, L.P.,
Clipper/European Re L.P., Clipper Merban L.P., Clipper Equity Partner I,
L.P., Clipper Merchant Partner L.P.] (the "CLIPPER SELLING STOCKHOLDERS"),
appointing certain individuals as such Selling Stockholder's
attorneys-in-fact (the "ATTORNEYS") to the extent set forth therein,
relating to the transactions contemplated hereby and by the Registration
Statement and the Custody Agreement (the "POWER OF ATTORNEY") and to sell,
transfer and deliver the Shares to be sold by such Selling Stockholder in
the manner provided herein and therein.
(e) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder.
(f) The Custody Agreement of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a
valid and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms.
(g) The Power of Attorney of such Selling Stockholder, if
applicable, has been duly authorized, executed and delivered by such
Selling Stockholder and is a valid and binding instrument of such Selling
Stockholder, but subject to any conditions or limitations set forth
therein, enforceable in accordance with its terms, and, pursuant to such
Power of Attorney, such Selling Stockholder has, among other things,
authorized the Attorneys, or any one of them, to execute and deliver on
such Selling Stockholder's behalf this Agreement and any other document
that they, or any one of them, may deem necessary or desirable in
connection with the transactions contemplated hereby or thereby and to
deliver the Shares to be sold by such Selling Stockholder pursuant to this
Agreement.
(h) Upon delivery of and payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, good title to such Shares
will pass, free of all adverse claims.
(i) The execution, delivery and performance of this Agreement and
the Custody Agreement and Power of Attorney, if any, of such Selling
Stockholder by or on behalf of such Selling Stockholder, the compliance by
such Selling Stockholder with all the provisions hereof and thereof and
the consummation of the transactions contemplated hereby and thereby will
not (i) require any consent, approval, authorization or
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other order of, or qualification with, any court or governmental body or
agency (except such as may be required under the securities or Blue Sky
laws of the various states), (ii) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the organizational
documents of such Selling Stockholder, if such Selling Stockholder is not
an individual, or any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or any property of such Selling Stockholder
is bound or (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency expressly applicable to such Selling Stockholder or any
property of such Selling Stockholder.
(j) The information in the Registration Statement under the caption
"Principal and Selling Shareholders" which specifically relates to such
Selling Stockholder does not, and will not on the Closing Date, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(k) At any time during the period described in Section 5(d), if
there is any change in the information referred to in Section 7(h), such
Selling Stockholder will immediately notify you of such change.
(l) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by such
Selling Stockholder to the Underwriters as to the matters covered thereby.
SECTION 8. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter, its directors, its officers and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), from and against any and all losses, claims, damages, liabilities and
judgments (including, without limitation, any legal or other expenses incurred
in connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements
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therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished in writing to the Company by such Underwriter through you
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, prior or together
with the written confirmation of the sale of the Shares to such person, and if
the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to the assertion of such losses, claims, damages or liabilities.
(b) The Selling Shareholders identified in Schedule II (referred to each
as a "MANAGEMENT SELLING SHAREHOLDER"), severally and not jointly, agree to
indemnify and hold harmless each Underwriter, its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, prior or together with the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities. Notwithstanding
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the foregoing, (i) the liability of each Management Selling Stockholder pursuant
to this Section 8(b) shall be limited to an amount equal to the total net
proceeds (after deducting underwriting discounts and commissions and expenses)
received by such Management Selling Stockholder from the Underwriters for the
sale of the Shares sold by such Management Selling Stockholder hereunder and
(ii) the Management Selling Stockholders shall not be required to honor any
demand for indemnity from any Underwriter pursuant to this Section 8 unless,
prior to the making of such demand by the Underwriter, such Underwriter shall
have delivered a written demand to the Company seeking indemnity and the Company
shall have failed to perform its obligations in respect thereof pursuant to this
Section 8 and such failure shall have continued for a period of 90 days.
(c) The Selling Stockholders who are listed in Schedule III (referred to
herein as the "NON-MANAGEMENT SELLING STOCKHOLDERS"), severally and not jointly,
agree to indemnify and hold harmless each Underwriter, its directors, its
officers and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action, that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company by
such Underwriter through you expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, prior or together with the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities. Notwithstanding the foregoing, (i) the liability of each
Non-Management Selling Stockholder pursuant to this Section 8(c) shall be
limited to an amount equal to the total net proceeds (after deducting
underwriting discounts and commissions and expenses)
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received by such Stockholder from the Underwriters for the sale of the Shares
sold by such Stockholder hereunder, (ii) each of the Non-Management Selling
Stockholders will be liable in any such case only to the extent that such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement in or omission or alleged omission from any such
document is in reliance upon and in conformity with written information relating
to such Non-Management Selling Stockholder, furnished to the Company by such
Non-Management Selling Stockholder specifically for use therein, and (iii) the
Non-Management Selling Stockholders shall not be required to honor any demand
for indemnity from any Underwriter pursuant to this Section 8 unless, prior to
the making of such demand by the Underwriter, such Underwriter shall have
delivered a written demand to the Company seeking indemnity and the Company
shall have failed to perform its obligations in respect thereof pursuant to this
Section 8 and such failure shall have continued for a period of 90 days.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each Selling
Stockholder and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Sellers to such Underwriter
but only with reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter expressly for use in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus.
(e) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8 (the "INDEMNIFIED
PARTY"), the indemnified party shall promptly notify each person against whom
such indemnity is being sought (each, an "INDEMNIFYING PARTY") in writing and
the indemnifying party shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to the indemnified party and the
payment of all fees and expenses of such counsel, as incurred (except that in
the case of any action in respect of which indemnity may be sought pursuant to
any of Sections 8(a), 8(b) or 8(c) and pursuant to Section 8(d), the Underwriter
shall not be required to assume the defense of such action pursuant to this
Section 8(e), but may employ separate counsel and participate in the defense
thereof, but the fees and expenses of such counsel, except as provided below,
shall be at the expense of such Underwriter). Any indemnified party shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel shall
have
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been specifically authorized in writing by each indemnifying party, (ii) each
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and an indemnifying party, and the indemnified party shall
have been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying parties shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for (i) the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all Underwriters, their officers and
directors and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, (ii)
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and all persons, if any, who control the Company within
the meaning of either such Section and (iii) the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters, their officers and directors and such
control persons of any Underwriters, such firm shall be designated in writing by
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation. In the case of any such
separate firm for the Company and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. In the
case of any such separate firm for the Clipper Selling Stockholders and such
control persons of any Clipper Selling Stockholders, said firm shall be
designated in writing by The Clipper Group, L.P. In the case of any such
separate firm for the Selling Stockholders, other than Clipper Selling
Stockholders, and such control persons of such Selling Stockholders, such firm
shall be designated in writing by the Attorneys. The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action effected with its written consent. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or reasonably could have been a party and indemnity or contribution may be or
could have been sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all
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liability on claims that are or reasonably could have been the subject matter of
such action and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(f) To the extent the indemnification provided for in this Section 8 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sellers 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 8(f)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 8(f)(i) above but also the
relative fault of the respective Sellers and the Underwriters in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the respective Sellers and the
Underwriters shall be deemed to be in the same proportion as the total net
proceeds from the offering (after deducting underwriting discounts and
commissions but before deducting expenses) received by each such Seller, and the
total underwriting discounts and commissions received by the Underwriters, bear
to the total price to the public of the Shares, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the respective
Sellers and the Underwriters shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Management Selling Stockholders, the Non-Management
Selling Stockholders, or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(f) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions
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of this Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8(f) are several in
proportion to the respective number of Shares purchased by each of the
Underwriters hereunder and not joint.
Notwithstanding anything in this Section 8 to the contrary, the liability
of each Selling Stockholder to each Underwriter, its directors, its officers and
the persons who control any Underwriter pursuant to this Section 8 shall be
limited to the net proceeds (after deducting underwriting discounts and
commissions and expenses) received by such Selling Stockholder from the sale of
the Shares by such Selling Stockholder hereunder. In addition, no Selling
Stockholder shall be required to make any payment to any Underwriter under this
Section 8 until such time as such Underwriter has asserted a demand against the
Company and the Company shall have failed to perform pursuant to the provisions
of Section 8.
(g) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(h) Each Selling Stockholder, except the Clipper Selling Stockholders,
hereby designates David's Bridal, Inc., ▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, as its authorized agent, upon which process may be served in
any action which may be instituted in any state or federal court in the City of
New York by any Underwriter, any director or officer of any Underwriter or any
person controlling any Underwriter asserting a claim for indemnification or
contribution under or pursuant to this Section 8, and each such Selling
Stockholder will accept the jurisdiction of such court in such action, and
waives, to the fullest extent permitted by applicable law, any defense based
upon lack of personal jurisdiction or venue. A copy of any such process shall be
sent or given to such Selling Stockholder, at the address for notices specified
in Section 11 hereof.
(i) Each Clipper Selling Stockholder hereby designates [___________,
address], as its authorized agent, upon which process may be served in any
action which may be instituted in any state or federal court in the City of New
York by any Underwriter, any director or officer of any Underwriter or any
person
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controlling any Underwriter asserting a claim for indemnification or
contribution under or pursuant to this Section 8, and each such Clipper Selling
Stockholder will accept the jurisdiction of such court in such action, and
waives, to the fullest extent permitted by applicable law, any defense based
upon lack of personal jurisdiction or venue. A copy of any such process shall be
sent or given to such Clipper Selling Stockholder, at the address for notices
specified in Section 11 hereof.
SECTION 9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York
City time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by ▇▇▇▇▇▇ ▇. Erlbaum, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, in their capacities as the Chairman, the Chief Executive
Officer and President, and Chief Financial Officer of the Company,
confirming to their knowledge, the matters set forth in Sections 6(t),
9(a) and 9(b) and that the Company has complied in all material respects
with all of the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied in all material
respects by the Company on or prior to the Closing Date.
(d) Since January 3, 1999, other than as set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the
Company and its subsidiaries, taken as a whole, (ii) there shall not have
been any change or any development involving a prospective change in the
capital stock or in the long-term debt of the Company or any of its
subsidiaries and (iii) neither the
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Company nor any of its subsidiaries shall have incurred any liability or
obligation, direct or contingent other than in the ordinary course of
business, the effect of which, in any such case described in clause
9(d)(i), 9(d)(ii) or 9(d)(iii), in your reasonable judgment, is so
material and adverse as to make it impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling
Stockholder contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the
Closing Date and you shall have received on the Closing Date a certificate
dated the Closing Date from each Selling Stockholder (or their
attorney-in-fact) to such effect and to the effect that such Selling
Stockholder has complied with all of the agreements and satisfied all of
the conditions herein contained and required to be complied with or
satisfied by such Selling Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion
reasonably satisfactory to you and counsel for the Underwriters, dated the
Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Company and
the Selling Stockholders (except the Clipper Selling Stockholders,
Adwood/Kafry and ▇▇▇▇▇▇▇ ▇▇▇▇▇), to the effect set forth in Exhibit A.
The opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP described in Section 9(f)
above and set forth in Exhibit B shall be rendered to you at the request
of the Company and the Selling Stockholders and shall so state therein.
(g) You shall have received on the Closing Date an opinion
reasonably satisfactory to you and counsel for the Underwriters, dated the
Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Clipper Selling
Stockholders, to the effect set forth in Exhibit B.
(h) You shall have received on the Closing Date an opinion
reasonably satisfactory to you and counsel for the Underwriters dated the
Closing Date, of [COUNSEL FOR ADWOOD/KAFRY AND ▇. ▇▇▇▇▇] to the effect set
forth in Exhibit D.
(i) You shall have received on the Closing Date an opinion, dated
the Closing Date, of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
as to the matters referred to in Exhibit A, Sections (iv), (v)
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(but only with respect to the Company), (ix) (but only with respect to the
statements under the caption "Underwriting") and (xv).
(j) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, reasonable to you, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent
public accountants, containing the information and statements as set forth
in Exhibit C with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(k) The Company shall have delivered to you the agreements specified
in the last sentence of Section 2 hereof which agreements shall be in full
force and effect on the Closing Date.
(l) The Shares shall have been duly listed, subject to notice of
issuance, on the NASDAQ, National Market System.
(m) The Company and the Selling Stockholders shall not have failed
on or prior to the Closing Date to perform or comply in any material
respect with any of the agreements herein contained and required to be
performed or complied with by the Company or the Selling Stockholders, as
the case may be, on or prior to the Closing Date.
(n) You shall have received on the Closing Date, a certificate of
each Selling Stockholder who is not a U.S. Person (as defined under
applicable U.S. federal tax legislation) to the effect that such Selling
Stockholder is not a U.S. Person, which certificate may be in the form of
a properly completed and executed United States Treasury Department Form
W-8 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of such Additional
Shares and other matters related to the issuance of such Additional Shares.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
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26
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Sellers if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
so material and adverse as to make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, (ii) the suspension or
material limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange, the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange, the Chicago Board of Trade or the Nasdaq National Market or
limitation on prices for securities or other instruments on any such exchange or
the Nasdaq National Market, (iii) the suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, or New York state
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion which
the number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Firm Shares or Additional
Shares, as the case may be, which any Underwriter has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or
26
27
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased by all
Underwriters and arrangements satisfactory to you, the Company and the Selling
Stockholders for purchase of such Firm Shares are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders. In any such
case which does not result in termination of this Agreement, either you or the
Sellers shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. If, on an Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased on such
date, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase such Additional Shares or (ii) purchase
not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase on such date in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
SECTION 11. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to David's
Bridal, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(ii) if to the Clipper Selling Stockholders, to The Clipper Group, L.P.,
[address], with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, att: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (iii) if to the other Selling
Stockholders, to ▇▇▇▇▇▇ ▇. Erlbaum and ▇▇▇▇▇▇ ▇. ▇▇▇▇ c/o David's Bridal, Inc.,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and (iv) if to any
Underwriter or to you, to you c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the officers
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28
or directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company, any person controlling the
Company, any Selling Stockholder or any person controlling such Selling
Stockholder, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10 or breach of this Agreement by any
Underwriter), the non-delivering Sellers agree, jointly and severally, to
reimburse the several Underwriters for all out-of-pocket expenses (including the
fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Sellers also
agree, jointly and severally, to reimburse the several Underwriters, their
directors and officers and any persons controlling any of the Underwriters for
any and all fees and expenses (including, without limitation, the fees and
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 8 hereof);
provided that the adjudication of such rights is determined by a court of
competent jurisdiction, not subject to further review and appeal, and the
Underwriter involved in such a dispute is the prevailing party.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
DAVID'S BRIDAL, INC.
By:
------------------------------------
Title:
[CLIPPER MERCHANT PARTNER L.P.]
By:
------------------------------------
Title:
[CLIPPER EQUITY PARTNER I, L.P.]
By:
------------------------------------
Title:
[CLIPPER MERBAN L.P.]
By:
------------------------------------
Title:
[CLIPPER CAPITAL ASSOCIATES, L.P.]
By:
------------------------------------
Title:
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30
[CLIPPER/EUROPEAN RE L.P.]
By:
------------------------------------
Title:
THE SELLING STOCKHOLDERS NAMED IN SCHEDULE
II AND III HERETO, ACTING SEVERALLY (EXCEPT
FOR THE CLIPPER SELLING STOCKHOLDERS)
By:
------------------------------------
Attorney-in-fact
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
INCORPORATED
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto
By: ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
------------------------------------
Title:
30
31
SCHEDULE I
NUMBER OF FIRM SHARES
UNDERWRITERS TO BE PURCHASED
------------ ---------------
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
---------------
Total 8,000,000
=========
32
SCHEDULE II
MANAGEMENT SELLING STOCKHOLDERS
NUMBER OF
NUMBER OF FIRM ADDITIONAL SHARES
NAME SHARES BEING SOLD BEING SOLD
---- ----------------- ----------
▇▇▇▇▇▇ ▇. Erlbaum 1,205,427 165,600
▇▇▇▇▇▇ ▇▇▇▇▇▇ 339,476 46,636
▇▇▇▇ ▇. Erlbaum 509,018 69,928
▇▇▇▇▇▇▇ ▇. Erlbaum 147,810 40,305
▇▇▇▇▇▇ ▇. ▇▇▇▇ 96,775 13,294
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 17,743 2,417
--------- ---------
Total 2,316,249 338,180
========= =========
33
SCHEDULE III
NON-MANAGEMENT SELLING STOCKHOLDERS
NUMBER OF
NUMBER OF FIRM ADDITIONAL
NAME SHARES BEING SOLD SHARES BEING SOLD
---- ----------------- -----------------
Clipper Equity Partner I, 529,460 72,738
L.P.
163,296 22,433
Clipper Capital Associates,
L.P.
Clipper Merchant Partner, 705,946 96,981
L.P
Clipper/European RE L.P. 352,973 48,491
Clipper Merban L.P. 705,946 96,981
The Vederman Family 206,004 28,300
Partnership
▇▇▇ Erlbaum 18,207 2,501
Marc Erlbaum 18,207 2,501
▇▇▇▇▇▇ Erlbaum 18,207 2,501
▇▇▇▇▇▇▇ ▇▇▇▇▇ 38,938 5,349
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 48,627 6,680
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 60,567 8,320
First Union Corporation 194,753 26,754
▇▇▇▇▇▇▇ Erlbaum and ▇▇▇▇ 83,692 11,497
Erlbaum as Trustees under
the Agreement of Trust of
S.H. Erlbaum
Addwood Limited 89,540 12,300
34
SCHEDULE III (CONTINUED)
▇▇▇▇▇▇▇ Erlbaum and ▇▇▇▇ 83,692 11,497
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Youtie, 24,333 3,342
Custodian for Haleigh R.
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Youtie, 29,608 4,067
Custodian for ▇▇▇▇▇▇▇ ▇▇▇▇
Youtie
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 48,387 6,647
Erlbaum Family L.P. 74,694 10,261
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, PY as 3,194 338
custodian
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, PY as 454 62
custodian
MCE Family Limited 66,741 9,168
Partnership
Retained Annuity Trust of 79,530 10,925
▇.▇▇▇▇▇▇▇▇▇
SPWJ Associates, L.P. 79,530 10,925
▇▇▇▇ Erlbaum, ▇▇▇▇ and 194,731 26,751
▇▇▇▇▇▇▇ Erlbaum as Trustees
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust 14,591 2,004
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust 14,591 2,004
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust 206,004 28,300
--------- ---------
Total 4,070,751 559,121
========= =========
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ANNEX I
PARTIES TO EXECUTE LOCK UPS
▇▇▇▇▇▇ ▇. Erlbaum ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, PY as custodian
▇▇▇▇▇▇ ▇▇▇▇▇▇ MCE Family Limited Partnership
▇▇▇▇ ▇. Erlbaum Retained Annuity Trust of
▇.▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. Erlbaum
SPWJ Associates, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ Erlbaum, ▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Erlbaum as Trustees
Clipper/Merchant Partner L.P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust
Clipper Equity Partner I, L.P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust
Clipper/Merban L.P. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust
Clipper Capital Associates, ▇.▇. ▇▇▇▇▇▇ Erlbaum
Clipper/European Re L.P. ▇▇▇▇▇▇▇ ▇▇▇▇▇
The Vederman Family Partnership ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ Erlbaum ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Marc Erlbaum First Union Corporation
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Erlbaum and ▇▇▇▇
Custodian for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Erlbaum as Trustees under
the Agreement of Trust
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Youtie, of S.H. Erlbaum
Custodian for ▇▇▇▇▇▇▇ ▇▇▇▇ Youtie
Addwood Limited
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Erlbaum Family L.P.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, PY as custodian
36
EXHIBIT A
Form of opinion from ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for the Company
and the Selling Shareholders, will include the following:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the state of Florida and
has the corporate power and authority to carry on its business as
described in the Prospectus and to own, lease and operate its properties;
(ii) 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, non-assessable and
not subject to any statutory preemptive or, to such counsel's knowledge,
similar rights;
(iii) the Shares to be issued and sold by the Company hereunder have
been duly authorized and, when issued and delivered to the Underwriters
against payment therefor as provided by this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any statutory preemptive or, to such counsel's
knowledge, similar rights;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company and by or on behalf of each Selling Stockholder, except the
Clipper Selling Stockholders, [Adwood/Kafry and ▇▇▇▇▇▇▇ ▇▇▇▇▇] [NEED TO
KNOW WHO WILL OPINE]
(v) the authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus;
(vi) based on the oral advisement of a member of the staff of the
Commission, the Registration Statement has become effective under the Act,
no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are, to such counsel's knowledge, pending
before the Commission;
(vii) the statements under the captions "Stock Option Plan", "Shares
Eligible for Future Sale", and "Description of Capital Stock" in the
Prospectus and Item 14 of Part II of the Registration Statement, insofar
as such statements constitute a summary of the legal matters or documents
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings;
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(viii) the execution, delivery and performance of this Agreement by
the Company, the compliance by the Company with all the provisions hereof
and the consummation by the Company of the transactions contemplated
hereby will not (A) require any material consent, approval, authorization
or other order of, or qualification with, any court or governmental body
or agency (except such as may be required under the securities or Blue Sky
laws of the various states), (B) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or to such counsel's knowledge, any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party, (C) to such counsel's
knowledge, violate or conflict with any applicable law or any rule,
regulation, or any judgment, order or decree of any court or any
governmental body or agency expressly applicable to the Company, any of
its subsidiaries or their respective property;
(ix) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective property is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described, or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
(x) 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 Prospectus, will not be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended;
(xi) to such counsel's knowledge, there are no contracts, agreements
or understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company or to require the
Company to include such securities with the Shares registered pursuant to
the Registration Statement except as set forth in the Registration
Agreement dated as of June 9, 1995, as amended on August 15, 1997.
(xii) the Registration Statement and the Prospectus and any
supplement thereto (except for the financial statements and other
financial
2
38
and statistical data included therein as to which no opinion need be
expressed) comply as to form in all material respects with the Act;
(xiii) immediately prior to the sale of Shares to be sold by the
Selling Stockholders under this Agreement each respective Selling
Stockholder was the sole registered owner of the Shares to be sold under
this Agreement, and the certificates evidencing all of such Shares bore no
restrictive legends other than legends relating to limitations on
transferability under Federal and state securities laws and the
Stockholders' Agreement dated as of June 9, 1995, as amended;
(xiv) the Custody Agreement of each Selling Stockholder is a valid
and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms;
(xv) the Power of Attorney of each Selling Stockholder is a valid
and binding instrument of such Selling Stockholder, enforceable in
accordance with its terms; and
(xvi) upon delivery of and payment for the Shares to be sold by each
Selling Stockholder pursuant to this Agreement, good title to such Shares
will pass to the Underwriters, free and clear of all adverse claims.
In addition, such counsel has participated in conferences with
representatives of the Underwriters, officers and other representatives of the
Company and representatives of the independent certified public accountants of
the Company, at which conferences the contents of the Registration Statement and
the Prospectus and related matters discussed and, although such counsel does not
pass upon and does not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement and the
Prospectus, on the basis of the foregoing (relying as to materiality on the
factual representations of, and discussions with, officers and other
representatives of the Company), no facts have come to such counsel's attention
which cause such counsel to believe that (i) the Registration Statement, as of
the time it became effective under Securities Act, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) the
Prospectus, as of the date thereof and as of the Closing Date, includes any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; except that such counsel expresses no
comment with respect to the financial statements and notes thereto, financial
schedules, and other financial and statistical information contained in the
Prospectus.
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The foregoing opinions are limited to the federal laws of the United
States, the laws of the Commonwealth of Pennsylvania, and the Florida Business
Corporation Act. Such counsel's opinions in paragraph regarding the validity
of all issued shares of capital stock of the Company is based in part on such
counsel's assumption that the stock books of the Company provided to such
counsel document all issuances of capital stock of the Company since the
respective dates of their incorporation. No facts have come to such counsel's
attention that cause such counsel to believe that such assumption is not
correct. In addition, such counsel's opinion expressed in paragraph above as
to the existence in good standing of the Company is based solely on a
certificate of good standing issued by the Secretary of State of the State of
Florida, and has the meaning imparted by such certificate.
In rendering the foregoing opinions and advisements, whenever a statement,
opinion or advisement set forth therein is qualified to "our knowledge," or any
similar phrase, it is intended to indicate that, during the course of such
counsel's representation of the Company in the subject transaction, no
information that would give such counsel current actual knowledge of the
inaccuracy of such statement, opinion or advisement has come to the attention of
those attorneys in our firm who have rendered legal services in connection with
the preparation of the Registration Statement and Prospectus. However, such
counsel has not undertaken any independent investigation to determine the
accuracy of such statement, opinion or advisement and no inference as to such
counsel's knowledge of any matters bearing on the accuracy of any such
statement, opinion or advisement should be drawn from the fact of such counsel's
representation of the Company.
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EXHIBIT B
Form of opinion from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for The Clipper Group L.P.,
will include the following:
(i) Each of [______________] is a [limited partnership] existing and
in good standing under the __________ Act.
(ii) the [General Partner] of each of the Clipper Selling
Stockholders has adopted by requisite vote the resolutions necessary to
authorize such Clipper Selling Stockholder's execution, delivery and
performance of the Underwriting Agreement. Each of the Clipper Selling
Stockholders has duly executed and delivered the Underwriting Agreement
and a Custody Agreement.
(iii) Each of the Clipper Selling Stockholders has the [partnership]
power to enter into the Underwriting Agreement and the Custody Agreement
and to sell, assign, transfer and deliver the Clipper Shares to be sold by
such Clipper Selling Stockholder in the manner provided in the
Underwriting Agreement.
(iv) Each Custody Agreement executed by a Clipper Selling
Stockholder is a valid and binding obligation of such Clipper Selling
Stockholder and (assuming the due authorization, execution and delivery
thereof by the other parties thereto) is enforceable against such Clipper
Selling Stockholder in accordance with its terms.
(v) Upon the Underwriters' payment to the Clipper Selling
Stockholders of the purchase price specified in the Underwriting Agreement
and the delivery to the Underwriters of the certificate or certificates
representing the Clipper Shares in accordance with the Underwriting
Agreement, the Underwriters will have acquired good title of the Clipper
Shares free of any adverse claim. For purposes of this opinion, we assume
that the Underwriters will have purchased the Clipper Shares in good faith
and without notice of any adverse claim or any defect in the validity of
the Clipper Shares and that the Underwriters will take possession at the
Closing of the Clipper Shares through DTC, pursuant to which the Selling
Shareholders have assigned the Clipper Shares to the Underwriters. The
term "adverse claim" as used in this opinion has the meaning given such
terms in Article 8 of the Uniform Commercial Code and does not include (A)
any claim which arises through the Underwriters or any person claiming
through the Underwriters (such as any security interest the Underwriters
may
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have granted in the shares) and (B) any adverse interest which would not
be extinguished upon the purchase of the Clipper Shares by a person who
qualifies as a "bona fide purchaser" or "protected purchaser" under
Section 8-303 of the Uniform Commercial Code. We have no actual knowledge
of the existence of any security interest of the kind specified in clause
(B) of the preceding sentence.
(vi) None of the Clipper Selling Stockholders were required to
obtain any consent, approval, authorization or order of or from any
governmental agency or body for the sale of the Clipper Shares being sold
by such Clipper Selling Stockholder or the consummation of the
transactions contemplated by the Underwriting Agreement, or the Custody
Agreement to which such Clipper Selling Stockholder is a party, except for
the order by the Commission declaring the Registration Statement
effective, and except registration of such Clipper Shares under the
Securities Act and such as may be required under state securities or blue
sky laws in connection with the offer, sale and distribution of such
Clipper Shares by the Underwriters.
(vii) the execution, delivery and performance of the Underwriting
Agreement and the Custody Agreement by each Clipper Selling Stockholder
and the sale of the Clipper Shares to you in accordance with the
Underwriting Agreement do not (A) violate the [partnership agreement] of
such Clipper Selling Stockholder or (B) constitute a violation by such
Clipper Selling Stockholder of any applicable provision of any law,
statute or regulation (except that we express no opinion in this paragraph
as to compliance with any disclosure requirement or any prohibition
against fraud or misrepresentation or as to whether performance of the
indemnification or contribution provision in the Underwriting Agreement
would be permitted).
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EXHIBIT C
Form of comfort letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
accountants, will contain the following information and statements with respect
to the financial statements and certain financial information contained in the
Registration Statement and the Prospectus:
(i) that in their opinion the financial statements examined by them
and included or incorporated by reference in the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related rules and regulations adopted by
the SEC;
(ii) that they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on the unaudited financial statements
included in the Registration Statement;
(iii) that on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements of
the Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related rules and regulations adopted by the SEC or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
[five] business days prior to the date of this Agreement, there was
any change in the capital stock or any increase in long-term debt or
decrease in consolidated Stockholders' equity of the Company; or
(C) for the period from the latest income statement included
in the Prospectus to the date of the latest available income
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year
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included in the Prospectus, in consolidated net sales or net
operating income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iv) for specified dollar amounts (or percentages derived from such
dollar amounts) and other financial information contained in the
Registration Statement, they have performed additional procedures, as
detailed in the tickmarks contained in such letter, noting agreement
except as otherwise specified in such letter.
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EXHIBIT D
Form of opinion of counsel for Adwood/Kafry and ▇. ▇▇▇▇▇