Exhibit 1.1
2,080,000 Shares
Axiom Inc.
Common Stock
U.S. UNDERWRITING AGREEMENT
---------------------------
July , 1997
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
As Representatives of the several
U.S. Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Axiom Inc., a Delaware corporation (the "Company") and an indirect
wholly-owned subsidiary of Security Services plc, a corporation organized
under the laws of England and Wales (the "Parent"), proposes to sell
2,080,000 shares (the "Firm Stock") of the Company's Common Stock, par value
$0.01 per share (the "Common Stock"), to the several U.S. Underwriters named in
Schedule 1 hereto (together, the "U.S. Underwriters"). In addition, the Company
proposes to grant to the U.S. Underwriters options to purchase up to an
additional 312,000 shares of the Common Stock on the terms and for the purposes
set forth in Section 2 (the "Option Stock"). The Firm Stock and the Option
Stock, if purchased, are hereinafter collectively called the "U.S. Stock." This
is to confirm the agreement concerning the purchase of the U.S. Stock from the
Company by the U.S. Underwriters.
It is understood by all parties that the Company and the Parent are
concurrently entering into an agreement dated the date hereof (the
"International Underwriting Agreement") providing for the sale by the Company
of an aggregate of 598,000 shares of the Common Stock (including the
over-allotments option thereunder, the "International Stock") through
arrangements with certain U.S. Underwriters outside the United States and
Canada (the "International Managers"), for whom Xxxxxx Brothers International
(Europe) and X.X. Xxxxxx Securities LTD. are
1
acting as lead managers (the "Lead Managers"). Except as used in Sections 2, 3,
4, 10 and 11 herein, and except as the context may otherwise require, references
herein to the "Stock" shall include all the Common Stock that may be sold
pursuant to either this Agreement or the International Underwriting Agreement.
The U.S. Underwriters and the International Managers simultaneously are entering
into an agreement among the U.S. and international underwriting syndicates
(the "Agreement Between U.S. Underwriters and International Managers") which
provides for, among other things, the transfer of the Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of the Stock contemplated by the foregoing, one relating to
the U.S. Stock and one relating to the International Stock. The international
form of prospectus will be identical to the U.S. prospectus except for certain
substitute pages as included in the registration statement and amendments
thereto referred to below. References herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall include
both the U.S. and international versions thereof. The U.S. Underwriters and
the International Managers are collectively referred to herein as the
"Underwriters."
1. Representations, Warranties and Agreements of the Company and the
Parent. The Company and the Parent represent, warrant and agree, severally
and jointly, that:
(a) A registration statement on Form S-1 (File No. 333-25439), including
all amendments thereto, with respect to the Stock has (i) been prepared by
the Company in conformity with the requirements of the United States
Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder,
(ii) been filed with the Commission under the Securities Act and
(iii) become effective under the Securities Act. Copies of such
registration statement and of the amendments thereto have been delivered by
the Company to you as the representatives (the "Representatives") of the
U.S. Underwriters. As used in this Agreement, "Effective Time" means
the date and the time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was declared effective by
the Commission; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereof, before it became effective
under the Securities Act and any prospectus filed with the Commission by
the Company with the consent of the Representatives pursuant to Rule 424(a)
of the Rules and Regulations; "Registration Statement" means such
registration statement, as amended, at the Effective Time, including all
information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations in accordance with
Section 5(a)
2
hereof and deemed to be a part of the registration statement
as of the Effective Time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final prospectus, as
first filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Rules and Regulations. Neither the Commission nor the
securities authority of any jurisdiction has issued any order suspending
the effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus, the Prospectus, the Registration
Statement, or any amendment or supplement thereto, refusing to permit the
effectiveness of the Registration Statement, or suspending the registration
or qualification of the Stock, nor has any of such authorities instituted
or threatened to institute any proceeding with respect to such an order.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the requirements
of the Securities Act and the Rules and Regulations and do not and will not,
as of the applicable Effective Date (as to the Registration Statement and
any amendment or supplement thereto) and as of the applicable filing date
(as to the Prospectus and any amendment or supplement thereto) contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives or Lead Managers by or
on behalf of any Underwriter specifically for inclusion therein.
(c) The Company and its subsidiary have been duly incorporated and
are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their ownership or lease of property or the conduct of
their respective businesses requires such qualification, except where the
failure to so qualify would not have a material adverse effect on the
general affairs, management, financial position, stockholders' equity,
results of operations, properties, assets, liabilities, future prospects or
business of the Company and its subsidiary, taken as a whole (herein, a
"Material Adverse Effect"), and have all power and authority necessary to
own or hold their respective properties and to conduct the businesses in
which they are engaged. The
3
Company has complied in all respects with the applicable requirements under
Delaware law for changing its corporate name. To date, the Company's sole
subsidiary has not conducted any material business operations and is not a
"significant subsidiary," as such term is defined in Rule 405 of the Rules
and Regulations.
(d) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and except as otherwise set forth in the Prospectus, are owned
directly or indirectly by the Parent, free and clear of all liens,
encumbrances, equities or claims and there are no preemptive rights or
other rights to subscribe for or to purchase or any restriction upon the
voting or transfer of any Common Stock pursuant to the Company's articles
of incorporation, by-laws or other governing documents or any agreement or
other instrument to which the Company is a party or by which it may be
bound.
(e) The shares of Stock to be issued and sold by the Company to the
U.S. Underwriters hereunder and under the International Underwriting
Agreement have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein and under the
International Underwriting Agreement, will be duly and validly issued,
fully paid and non-assessable and the Stock will conform to the description
thereof contained in the Prospectus; and the issuance of the Stock is not
subject to preemptive or other similar rights that have not been waived.
(f) Upon payment for and delivery of the Common Stock pursuant to this
Agreement, the U.S. Underwriters, or other persons in whose names Common
Stock is registered, will acquire good and valid title to such Common
Stock, in each case free and clear of all liens, encumbrances, equities,
preemptive rights and other claims arising through the Company.
(g) The Company and the Parent have all requisite corporate power and
authority to execute and deliver this Agreement and to perform their
obligations hereunder. This Agreement has been duly authorized, executed
and delivered by the Company and the Parent.
(h) The execution, delivery and performance of this Agreement by the
Company and the Parent and the consummation of the transactions contemplated
hereby, including but not limited to (i) the Company's corporate name change
from Securicor Communications Inc. to Axiom Inc., (ii) the disposition of
4
certain divisions and assets of the Company, and (iii) the merger
of Securicor Telesciences, Inc. with and into the Company
(collectively, the "Reorganization"), will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or the
Parent is a party or by which the Company or the Parent is bound or to which
any of the property or assets of the Company or the Parent is subject, nor
will such actions result in any violation of the provisions of the
certificate of incorporation, by-laws or other organizational documents of
the Company or the Parent or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or the Parent or any of their properties or assets; and except for
the registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the United States Securities Exchange Act of 1934, as amended
(the "Exchange Act") and applicable state securities laws in connection with
the purchase and distribution of the U.S. Stock by the U.S. Underwriters, no
consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the Company and the
Parent and the consummation of the transactions contemplated hereby.
(i) Except as described in the Prospectus, 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 Securities Act with respect to any securities of the
Company owned or to be owned by such person or the right (other than rights
which have been waived or satisfied) to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(j) Except as described in the Prospectus, the Company has not sold or
issued any shares of Common Stock during the six-month period preceding the
date of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act, other than shares issued
pursuant to employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding options, rights or
warrants outstanding prior to the commencement of such six-month period.
5
(k) Neither the Company nor subsidiary has sustained, since the date
of the latest audited financial statements included in the Prospectus, any
material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since such date, there
has not been any change in the capital stock or long-term debt of the
Company or its subsidiary or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity, results of operations, properties, assets,
liabilities, future prospects or business of the Company and its
subsidiary, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus.
(l) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at
the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(m) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus and who
have delivered the initial letter referred to in Section 8(g) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(n) Neither the Company nor its subsidiary owns any real property.
The Company and its subsidiary have good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiary; and all real and
personal property and buildings held under lease by the Company and its
subsidiary are held by them under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the Company
and its subsidiary.
6
(o) The Company and its subsidiary carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their properties.
(p) The Company and its subsidiary own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service
xxxx registrations, copyrights and licenses necessary for the conduct of
their respective businesses and have not received any notice that the
conduct of their respective businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights of
others.
(q) There are no legal or governmental proceedings pending to which
the Company is a party or, to the Company's knowledge, of which any
property or assets of the Company is the subject which, if determined
adversely to the Company, might have a Material Adverse Effect; and to the
best of the Company's and the Parent's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(r) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement.
(s) No relationship, direct or indirect, exists between or among the
Company on the one hand, and any director, nominee for election as a
director, officer, stockholder, customer or supplier of the Company on the
other hand, which is required to be described in the Prospectus which is
not so described.
(t) No labor disturbance by the employees of the Company exists or, to
the knowledge of the Company or the Parent, is imminent which might be
expected to have a Material Adverse Effect.
(u) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA)
for which the Company would have any liability; the Company has not incurred
and does not expect to
7
incur liability under (i) Title IV of ERISA with respect to termination of,
or withdrawal from, any "pension plan" or (ii) Section 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act,
which would cause the loss of such qualification.
(v) The Company and its subsidiary have filed all federal, state
and local income and franchise tax returns required to be filed through the
date hereof and have paid all taxes due thereon, and no tax deficiency has
been determined adversely to the Company or its subsidiary which has
had, nor do the Company or the Parent have any knowledge of any tax
deficiency which, if determined adversely to the Company, might have, a
Material Adverse Effect.
(w) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued or granted any securities other
than securities issued pursuant to employee benefit plans, qualified stock
or equity option plans or other employee compensation plans, (ii) incurred
any liability or obligation, direct or contingent, other than liabilities
and obligations which were incurred in the ordinary course of business,
(iii) entered into any transaction not in the ordinary course of business or
(iv) declared or paid any dividend on its capital stock.
(x) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for
its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its
assets is compared with existing assets at reasonable intervals.
(y) Neither the Company nor its subsidiary (i) is in violation
of its certificate of incorporation or by-laws, (ii) is in default in
any material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of
8
trust, loan agreement or other agreement or instrument to which it is a
party or by which it is bound or to which any of its properties or assets
is subject and (iii) is not in violation in any material respect of any
law, ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of
its business.
(z) Neither the Company nor its subsidiary, nor, to the Company's
knowledge, any director, officer, agent, employee or other person associated
with or acting on behalf of the Company, has used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; has made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or has made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
9
(aa) Neither the Company nor its subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
(bb) Neither the Company nor any of its officers, directors, or
affiliates (as defined in the Rules and Regulations) has taken or will take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the Stock.
2. Purchase of the U.S. Stock by the U.S. Underwriters. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell 2,080,00
shares of the Firm Stock to the several U.S. Underwriters and each of the
U.S. Underwriters, severally and not jointly, agrees to purchase the number
of shares of the Firm Stock set opposite that U.S. Underwriter's name in
Schedule l hereto. Each U.S. Underwriter shall be obligated to purchase from
the Company that number of shares of the Firm Stock which represents the same
proportion of the number of shares of the Firm Stock to be sold by the
Company as the number of shares of the Firm Stock set forth opposite the name
of such U.S. Underwriter in Schedule l represents of the total number of
shares of the Firm Stock to be purchased by all of the U.S. Underwriters
pursuant to this Agreement. The respective purchase obligations of the U.S.
Underwriters with respect to the Firm Stock shall be rounded among the U.S.
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Company grants to the U.S. Underwriters an option to
purchase up to 312,000 shares of Option Stock. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally for the account of the U.S. Underwriters in proportion to
the number of shares of Firm Stock set opposite the name of such U.S.
Underwriters in Schedule l hereto. The respective purchase obligations of each
U.S. Underwriter with respect to the Option Stock shall be adjusted by the
Representatives so that no U.S. Underwriter shall be obligated to purchase
Option Stock other than in l00 share amounts. The price of both the Firm Stock
and any Option Stock shall be $ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as
hereinafter defined),
10
as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein and under
the International Underwriting Agreement.
3. Offering of U.S. Stock by the U.S. Underwriters. Upon
authorization by the Representatives of the release of the
Firm Stock, the several U.S. Underwriters propose to offer
the Firm Stock for sale upon the terms and conditions set
forth in the Prospectus.
[It is understood that [ ] shares of the Firm Stock
will initially be reserved by the several U.S. Underwriters
and International Managers for offer and sale upon the terms
and conditions set forth in the Prospectus and in accordance
with the rules and regulations of the National Association
of Securities Dealers, Inc. to employees and persons having
business relationships with the Company who have heretofore
delivered to the Representatives offers or indications of
interest to purchase shares of Firm Stock in form
satisfactory to the Representatives, and that any allocation
of such Firm Stock among such persons will be made in
accordance with timely directions received by the
Representatives from the Company; provided, that under no
circumstances will the Representatives or any U.S.
Underwriter be liable to the Company or to any such person
for any action taken or omitted in good faith in connection
with such offering to employees and persons having business
relationships with the Company. It is further understood
that any shares of such Firm Stock which are not purchased
by such persons will be offered by the U.S. Underwriters to
the public upon the terms and conditions set forth in the
Prospectus.]
4. Delivery of and Payment for the U.S. Stock. Delivery of
and payment for the Firm Stock shall be made at the office
of Xxxxxxxxxx & Xxxxx LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx,
XX 00000, at 10:00 A.M., New York City time, on the third
full business day following the date of this Agreement or at
such other date or place as shall be determined by agreement
between the Representatives and the Company. This date and
time are sometimes referred to as the First Delivery Date.
On the First Delivery Date, the Company shall deliver or
cause to be delivered certificates representing the Firm
Stock to the Representatives for the account of each U.S.
Underwriter against payment to or upon the order of the
Company of the purchase price by certified or official bank
check or checks payable in immediately available funds.
Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further
condition of the obligation of each U.S. Underwriter
hereunder. Upon delivery, the Firm Stock shall be
registered in such names and in such denominations as the
Representatives shall request in writing not less than two
full business days prior to the First Delivery Date. For
the purpose of expediting the checking and packaging of the
certificates for the Firm Stock, the Company shall make the
certificates representing the Firm Stock available for
11
inspection by the Representatives in New York, New York, not
later than 2:00 P.M., New York City time, on the business
day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of
this Agreement the option granted in Section 2 may be
exercised in whole or in part, at any time and from time to
time, upon written notice being given to the Company by the
Representatives. Such notice shall set forth the aggregate
number of shares of Option Stock as to which the option is
being exercised, the names in which the shares of Option
Stock are to be registered, the denominations in which the
shares of Option Stock are to be issued and the date and
time, as determined by the Representatives, when the shares
of Option Stock are to be delivered; provided, however, that
this date and time shall not be earlier than the First
Delivery Date nor earlier than the second business day after
the date on which the option shall have been exercised nor
later than the fifth business day after the date on which
the option shall have been exercised. The date and time the
shares of Option Stock are delivered are sometimes referred
to as the "Second Delivery Date" and the First Delivery Date
and the Second Delivery Date are sometimes each referred to
as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made
at the place specified in the first sentence of the first
paragraph of this Section 4 (or at such other place as shall
be determined by agreement between the Representatives and
the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the
Company shall deliver or cause to be delivered the
certificates representing the Option Stock to the
Representatives for the account of each U.S. Underwriter
against payment to or upon the order of the Company of the
purchase price by certified or official bank check or checks
payable in immediately available funds. Time shall be of
the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the
obligation of each U.S. Underwriter hereunder. Upon
delivery, the Option Stock shall be registered in such names
and in such denominations as the Representatives shall
request in the aforesaid written notice. For the purpose of
expediting the checking and packaging of the certificates
for the Option Stock, the Company shall make the
certificates representing the Option Stock available for
inspection by the Representatives in New York, New York, not
later than 2:00 P.M., New York City time, on the business
day prior to the Second Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than Commission's
close of business on the second business day following the
execution and delivery of this Agreement or, if
12
applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act; to make no further
amendment or any supplement to the Registration Statement
or to the Prospectus except as permitted herein; to advise
the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to
furnish the Representatives with copies thereof; to advise
the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension
of the qualification of the Stock for offering or sale in
any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending
any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and
to counsel for the U.S. Underwriters a signed copy of the
Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Representatives such number
of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the
Registration Statement as originally filed with the
Commission and each amendment thereto, and (ii) each
Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of
the Prospectus is required at any time after the
Effective Time in connection with the offering or sale of
the Stock or any other securities relating thereto and if at
such time any events shall have occurred as a result of
which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to
comply with the Securities Act, to notify the
Representatives and, upon their request, to file such
document and to prepare and furnish without charge to each
U.S. Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time
reasonably request of an amended or supplemented
13
Prospectus which will correct such statement or omission
or effect such compliance;
(d) To file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any
supplement to the Prospectus that may, in the judgment of
the Company or the Representatives, be required by the
Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to
the Registration Statement or supplement to the Prospectus
or any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the
Representatives and counsel for the U.S. Underwriters and
obtain the consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date (but in
no event later than 15 months after the Effective Date), to
make generally available to the Company's security holders
and to deliver to the Representatives an earnings statement
of the Company (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule
158);
(g) For a period of five years following the Effective
Date, to furnish to the Representatives copies of all
materials furnished by the Company to its shareholders and
all public reports and all reports and financial statements
furnished by the Company to the principal national
securities exchange upon which the Common Stock may be
listed pursuant to requirements of or agreements with such
exchange or to the Commission pursuant to the Exchange Act
or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock
for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the
Stock;
(i) For a period of 180 days from the date of the
Prospectus, not to, directly or indirectly, offer for sale,
sell or otherwise dispose of (or enter into any transaction
or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the
future of) any shares of Common Stock (other than the Stock
and shares issued pursuant to employee benefit plans,
14
qualified stock option plans or other employee compensation
plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant
options, rights or warrants with respect to any shares of
Common Stock (other than the grant of options pursuant to
option plans existing on the date hereof), without the prior
written consent of Xxxxxx Brothers Inc. on behalf of the
Representatives;
(j) Prior to the Effective Date, to apply for the inclusion
of the Stock for quotation on the Nasdaq National Market and
to use its best efforts to effect such quotation, subject
only to official notice of issuance, prior to the First
Delivery Date;
(k) To apply the net proceeds from the sale of the Stock
being sold by the Company as set forth in the Prospectus;
and
(l) To take such steps as shall be necessary to ensure that
the Company shall not become an "investment company" within
the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission
thereunder.
6. Further Agreement of the Parent. The Parent agrees:
For a period of 180 days from the date of the
Prospectus, not to, and not to allow or cause Securicor
Communications LTD, the Company's direct parent,
or the Company to, directly or indirectly, offer for sale,
sell or otherwise dispose of (or enter into any transaction
or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the
future of) any shares of Common Stock, or sell or grant
options, rights or warrants with respect to any shares of
Common Stock, without the prior written consent of Xxxxxx
Brothers Inc. on behalf of the Representatives;
15
7. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable
in that connection; (b) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus, all as provided in this Agreement; (d) the costs of producing and
distributing this Agreement, the International Underwriting Agreement, the
Agreement Between U.S. Underwriters and International Managers, any
Supplemental Agreement Among U.S. Underwriters, the Agreement Among
International Managers, the International Selling Agreement and any other
related documents in connection with the offering, purchase, sale and
delivery of the Stock; (e) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. of the terms
of sale of the Stock; (f) any applicable listing or other fees including the
fees for quotation of the Common Stock on the Nasdaq National Market; (g) the
fees and expenses of qualifying the Stock under the securities laws of the
several jurisdictions as provided in Section 5(h) and of preparing, printing
and distributing a Blue Sky Memorandum (including related fees and expenses
of counsel to the U.S. Underwriters); (h) all costs and expenses of the
U.S. Underwriters, including the fees and disbursements of counsel for the
U.S. Underwriters, incident to the offer and sale of Common Stock by the U.S.
Underwriters to employees and persons having business relationships with the
Company, as described in Section 3; and (i) all other costs and expenses
incident to the performance of the obligations of the Company and the Parent
under this Agreement; provided that, except as provided in this Section 7 and
in Section 12 the U.S. Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Stock which they may sell and the expenses of advertising any offering of the
Stock made by the U.S. Underwriters.
8. Conditions of U.S. Underwriters' Obligations. The respective
obligations of the U.S. Underwriters hereunder are subject to the accuracy,
when made and on each Delivery Date, of the representations and warranties of
the Company and the Parent contained herein, to the performance by the
Company and the Parent of their
16
respective obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise
shall have been complied with or otherwise adequately addressed to the
Commission's satisfaction.
(b) No U.S. Underwriter or International Manager shall have discovered
and disclosed to the Company on or prior to such Delivery Date that the
Registration Statement or the Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of
Xxxxxxxxxx & Xxxxx LLP, counsel for the U.S. Underwriters, is material or
omits to state a fact which, in the opinion of such counsel, is material and
is required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the International
Underwriting Agreement, the Stock, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby, including but not limited to the
Reorganization,(i) the Company's corporate name change from Securicor
Communications Inc. to Axiom Inc., (ii) the disposition of certain divisions
and assets of Axiom Inc., and (iii) tthe merger of Securicor Telesciences,
Inc. with and into AxiomSecuricor Communications, Inc., (ii) the disposition
of certain divisions and assets of Securicor Communications, Inc. in
connection with such merger, and (iii) the Company's corporate name change,
shall be reasonably satisfactory in all material respects to counsel for the
U.S. Underwriters, and the Company and the Parent shall have furnished to
such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(d) Wolf, Block, Xxxxxx & Xxxxx-Xxxxx shall have furnished to the
Representatives its written opinion, as counsel to the Company, addressed to
the U.S. Underwriters and dated such Delivery Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing
as a foreign corporation in each jurisdiction in which its ownership or lease
of property or the conduct
17
of its business requires such qualification, except where the failure to be
so qualified could not be expected to have a Material Adverse Effect, has all
power and authority necessary to own or hold its properties and conduct the
businesses in which it is engaged and has complied in all respects with the
applicable requirements under Delaware law for changing its corporate name;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
(including the shares of Stock being delivered on such Delivery Date) have
been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus;
(iii) Pursuant to the Company's certificate of incorporation
or by-laws there are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any shares of
the Stock nor is there, to such counsel's knowledge, or any agreement or other
instrument relating to the foregoing to which the Company is a party or by
which the Company may be bound;
(iv) All real property and buildings held under lease by the Company and
its subsidiary are held by them under valid, subsisting and enforceable
leases, except where the failure to be so held could not be expected to
have a Material Adverse Effect;
(v) To such counsel's knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or its subsidiary is a party or of which any
property or assets of the Company or its subsidiary is the subject which, if
determined adversely to the Company or its subsidiary, might have a Material
Adverse Effect;
18
and, to such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified in such opinion on the date
specified therein and to such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued and, no
proceeding for that purpose is pending or threatened by the Commission;
(vii) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company prior to such Delivery
Date (other than the financial statements and schedules and other financial
data contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities Act and the Rules and Regulations;
(viii) To such counsel's knowledge, there are no contracts or other
documents which are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or by the Rules
and Regulations which have not been described or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations;
(ix) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and the International Underwriting
Agreement and to perform its obligations hereunder and thereunder and this
Agreement and the International Underwriting Agreement have each been duly
authorized, executed and delivered by the Company;
(x) The issue and sale of the shares of Stock being delivered on such
Delivery Date by the Company and the compliance by the Company with all of
the provisions of this Agreement and the consummation of the transactions
contemplated hereby, including but not limited to the Reorganization, will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument listed as an
exhibit to the Registration
19
Statement, nor will such actions result in any violation of the provisions of
the certificate of incorporation or by-laws of the Company or
any statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the Company or
any of its properties or assets; and, except for the
registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
by the National Association of Securities Dealers, Inc. (the "NASD") or under
the Exchange Act and applicable state securities laws in connection with the
purchase and distribution of the Stock by the U.S. Underwriters and
International Managers, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement by the
Company or the Parent and the consummation of the transactions contemplated
hereby including, but not limited to the Reorganization; and
(xi) Except as described in the Prospectus, 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 Securities Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered pursuant
to the Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the Securities
Act.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of
America, and the General Corporation Law Statute of the State of Delaware.
Such counsel shall also have furnished to the Representatives a written
statement, addressed to the U.S. Underwriters and dated such Delivery Date,
in form and substance satisfactory to the Representatives, to the effect that
(x) such counsel has acted as counsel to the Company in connection with the
Reorganization and the preparation of the Registration Statement, and (y)
based on the procedures set forth therein but without independent check or
verification, no facts have come to the attention of such counsel which lead
it to believe that the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading. The foregoing statement may
20
be qualified by a statement to the effect that such counsel does not (i)
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus or (ii)
express any views to the financial statements and schedules and other
financial data contained therein.
(e) Xxxxxxx Xxxxx shall have furnished to the Representatives its
written opinion, as United Kingdom counsel to the Parent, addressed to the
Representatives and the U.S. Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives, to the
effect that:
(i) The Parent is a company incorporated and existing with limited
liability under the laws of England.
(ii) The searches made at the Company's Registry in London on a recent
date revealed no order or resolution for the winding up of the Parent, no
notice of appointment of a receiver and no notice of an administration order.
Such opinion may state that such searches are not capable of revealing
whether or not a petition for an administration order or winding up order has
been presented and that notice of an administration or winding up order made
or resolution passed or receiver appointed may not be filed at the Companies
Registry immediately. Such opinion may further state that a director of the
Parent has certified to such counsel to the effect that to such director's
knowledge no such event had occurred at a recent date.
(iii) The Parent has all requisite corporate power to execute and
deliver this Agreement and perform its obligations hereunder.
(iv) The execution and delivery of this Agreement by the Parent and the
performance of its obligations hereunder have been duly authorized by
appropriate corporate action of the Parent.
(v) The choice of law and submission to jurisdiction clauses contained
in this Agreement would be recognized by the High Court in England such that
a final and conclusive money judgment of the courts of New York properly
obtained against the Parent pursuant to this Agreement otherwise than through
fraud or proceedings opposed to natural justice would be capable of being
enforced in England in
21
sterling save where its enforcement would be contrary to public policy.
(vi) The execution, delivery and performance by the Parent of this
Agreement will not violate any provision of (i) any English law or regulation
applicable to companies generally or (ii) the Parent's Memorandum or Articles
of Association.
(vii) No authorizations, approvals, consents, licences, exemptions,
filings, registrations, notarizations or other requirements of or with United
Kingdom governmental, judicial or public bodies or authorities are required
in connection with the execution, delivery or performance of this Agreement.
Such opinion may further state that the issue of stock by the Company
pursuant to this Agreement for full consideration to persons unconnected
(directly or indirectly) with the Parent is covered by the Treasury general
consent 15th March 1988 pursuant to section 765 of the Income and Corporation
Taxes Xxx 0000.
(viii) No stamp, registration or similar taxes or charges are payable
in England in respect of this Agreement.
(ix) The Parent is the registered holder of the entire
issued share of capital of Securicor Communications Ltd.
(f) The Representatives shall have received from Xxxxxxxxxx & Xxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated such Delivery
Date, with respect to the issuance and sale of the Stock, the Registration
Statement, the Prospectus and other related matters as the Representatives
may reasonably require, and the Company and the Parent shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Representatives
shall have received from Xxxxxx Xxxxxxxx LLP a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and dated
the date hereof (i) confirming that they are independent public accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since
the respective dates as
22
of which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to underwriters
in connection with registered public offerings.
(h) With respect to the letter of Xxxxxx Xxxxxxxx LLP referred to in
the preceding paragraph and delivered to the Representatives concurrently
with the execution of this Agreement (the "initial letter"), the Company
shall have furnished to the Representatives a letter (the "bring-down
letter") of such accountants, addressed to the U.S. Underwriters and dated
such Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of accountants
under Rule 201 of Regulation S-X of the Commission, (ii) stating, as of the
date of the bring-down letter (or, with respect to matters involving changes
or developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered
by the initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(i) The Company and the Parent shall have furnished to the
Representatives certificates, dated such Delivery Date, of their respective
Chairman of the Board, President or a Vice President and their chief
financial officers stating that:
(i) The representations, warranties and agreements of the Company and
the Parent in Section 1 are true and correct as of such Delivery Date; the
Company has complied with all its agreements contained herein; and the
conditions set forth in Sections 8(a) and 8(i) have been fulfilled; and
(ii) They have carefully examined the Registration Statement and the
Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue statement of
a material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (B) since the Effective Date no event has occurred which should have been
set forth in a supplement or amendment to the Registration Statement or the
Prospectus and is not so set forth.
23
(i) (i) Neither the Company nor its subsidiary
shall have sustained since the date of the latest audited
financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or
(ii) since such date there shall not have been any change in the
capital stock or long-term debt of the Company or its subsidiary
or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial
position, stockholders' equity, results of operations,
properties, assets, liabilities, future prospects or business of
the Company and its subsidiary, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Stock being delivered on such Delivery
Date on the terms and in the manner contemplated in the
Prospectus.
(k) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall
have been suspended or minimum prices shall have been established
on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall
have been declared by United States Federal or state authorities,
(iii) the United States shall have become engaged in hostilities,
there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United
States shall be such), the effect of which, in any such case
described in clause (i), (ii), (iii) or (iv), is to make it, in
the judgment of a majority in interest of the several U.S.
Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(l) The Nasdaq National Market shall have approved the
Stock for inclusion, subject only to official notice of
issuance and evidence of satisfactory distribution.
24
(m) The closing under the International Underwriting
Agreement shall have occurred concurrently with the Closing
hereunder on the Delivery Date.
(n) You shall have been furnished such additional
documents and certificates as you or counsel for the U.S.
Underwriters may reasonably request related to this Agreement
and the transactions contemplated hereby.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be
in compliance with the provisions hereof only if they are in
form and substance reasonably satisfactory to counsel for
the U.S. Underwriters.
9. Indemnification and Contribution.
(a) The Company and the Parent, severally and jointly,
shall indemnify and hold harmless each U.S. Underwriter, its
officers and employees and each person, if any, who controls any
U.S. Underwriter within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating
to purchases and sales of Stock), to which that U.S. Underwriter,
officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other
document prepared or executed by the Company (or based upon any
written information furnished by the Company) specifically for
the purpose of qualifying any or all of the Stock under the
securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a
"Blue Sky Application"), (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any amendment or supplement thereto, or
in any Blue Sky Application any material fact required to be
stated therein or necessary to make the statements therein not
misleading or (iii) any act or failure to act or any alleged act
or failure to act by any U.S. Underwriter in connection with, or
relating in any manner to, the Stock or the offering contemplated
hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based
upon matters covered by clause (i) or (ii) above (provided that
neither the Company nor the Parent shall be liable under this
clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss,
claim, damage, liability or action resulted directly from any
such acts or failures to act undertaken or omitted to be taken by
such U.S. Underwriter through its gross negligence or willful
misconduct), and shall reimburse each U.S. Underwriter and
25
each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by
that U.S. Underwriter, officer, employee or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that neither the
Company nor the Parent shall be liable in any such case to the
extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, or in any
Blue Sky Application, in reliance upon and in conformity with
written information concerning such U.S. Underwriter furnished to
the Company through the Representatives by or on behalf of any
U.S. Underwriter specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability
which the Company or the Parent may otherwise have to any U.S.
Underwriter or to any officer, employee or controlling person of
that U.S. Underwriter.
(b) Each U.S. Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and
employees, each of its directors (including any person who,
with his or her consent, is named in the Registration
Statement as about to become a director of the Company), and
each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action
in respect thereof, to which the Company or any such
director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any
Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or (B)
in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein
or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with
written information concerning such U.S. Underwriter
furnished to the Company through the Representatives by or
on behalf of that U.S. Underwriter specifically for
inclusion therein, and shall reimburse the Company and any
such director, officer or controlling person for any legal
or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection
with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity
26
agreement is in addition to any liability which any U.S.
Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except
to the extent it has been materially prejudiced by such failure
and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this
Section 9. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the Representatives
shall have the right to employ counsel to represent jointly the
Representatives and those other U.S. Underwriters and their
respective officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the U.S. Underwriters against the
Company or the Parent under this Section 9 if, in the reasonable
judgment of the Representatives, it is advisable for the
Representatives and those U.S. Underwriters, officers, employees
and controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company or the Parent. No
indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim
or action) unless, such settlement, compromise or consent
includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees
27
to indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 9(a) or 9(b) in
respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company and the Parent on the one hand and the Underwriters
on the other from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Parent on the
one hand and the U.S. Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Parent on the one hand and the
U.S. Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net
proceeds from the U.S. Stock purchased under this Agreement
received by the Company and the Parent, on the one hand, and the
total underwriting discounts and commissions received by the U.S.
Underwriters with respect to the shares of the U.S. Stock
purchased under this Agreement, on the other hand, bear to the
total gross proceeds from the offering of the shares of the U.S.
Stock under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault
shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied
by the Company, the Parent or the U.S. Underwriters, the intent
of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The Company, the Parent and the U.S. Underwriters
agree that it would not be just and equitable if contributions
pursuant to this Section were to be determined by pro rata
allocation (even if the U.S. Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section
shall be deemed to include, for purposes of this Section 9(d),
any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 9(d), no U.S. Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which the
28
Stock underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
U.S. Underwriters' obligations to contribute as provided in this
Section 9(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The U.S. Underwriters severally confirm and the Company
acknowledges that the statements with respect to the public
offering of the Stock by the U.S. Underwriters set forth on
the cover page of, the legends concerning
stabilization and passive market making on
the inside front cover page of, and, except for the 14th and 15th
paragraphs thereunder, the text appearing under the caption
"Underwriting" in, the Prospectus are correct and constitute
the only information concerning such U.S. Underwriters
furnished in writing to the Company by or on behalf of the
U.S. Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
10. Defaulting U.S. Underwriters. If, on either Delivery
Date, any U.S. Underwriter defaults in the performance of
its obligations under this Agreement, the remaining
non-defaulting U.S. Underwriters shall be obligated to
purchase the Stock which the defaulting U.S. Underwriter
agreed but failed to purchase on such Delivery Date in the
respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining
non-defaulting U.S. Underwriter in Schedule 1 hereto bears
to the total number of shares of the Firm Stock set opposite
the names of all the remaining non-defaulting U.S.
Underwriters in Schedule 1 hereto; provided, however, that
the remaining non-defaulting U.S. Underwriters shall not be
obligated to purchase any of the Stock on such Delivery Date
if the total number of shares of the Stock which the
defaulting U.S. Underwriter or U.S. Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the total
number of shares of the Stock to be purchased on such
Delivery Date, and any remaining non-defaulting U.S.
Underwriter shall not be obligated to purchase more than
110% of the number of shares of the Stock which it agreed to
purchase on such Delivery Date pursuant to the terms of
Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting U.S. Underwriters, or those other
underwriters satisfactory to the Representatives who so
agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among
them, all the Stock to be purchased on such Delivery Date.
If the remaining U.S. Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase
the shares which the defaulting U.S. Underwriter or U.S.
Underwriters agreed
29
but failed to purchase on such Delivery
Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the U.S. Underwriters to
purchase, and of the Company to sell, the Option Stock)
shall terminate without liability on the part of any
non-defaulting U.S. Underwriter or the Company or the
Parent, except that the Company and the Parent will continue
to be liable for the payment of expenses to the extent set
forth in Sections 7 and 12. As used in this Agreement, the
term "U.S. Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party
not listed in Schedule 1 hereto who, pursuant to this
Section 10, purchases Firm Stock which a defaulting U.S.
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting U.S.
Underwriter of any liability it may have to the Company and
the Parent for damages caused by its default. If other
underwriters are obligated or agree to purchase the Stock of
a defaulting or withdrawing U.S. Underwriter, either the
Representatives or the Company may postpone the Delivery
Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Company
or counsel for the U.S. Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other
document or arrangement.
11. Termination. The obligations of the U.S. Underwriters
hereunder may be terminated by the Representatives by notice
given to and received by the Company prior to delivery of
and payment for the Firm Stock if, prior to that time, any
of the events described in Sections 8(i) or 8(j), shall have
occurred or if the U.S. Underwriters shall decline to
purchase the Stock for any reason permitted under this
Agreement.
12. Reimbursement of U.S. Underwriters' Expenses. If (a)
the Company shall fail to tender the Stock for delivery to
the U.S. Underwriters by reason of any failure, refusal or
inability on the part of the Company or the Parent to
perform any agreement on its part to be performed, or
because any other condition of the U.S. Underwriters'
obligations hereunder required to be fulfilled by the
Company or the Parent is not fulfilled, the Company and the
Parent, severally and jointly, will reimburse the U.S.
Underwriters for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by
the U.S. Underwriters in connection with this Agreement and
the proposed purchase of the Stock, and upon demand the
Company and the Parent, severally and jointly, shall pay the
full amount thereof to the Representatives. If this
Agreement is terminated pursuant to Section 10 by reason of
the default of one or more U.S. Underwriters, neither the
Company nor the Parent shall be obligated to reimburse any
defaulting U.S. Underwriter on account of those expenses.
13. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
30
(a) if to the U.S. Underwriters, shall be delivered or sent
by mail, telex or facsimile transmission to Xxxxxx Brothers Inc.,
Three World Financial Center, New York, New York 10285,
Attention: Syndicate Department (Fax: 000-000-0000), with a
copy, in the case of any notice pursuant to Section 9(c), to the
Director of Litigation, Office of the General Counsel, Xxxxxx
Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000;
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention:
Xxxxxx X. Xxxxxxx (Fax: 000-000-0000); and
(c) if to the Parent, shall be delivered or sent by mail,
telex or facsimile transmission to Security Services plc,
[Address], Attention: [ ] (Fax: );
provided, however, that any notice to an U.S. Underwriter
pursuant to Section 9(c) shall be delivered or sent by mail,
telex or facsimile transmission to such U.S. Underwriter at its
address set forth in its acceptance telex to the Representatives,
which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt
thereof. The Company and the Parent shall be entitled to act and
rely upon any request, consent, notice or agreement given or made
on behalf of the U.S. Underwriters by Xxxxxx Brothers Inc. on
behalf of the Representatives.
14. Persons Entitled to Benefit of Agreement. This
Agreement shall inure to the benefit of and be binding upon
the U.S. Underwriters, the Company, the Parent and their
respective representatives and successors. This Agreement
and the terms and provisions hereof are for the sole benefit
of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Company and
the Parent contained in this Agreement shall also be deemed
to be for the benefit of the person or persons, if any, who
control any U.S. Underwriter within the meaning of Section
15 of the Securities Act and (B) the indemnity agreement of
the U.S. Underwriters contained in Section 9(b) of this
Agreement shall be deemed to be for the benefit of directors
of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the
Company within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
15. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Parent and the
U.S. Underwriters contained in this
31
Agreement or made by or on behalf on them, respectively, pursuant
to this Agreement, shall survive the delivery of and payment for
the Stock and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any
person controlling any of them.
16. Definition of the Terms "Business Day" and
"Subsidiary". For purposes of this Agreement, (a) "business day"
means any day on which the New York Stock Exchange, Inc. is open
for trading and (b) "subsidiary" has the meaning set forth in
Rule 405 of the Rules and Regulations.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York applicable
to agreements made and performed in the State of New York
without regard to the conflict of laws provision.
18. Consent to Jurisdiction. Each party irrevocably agrees
that any legal suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated hereby
("Related Proceedings") may be instituted in the federal courts
of the United States of America located in the City of New York
or the courts of the State of New York in each case located in
the Borough of Manhattan in the City of New York (collectively,
the "Specified Courts"), and irrevocably submits to the exclusive
jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a "Related
Judgment"), as to which such jurisdiction is non-exclusive) of
such courts in any such suit, action or proceeding. The parties
further agree that service of any process, summons, notice or
document by mail to such party's address set forth above shall be
effective service of process for any lawsuit, action or other
proceeding brought in any such court. The parties hereby
irrevocably and unconditionally waive any objection to the laying
of venue of any lawsuit, action or other proceeding in the
Specified Courts, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such
court that any such lawsuit, action or other proceeding brought
in any such court has been brought in an inconvenient forum.
Each party not located in the United States hereby irrevocably
appoints CT Corporation System, which currently maintains a New
York City office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Xxxxxx Xxxxxx of America, as its agent to receive service of
process or other legal summons for purposes of any such action or
proceeding that may be instituted in any state or federal court
in the City and State of New York.
19. Waiver of Immunity. With respect to any Related
Proceeding, each party irrevocably waives, to the fullest
extent permitted by applicable law, all immunity (whether on
the basis of sovereignty or otherwise) from jurisdiction,
service of process, attachment (both before and after
judgment) and execution to which it might otherwise be
32
entitled in the Specified Courts, and with respect to any
Related Judgment, each party waives any such immunity in the
Specified Courts or any other court of competent
jurisdiction, and will not raise or claim or cause to be
pleaded any such immunity at or in respect of any such
Related Proceeding or Related Judgment, including, without
limitation, any immunity pursuant to the United States
Foreign Sovereign Immunities Act of 1976, as amended.
20. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one
counterpart, the executed counterparts shall each be deemed
to be an original but all such counterparts shall together
constitute one and the same instrument.
21. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be
part of, or to affect the meaning or interpretation of, this
Agreement.
If the foregoing correctly sets forth the agreement among
the Company, the Parent and the U.S. Underwriters, please
indicate your acceptance in the space provided for that purpose
below.
33
Very truly yours,
AXIOM INC.
By:
-----------------------------
Name:
Title:
SECURITY SERVICES PLC
By:
---------------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
For themselves and as Representatives of the several
U.S. Underwriters named in Schedule 1 hereto
By: XXXXXX BROTHERS INC.
By:--------------------------------------
Authorized Representative
34
SCHEDULE 1
U.S. Underwriters Number of
Shares
Xxxxxx Brothers....................................
X.X. Xxxxxx Securities.............................
Total..................................
35
