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Exhibit 1
6,000,000 SHARES
AIRONET WIRELESS COMMUNICATIONS, INC.
COMMON STOCK, $0.01 PAR VALUE
UNDERWRITING AGREEMENT
[Date]
XXXX XXXXXXXX XXXXXXX
PRUDENTIAL SECURITIES, INC.
CIBC WORLD MARKETS CORP.
As Representatives of the several Underwriters
c/o Xxxx Xxxxxxxx Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Dear Sirs:
1. INTRODUCTORY. Aironet Wireless Communications, Inc., a Delaware
corporation (the "Company"), and Telxon Corporation, a Delaware
corporation (the "Selling Shareholder") propose to sell, pursuant to
the terms of this Agreement, to the several underwriters named in
Schedule A hereto (the "Underwriters," or, each, an "Underwriter"), an
aggregate of 6,000,000 shares of Common Stock, $0.01 par value (the
"Common Stock") of the Company. The aggregate of 6,000,000 shares so
proposed to be sold is hereinafter referred to as the "Firm Stock". The
Company and the Selling Shareholder also propose to sell to the
Underwriters, upon the terms and conditions set forth in Section 3
hereof, up to an additional 900,000 shares of Common Stock (the
"Optional Stock"). The Firm Stock and the Optional Stock are
hereinafter collectively referred to as the "Stock". Xxxx Xxxxxxxx
Xxxxxxx, a division of Xxxx Xxxxxxxx Incorporated ("Xxxx Xxxxxxxx
Xxxxxxx") and other Representatives are acting as representatives of
the several Underwriters and in such capacity are hereinafter referred
to as the "Representatives".
2. (a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDER. The Company represents and warrants to, and agrees with,
the several Underwriters and the Selling Shareholder, to the best of
its knowledge, represents and warrants to, and agrees with, the several
Underwriters that:
(i) A registration statement on Form S-1 (File No. 33-o ) in
the form in which it became or becomes effective and also in
such form as it may be when any post-effective amendment
thereto shall become effective with respect to the Stock,
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including any preeffective prospectuses included as part of
the registration statement as originally filed or as part of
any amendment or supplement thereto, or filed pursuant to Rule
424 under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder, copies of which have heretofore
been delivered to you, has been carefully prepared by the
Company in conformity with the requirements of the Securities
Act and has been filed with the Commission under the
Securities Act; one or more amendments to such registration
statement, including in each case an amended preeffective
prospectus, copies of which amendments have heretofore been
delivered to you, have been so prepared and filed. If it is
contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be
filed and must be declared effective before the offering of
the Stock may commence, the term "Registration Statement" as
used in this Agreement means the registration statement as
amended by said post-effective amendment. The term
"Registration Statement" as used in this Agreement shall also
include any registration statement relating to the Stock that
is filed and declared effective pursuant to Rule 462(b) under
the Securities Act. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the
Registration Statement, or, (A) if the prospectus included in
the Registration Statement omits information in reliance on
Rule 430A under the Securities Act and such information is
included in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act, the term "Prospectus" as
used in this Agreement means the prospectus in the form
included in the Registration Statement as supplemented by the
addition of the Rule 430A information contained in the
prospectus filed with the Commission pursuant to Rule 424(b)
and (B) if prospectuses that meet the requirements of Section
10(a) of the Securities Act are delivered pursuant to Rule 434
under the Securities Act, then (i) the term "Prospectus" as
used in this Agreement means the "prospectus subject to
completion" (as such term is defined in Rule 434(g) under the
Securities Act) as supplemented by (a) the addition of Rule
430A information or other information contained in the form of
prospectus delivered pursuant to Rule 434(b)(2) under the
Securities Act or (b) the information contained in the term
sheets described in Rule 434(b)(3) under the Securities Act,
and (ii) the date of such prospectuses shall be deemed to be
the date of the term sheets. The term "Preeffective
Prospectus" as used in this Agreement means the prospectus
subject to completion in the form included in the Registration
Statement at the time of the initial filing of the
Registration Statement with the Commission, and as such
prospectus shall have been amended from time to time prior to
the date of the Prospectus.
(ii) The Commission has not issued or threatened to issue any
order preventing or suspending the use of any Preeffective
Prospectus, and, at its date of issue, each Preeffective
Prospectus conformed in all material respects with the
requirements of the Securities Act and did not include any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the
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statements therein, in light of the circumstances under which
they were made, not misleading; and, when the Registration
Statement becomes effective and at all times subsequent
thereto up to and including each of the Closing Dates (as
hereinafter defined), the Registration Statement and the
Prospectus and any amendments or supplements thereto contained
and will contain all material statements and information
required to be included therein by the Securities Act and
conformed and will conform in all material respects to the
requirements of the Securities Act and neither the
Registration Statement nor the Prospectus, nor any amendment
or supplement thereto, included or will include 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 light of the circumstances under which
they were made, not misleading; provided, however, that the
foregoing representations, warranties and agreements shall not
apply to information contained in or omitted from any
Preeffective Prospectus or the Registration Statement or the
Prospectus or any such amendment or supplement thereto in
reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of any Underwriter,
directly or through you, specifically for use in the
preparation thereof; there is no franchise, lease, contract,
agreement or document required to be described in the
Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described
or filed therein as required; and all descriptions of any such
franchises, leases, contracts, agreements or documents
contained in the Registration Statement are accurate and
complete descriptions of such documents in all material
respects.
(iii) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, and except as set forth or contemplated in the
Prospectus, neither the Company nor any of its subsidiaries
has incurred any liabilities or obligations, direct or
contingent, nor entered into any transactions not in the
ordinary course of business, and there has not been any
material adverse change in the condition (financial or
otherwise), properties, business, management, prospects, net
worth or results of operations of the Company and its
subsidiaries considered as a whole, or any change in the
capital stock, short-term or long-term debt of the Company and
its subsidiaries considered as a whole.
(iv) The financial statements, together with the related
notes, set forth in the Prospectus and elsewhere in the
Registration Statement fairly present, on the basis stated in
the Registration Statement, the financial position and the
results of operations and changes in financial position of the
Company and its consolidated subsidiaries at the respective
dates or for the respective periods therein specified. Such
statements and related notes and schedules have been prepared
in accordance with generally accepted accounting principles
applied on a consistent basis except as may be set forth in
the Prospectus. The selected financial and statistical data
set forth in the Prospectus under the caption "Summary
Financial Data" fairly present, on the basis stated in the
Registration Statement, the information set forth therein.
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(v) PricewaterhouseCoopers LLC, who have expressed their
opinions on the audited financial statements included in the
Registration Statement and the Prospectus are independent
public accountants as required by the Securities Act and the
Rules and Regulations.
(vi) The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing as
corporations under the laws of their respective jurisdictions
of organization, with power and authority (corporate and
other) to own or lease their properties and to conduct their
businesses as described in the Prospectus; the Company is and
each of its subsidiaries are in possession of and operating in
compliance with all franchises, grants, authorizations,
licenses, permits, easements, consents, certificates and
orders required for the conduct of its business, all of which
are valid and in full force and effect; and the Company is and
each of such subsidiaries are duly qualified to do business
and in good standing as foreign corporations in all other
jurisdictions where their ownership or leasing of properties
or the conduct of their businesses requires such
qualification. The Company has and each of its subsidiaries
have all requisite power and authority, and all necessary
consents, approvals, authorizations, orders, registrations,
qualifications, licenses and permits of and from all public
regulatory or governmental agencies and bodies to own, lease
and operate its properties and conduct its business as now
being conducted and as described in the Registration Statement
and the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license or
permit contains a materially burdensome restriction not
adequately disclosed in the Registration Statement and the
Prospectus. The Company owns or controls, directly or
indirectly, only the following corporations, associations or
other entities:
(vii) The Company's authorized and outstanding capital stock
is on the date hereof, and will be on the Closing Dates, as
set forth under the heading "Capitalization" in the
Prospectus; the outstanding shares of common stock (including
the outstanding shares of Stock) of the Company conform to the
description thereof in the Prospectus and have been duly
authorized and validly issued and are fully paid and
nonassessable; are duly listed on the Nasdaq National Market
and have been issued in compliance with all federal and state
securities laws and were not issued in violation of or subject
to any preemptive rights or similar rights to subscribe for or
purchase securities and conform to the description thereof
contained in the Prospectus. Except as disclosed in and or
contemplated by the Prospectus and the financial statements of
the Company and related notes thereto included in the
Prospectus, the Company does not have outstanding any options
or warrants to purchase, or any preemptive rights or other
rights to subscribe for or to purchase any securities or
obligations convertible into, or any contracts or commitments
to issue or sell, shares of its capital stock or any such
options, rights, convertible securities or obligations, except
for options granted subsequent to the date of information
provided in the Prospectus pursuant to the Company's employee
and stock option plans as disclosed in the Prospectus. The
description of the Company's stock option
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and other stock plans or arrangements, and the options or
other rights granted or exercised thereunder, as set forth in
the Prospectus, accurately and fairly presents the information
required to be shown with respect to such plans, arrangements,
options and rights. All outstanding shares of capital stock of
each subsidiary have been duly authorized and validly issued,
and are fully paid and nonassessable and (except for
directors' qualifying shares) are owned directly by the
Company or by another wholly owned subsidiary of the Company
free and clear of any liens, encumbrances, equities or claims.
(viii) The Stock to be issued and sold by the Company to the
Underwriters hereunder has been duly and validly authorized
and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued, fully paid
and nonassessable and free of any preemptive or similar rights
and will conform to the description thereof in the Prospectus.
(ix) Except as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries or affiliates is a party or of which
any property of the Company or any subsidiary or affiliate is
subject, which, if determined adversely to the Company or any
such subsidiary or affiliate, might individually or in the
aggregate (A) prevent or adversely affect the transactions
contemplated by this Agreement, (B) suspend the effectiveness
of the Registration Statement, (C) prevent or suspend the use
of the Preeffective Prospectus in any jurisdiction or (D)
result in a material adverse change in the condition
(financial or otherwise), properties, business, management,
prospects, net worth or results of operations of the Company
and its subsidiaries considered as a whole and there is no
valid basis for any such legal or governmental proceeding; and
to the best of the Company's knowledge no such proceedings are
threatened or contemplated against the Company or any
subsidiary or affiliate by governmental authorities or others.
The Company is not a party nor subject to the provisions of
any material injunction, judgment, decree or order of any
court, regulatory body or other governmental agency or body.
The description of the Company's litigation under the heading
"Legal Proceedings" in the Prospectus is true and correct and
complies with the Rules and Regulations.
(x) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated
(A) will not result in any violation of the provisions of the
certificate of incorporation, by-laws or other organizational
documents of the Company or its subsidiary, or any law, order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or its subsidiary or any
of their properties or assets, (B) 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 to which the Company or any of its subsidiaries is
a party or by which it or any of its properties is or may be
bound, the Certificate of Incorporation, By-laws or other
organizational documents of the Company or any of
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its subsidiaries, or any law, order, rule or regulation of any
court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their
properties or will result in the creation of a lien.
(xi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company and
the consummation of the transactions contemplated hereby,
except such as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or under the Securities
Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or the securities or "Blue Sky" laws of any
jurisdiction in connection with the purchase and distribution
of the Stock by the Underwriters.
(xii) The Company has the full corporate power and authority
to enter into this Agreement and to perform its obligations
hereunder (including to issue, sell and deliver the Stock),
and this Agreement has been duly and validly authorized,
executed and delivered by the Company and is a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent
that rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or the public
policy underlying such laws.
(xiii) The Company and its subsidiaries are in all material
respects in compliance with, and conduct their businesses in
conformity with, all applicable federal, state, local and
foreign laws, rules and regulations or any court or
governmental agency or body; to the knowledge of the Company,
otherwise than as set forth in the Registration Statement and
the Prospectus, no prospective change in any of such federal
or state laws, rules or regulations has been adopted which,
when made effective, would have a material adverse effect on
the operations of the Company and its subsidiaries. In the
ordinary course of business, employees of the Company conduct
periodic reviews of the effect of Environmental Laws (as
defined below) on the business operations and properties of
the Company and its subsidiaries, in the ordinary course of
which they seek to identify and evaluate associated costs and
liabilities. Except as disclosed in the Registration
Statement, the Company and its subsidiaries are in compliance
with all applicable existing federal, state, local and foreign
laws and regulations relating to the protection of human
health or the environment or imposing liability or requiring
standards of conduct concerning any Hazardous Materials
("Environmental Laws"), except for such instances of
noncompliance which, either singly or in the aggregate, would
not have a material adverse effect. The term "Hazardous
Material" means (A) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, (B) any "hazardous waste"
as defined by the Resource Conservation and Recovery Act, as
amended, (C) any petroleum or petroleum product, (D) any
polychlorinated biphenyl and (E) any pollutant or contaminant
or hazardous, dangerous or toxic
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chemical, material, waste or substance regulated under or
within the meaning of any other Environment Law.
(xiv) The Company and its subsidiaries have filed all
necessary federal, state, local and foreign income, payroll,
franchise and other tax returns and have paid all taxes shown
as due thereon or with respect to any of their properties, and
there is no tax deficiency that has been, or to the knowledge
of the Company is likely to be, asserted against the Company
or any of its subsidiaries or any of their respective
properties or assets that would adversely affect the financial
position, business or operations of the Company and its
subsidiaries.
(xv) No person or entity has the right to require registration
of shares of Common Stock or other securities of the Company
because of the filing or effectiveness of the Registration
Statement or otherwise, except for persons and entities who
have expressly waived such right or who have been given proper
notice and have failed to exercise such right within the time
or times required under the terms and conditions of such
right.
(xvi) Neither the Company nor any of its officers, directors
or affiliates has taken or will take, directly or indirectly,
any action designed or intended to stabilize or manipulate the
price of any security of the Company, or which caused or
resulted in, or which might in the future reasonably be
expected to cause or result in, stabilization or manipulation
of the price of any security of the Company.
(xvii) The Company has provided you with all financial
statements since 199[_] to the date hereof that are available
to the officers of the Company, including financial statements
for the months of [______] and [______] of 1999.
(xviii) The Company and its subsidiaries own or possess the
right to use all patents, trademarks (including "Aironet",
"Aironet Wireless Communications", the Aironet logo and the
Stylized Aironet with logo), trademark registrations, service
marks, service xxxx registrations, trade names, copyrights,
licenses, inventions, trade secrets and rights described in
the Prospectus as being owned by them or any of them or
necessary for the conduct of their respective businesses, and
the Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and
its subsidiaries with respect to the foregoing. The Company's
business as now conducted and as proposed to be conducted does
not and will not infringe or conflict with in any material
respect patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses or other intellectual
property or franchise right of any person. Except as described
in the Prospectus, no claim has been made against the Company
alleging the infringement by the Company of any patent,
trademark, service xxxx, trade name, copyright, trade secret,
license in or other intellectual property right or franchise
right of any person.
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(xix) The Company and its subsidiaries have performed all
material obligations required to be performed by them under
all contracts required by Item 601(b)(10) of Regulation S-K
under the Securities Act to be filed as exhibits to the
Registration Statement, and neither the Company nor any of its
subsidiaries nor any other party to such contract is in
default under or in breach of any such obligations. Neither
the Company nor any of its subsidiaries has received any
notice of such default or breach.
(xx) The Company is not involved in any labor dispute nor is
any such dispute threatened. The Company is not aware that (A)
any executive, key employee or significant group of employees
of the Company or any subsidiary plans to terminate employment
with the Company or any such subsidiary or (B) any such
executive or key employee is subject to any noncompete,
nondisclosure, confidentiality, employment, consulting or
similar agreement that would be violated by the present or
proposed business activities of the Company and its
subsidiaries. Neither the Company nor any subsidiary has or
expect to have any liability for any prohibited transaction or
funding deficiency or any complete or partial withdrawal
liability with respect to any pension, profit sharing or other
plan which is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), to which the
Company or any subsidiary makes or ever has made a
contribution and in which any employee of the Company or any
subsidiary is or has ever been a participant. With respect to
such plans, the Company and each subsidiary are in compliance
in all material respects with all applicable provisions of
ERISA.
(xxi) The Company has obtained the written agreement described
in Section 8(l) of this Agreement from each of its officers,
directors and holders of Common Stock listed on Schedule C
hereto.
(xxii) The Company and its subsidiaries have, and the Company
and its subsidiaries as of the Closing Dates will have, good
and marketable title in fee simple to all real property and
good and marketable title to all personal property owned or
proposed to be owned by them which is material to the business
of the Company or of its subsidiaries, in each case free and
clear of all liens, encumbrances and defects except such as
are described the Prospectus or such as would not have a
material adverse effect on the Company and its subsidiaries
considered as a whole; and any real property and buildings
held under lease by the Company and its subsidiaries or
proposed to be held after giving effect to the transactions
described in the Prospectus are, or will be as of each of the
Closing Dates, held by them under valid, subsisting and
enforceable leases with such exceptions as would not have a
material adverse effect on the Company and its subsidiaries
considered as a whole, in each case except as described in or
contemplated by the Prospectus.
(xxiii) The Company and its subsidiaries are insured by
insurers of recognized financial responsibility against such
losses and risks and in such amounts as are customary in the
businesses in which they are engaged or propose to engage
after
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giving effect to the transactions described in the Prospectus;
and neither the Company nor any subsidiary of the Company has
any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be
necessary to continue their business at a cost that would not
materially and adversely affect the condition, financial or
otherwise, or the earnings, business or operations of the
Company and its subsidiaries considered as a whole, except as
described in or contemplated by the Prospectus.
(xxiv) Other than as contemplated by this Agreement, there is
no broker, finder or other party that is entitled to receive
from the Company any brokerage or finder's fee or other fee or
commission as a result of any of the transactions contemplated
by this Agreement.
(xxv) The Company has complied with all provisions of Section
517.075 Florida Statutes (Chapter 92-198; Laws of Florida).
(xxvi) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in
accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxvii) To the Company's knowledge, neither the Company nor
any of its subsidiaries nor any employee or agent of the
Company or any of its subsidiaries has made any payment of
funds of the Company or any of its subsidiaries or received or
retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Prospectus.
(xxviii) Neither the Company nor any of its subsidiaries is
or, after application of the net proceeds of this offering as
described under the caption "Use of Proceeds" in the
Prospectus, will become an "investment company" or an entity
"controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
(xxix) 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 as to the matters covered thereby.
(xxx) There are no issues related to the Company's, or any of
its subsidiaries', preparedness for the Year 2000 that (A) are
of a character required to be described
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or referred to in the Registration Statement or Prospectus by
the Securities Act or the Rules and Regulations which have not
been accurately described in the Registration Statement or
Prospectus or (B) might reasonably be expected to result in
any material adverse change in the condition (financial or
otherwise), earnings, operations, business or business
prospects of the Company and its subsidiaries considered as
one enterprise or that might materially affect their
properties, assets or rights. All internal computer systems
and each Constituent Component (as defined below) of those
systems and all computer-related products and each Constituent
Component (as defined below) of those products of the Company
and each of its subsidiaries fully comply with the Year 2000
Qualification Requirements. "Year 2000 Qualification
Requirements" means that the internal computer systems and
each Constituent Component (as defined below) of those systems
and all computer-related products and each Constituent
Component (as defined below) of those products of the Company
and each of its subsidiaries (i) have been reviewed to confirm
that they store, process (including sorting and performing
mathematical operations, calculations and computations), input
and output data containing date and information correctly
regardless of whether the date contains dates and times
before, on or after January 1, 2000, (ii) have been designated
to ensure date and time entry recognition, calculations that
accommodate same century and multi-century formulas and date
values, leap year recognition and calculations, and date data
interface values that reflect the century, (iii) accurately
manage and manipulate data involving dates and times,
including single century formulas and multi-century formulas,
and will not cause an abnormal ending scenario with the
application or generate incorrect values or invalid results
involving such dates, (iv) accurately process any date
rollover, and (v) accept and respond to two-digit year date
input in a manner that resolves any ambiguities as to the
century. "Constituent Component" means all software (including
operating systems, programs, packages and utilities),
firmware, hardware, networking components, and peripherals
provided as part of the configuration.
(b) REPRESENTATIONS AND WARRANTIES AND AGREEMENTS OF THE SELLING
SHAREHOLDER. The Selling Shareholder further represents and warrants
to, and agrees with, the several Underwriters that such Selling
Shareholder:
(i) Now has, and on the Closing Dates will have, valid and
marketable title to the Shares to be sold by such Selling
Shareholder, free and clear of any lien, claim, security
interest or other encumbrance, including, without limitation,
any restriction on transfer, and, to the extent such Selling
Shareholder is a corporation, has been duly organized and is
validly existing and in good standing as a corporation under
the laws of its jurisdiction of organization.
(ii) Now has, and on each of the Closing Dates will have, upon
delivery of and payment for each share of Stock hereunder,
full right, power and authority, any approval required by law
to sell, transfer, assign and deliver the Stock being sold by
such Selling Shareholder hereunder, and each of the several
Underwriters will acquire
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valid and marketable title to all of the Stock being sold to
the Underwriters by such Selling Shareholder, free and clear
of any liens, encumbrances, equities claims, restrictions on
transfer or other defects whatsoever.
(iii) For a period of one hundred eighty (180) days after the date
of this Agreement, without the consent of Xxxx Xxxxxxxx
Xxxxxxx, such Selling Shareholder will not offer to sell,
sell, contract to sell or otherwise dispose of any Stock or
securities convertible into or exchangeable for Stock,
including, without limitation Stock which may be deemed to be
beneficially owned by such Selling Shareholder in accordance
with the Rules and Regulations, except for the Stock being
sold hereunder.
(iv) Has, by execution and delivery of this Agreement created valid
and binding obligations of such Selling Shareholder,
enforceable against such Selling Shareholder in accordance
with its terms, except to the extent that rights to indemnity
hereunder may be limited by federal or state securities laws
or the public policy underlying such laws.
(v) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in a breach
or violation by such Selling Shareholder of any of the terms
or provisions of, or constitute a default by such Selling
Shareholder under, any indenture, mortgage, deed of trust,
trust (constructive or other), loan agreement, lease,
franchise, license or other agreement or instrument to which
such Selling Shareholder is a party or by which such Selling
Shareholder or any of its properties is bound, or any judgment
of any court or governmental agency or body applicable to such
Selling Shareholder or any of its properties, or to such
Selling Shareholder's knowledge, any statute, decree, order,
rule or regulation of any court or governmental agency or body
applicable to such Selling Shareholder or any of its
properties.
The Selling Shareholder agrees that the obligations of such
Selling Shareholder hereunder shall not be terminated by
operation of law, whether by the death or incapacity,
liquidation or distribution of such Selling Shareholder, or
any other event, that if such Selling Shareholder should die
or become incapacitated or is liquidated or dissolved or any
other event occurs, before the delivery of the Stock
hereunder, certificates for the Stock to be sold by such
Selling Shareholder shall be delivered on behalf of such
Selling Shareholder in accordance with the terms and
conditions of this Agreement shall be as valid as if such
death, incapacity, liquidation or dissolution or other event
had not occurred.
3. PURCHASE BY, AND SALE AND DELIVERY TO, UNDERWRITERS-CLOSING DATES. The
Company and the Selling Shareholder agree to sell to the Underwriters
the Firm Stock, with the number of shares to be sold by the Company and
the Selling Shareholder being the number of Shares set opposite its
name in Schedule B; and on the basis of the representations,
warranties, covenants and agreements herein contained, but subject to
the terms and conditions herein
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set forth, the Underwriters agree, severally and not jointly, to
purchase the Firm Stock from the Company and the Selling Shareholder,
the number of shares of Firm Stock to be purchased by each Underwriter
being set opposite its name in Schedule A, subject to adjustment in
accordance with Section 12 hereof.
The purchase price per share to be paid by the Underwriters to the
Company and the Selling Shareholder will be the price per share set for
[____] in the table on the cover page of the Prospectus under the
heading "Proceeds to the Company" (the "Purchase Price").
The Company and the Selling Shareholder will deliver the Firm Stock to
the Representatives for the respective accounts of the several
Underwriters (in the form of definitive certificates, issued in such
names and in such denominations as the Representatives may direct by
notice in writing to the Company and the Selling Shareholder given at
or prior to 12:00 Noon, New York Time, on the second full business day
preceding the First Closing Date (as defined below) or, if no such
direction is received, in the names of the respective Underwriters or
in such other names as Xxxx Xxxxxxxx Xxxxxxx may designate (solely for
the purpose of administrative convenience) and in such denominations as
Xxxx Xxxxxxxx Xxxxxxx may determine, against payment of the aggregate
Purchase Price therefor by certified or official bank check or checks
in immediately available funds (same day funds), payable to the order
of the Company and the Selling Shareholder, all at the offices of
[________________]. The time and date of the delivery and closing shall
be at 10:00 A.M., New York Time, on [_____________], 1999, in
accordance with Rule 15c6-1 of the Exchange Act. The time and date of
such payment and delivery are herein referred to as the "First Closing
Date". The First Closing Date and the location of delivery of, and the
form of payment for, the Firm Stock may be varied by agreement between
among the Company, the Selling Shareholder and Xxxx Xxxxxxxx Xxxxxxx.
The First Closing Date may be postponed pursuant to the provisions of
Section 12.
The Company and the Selling Shareholder shall make the certificates for
the Stock available to the Representatives for examination on behalf of
the Underwriters not later than 10:00 A.M., New York Time, on the
business day preceding the First Closing Date at the offices of Xxxx
Xxxxxxxx Xxxxxxx, 00 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000.
It is understood that Xxxx Xxxxxxxx Xxxxxxx or other Representatives,
individually and not as Representatives of the several Underwriters,
may (but shall not be obligated to) make payment to the Company or to
the Selling Shareholder on behalf of any Underwriter or Underwriters,
for the Stock to be purchased by such Underwriter or Underwriters. Any
such payment by Xxxx Xxxxxxxx Xxxxxxx or other Representative shall not
relieve such Underwriter or Underwriters from any of its or their other
obligations hereunder.
The several Underwriters agree to make an initial public offering of
the Firm Stock at the initial public offering price as soon after the
effectiveness of the Registration Statement as in their judgment is
advisable. The Representatives shall promptly advise the Company and
the Selling Shareholder of the making of the initial public offering.
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For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the
Prospectus, the Company and the Selling Shareholder hereby grants to
the Underwriters an option to purchase, severally and not jointly, up
to the aggregate number of shares of Optional Stock set forth opposite
the Company's and each such Selling Shareholder's respective names on
Schedule B hereto, for an aggregate of up to 900,000 shares. The price
per share to be paid for the Optional Stock shall be the Purchase
Price. The option granted hereby may be exercised as to all or any part
of the Optional Stock at any time, and from time to time, not more than
thirty (30) days subsequent to the effective date of this Agreement. No
Optional Stock shall be sold and delivered unless the Firm Stock
previously has been, or simultaneously is, sold and delivered. The
right to purchase the Optional Stock or any portion thereof may be
surrendered and terminated at any time upon notice by the Underwriters
to the Company and the Selling Shareholder.
The option granted hereby may be exercised by the Underwriters by
giving written notice from Xxxx Xxxxxxxx Xxxxxxx to the Company and the
Selling Shareholders setting forth the number of shares of the Optional
Stock to be purchased by them and the date and time for delivery of and
payment for the Optional Stock. Each date and time for delivery of and
payment for the Optional Stock (which may be the First Closing Date,
but not earlier) is herein called the "Option Closing Date" and shall
in no event be earlier than two (2) business days nor later than ten
(10) business days after written notice is given. (The Option Closing
Date and the First Closing Date are herein called the "Closing Dates".)
All purchases of Optional Stock from the Company and the Selling
Shareholders shall be made on a pro rata basis. Optional Stock shall be
purchased for the account of each Underwriter in the same proportion as
the number of shares of Firm Stock set forth opposite such
Underwriter's name in Schedule B hereto bears to the total number of
shares of Firm Stock (subject to adjustment by the Underwriters to
eliminate odd lots). Upon exercise of the option by the Underwriters,
the Company and the Selling Shareholders agree to sell to the
Underwriters the number of shares of Optional Stock set forth in the
written notice of exercise and the Underwriters agree, severally and
not jointly and subject to the terms and conditions herein set forth,
to purchase the number of such shares determined as aforesaid.
The Company and the Selling Shareholder will deliver the Optional Stock
to the Underwriters (in the form of definitive certificates, issued in
such names and in such denominations as the Representatives may direct
by notice in writing to the Selling Shareholders given at or prior to
12:00 Noon, New York Time, on the second full business day preceding
the Option Closing Date or, if no such direction is received, in the
names of the respective Underwriters or in such other names as Xxxx
Xxxxxxxx Xxxxxxx may designate (solely for the purpose of
administrative convenience) and in such denominations as Xxxx Xxxxxxxx
Xxxxxxx may determine, against payment of the aggregate Purchase Price
therefor by certified or official bank check or checks in Clearing
House funds (next day funds), payable to the order of the Company and
the Selling Shareholders all at the offices of [_________]. The Selling
Shareholder shall make the certificates for the Optional Stock
available to the Underwriters for examination not later than 10:00
A.M., New York Time, on the business day preceding the Option Closing
Date at the offices of Xxxx Xxxxxxxx
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Xxxxxxx, 00 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000. The Option
Closing Date and the location of delivery of, and the form of payment
for, the Option Stock may be varied by agreement between among the
Company, the Selling Shareholder and Xxxx Xxxxxxxx Xxxxxxx. The Option
Closing Date may be postponed pursuant to the provisions of Section 12.
4. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters that:
(a) The Company will (i) if the Company and the Representatives
have determined not to proceed pursuant to Rule 430A of the of
the Rules and Regulations, use its best efforts to cause the
Registration Statement to become effective, (ii) if the
Company and the Representatives have determined to proceed
pursuant to Rule 430A of the Rules and Regulations, use its
best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 430A
and Rule 424 of the Rules and Regulations and (iii) if the
Company and the Representatives have determined to deliver
Prospectuses pursuant to Rule 434 of the Rules and
Regulations, to use its best efforts to comply with all the
applicable provisions thereof. The Company will advise the
Representatives promptly as to the time at which the
Registration Statement becomes effective, will advise the
Representatives promptly of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement or of the institution of any
proceedings for that purpose, and will use its best efforts to
prevent the issuance of any such stop order and to obtain as
soon as possible the lifting thereof, if issued. The Company
will advise the Representatives promptly of the receipt of any
comments of the Commission or any request by the Commission
for any amendment of or supplement to the Registration
Statement or the Prospectus or for additional information and
will not at any time file any amendment to the Registration
Statement or supplement to the Prospectus which shall not
previously have been submitted to the Representatives a
reasonable time prior to the proposed filing thereof or to
which the Representatives shall reasonably object in writing
or which is not in compliance with the Securities Act and the
Rules and Regulations.
(b) The Company will prepare and file with the Commission,
promptly upon the request of the Representatives, any
amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may be
necessary to enable the several Underwriters to continue the
distribution of the Stock and will use its best efforts to
cause the same to become effective as promptly as possible.
(c) If at any time after the effective date of the Registration
Statement when a prospectus relating to the Stock is required
to be delivered under the Securities Act any event relating to
or affecting the Company or any of its subsidiaries occurs as
a result of which the Prospectus or any other prospectus as
then in effect would include an untrue statement of a material
fact, or omit to state any material fact
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necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or
if it is necessary at any time to amend the Prospectus to
comply with the Securities Act, the Company will promptly
notify the Representatives thereof and will prepare an amended
or supplemented prospectus which will correct such statement
or omission; and in case any Underwriter is required to
deliver a prospectus relating to the Stock nine (9) months or
more after the effective date of the Registration Statement,
the Company upon the request of the Representatives and at the
expense of such Underwriter will prepare promptly such
prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the
Securities Act.
(d) The Company will deliver to the Representatives, at or before
each of the Closing Dates, signed copies of the Registration
Statement, as originally filed with the Commission, and all
amendments thereto including all financial statements and
exhibits thereto and will deliver to the Representatives such
number of copies of the Registration Statement, including such
financial statements but without exhibits, and all amendments
thereto, as the Representatives may reasonably request. The
Company will deliver or mail to or upon the order of the
Representatives, from time to time until the effective date of
the Registration Statement, as many copies of the Preeffective
Prospectus as the Representatives may reasonably request. The
Company will deliver or mail to or upon the order of the
Representatives on the date of the initial public offering,
and thereafter from time to time during the period when
delivery of a prospectus relating to the Stock is required
under the Securities Act, as many copies of the Prospectus, in
final form or as thereafter amended or supplemented as the
Representatives may reasonably request; provided, however,
that the expense of the preparation and delivery of any
prospectus required for use nine (9) months or more after the
effective date of the Registration Statement shall be borne by
the Underwriters required to deliver such prospectus.
(e) The Company will make generally available to its shareholders
as soon as practicable, but not later than fifteen (15) months
after the effective date of the Registration Statement, an
earning statement which will be in reasonable detail (but
which need not be audited) and which will comply with Section
11(a) of the Securities Act, covering a period of at least
twelve (12) months beginning after the "effective date" (as
defined in Rule 158 under the Securities Act) of the
Registration Statement.
(f) The Company will cooperate with the Representatives to enable
the Stock to be registered or qualified for offering and sale
by the Underwriters and by dealers under the securities laws
of such jurisdictions as the Representatives may designate and
at the request of the Representatives will make such
applications and furnish such consents to service of process
or other documents as may be required of it as the issuer of
the Stock for that purpose; provided, however, that the
Company shall not be required to qualify to do business or to
file a general consent (other than that arising out of the
offering or sale of the Stock) to service of process in any
such
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jurisdiction where it is not now so subject. The Company will,
from time to time, prepare and file such statements and
reports as are or may be required of it as the issuer of the
Stock to continue such qualifications in effect for so long a
period as the Representatives may reasonably request for the
distribution of the Stock. The Company will advise the
Representatives promptly after the Company becomes aware of
the suspension of the qualifications or registration of (or
any such exception relating to) the Common Stock of the
Company for offering, sale or trading in any jurisdiction or
of any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any orders
suspending such qualifications, registration or exception, the
Company will, with the cooperation of the Representatives use
its best efforts to obtain the withdrawal thereof.
(g) The Company will furnish to its shareholders annual reports
containing financial statements certified by independent
public accountants and with quarterly summary financial
information in reasonable detail which may be unaudited.
During the period of five (5) years from the date hereof, the
Company will deliver to the Representatives and, upon request,
to each of the other Underwriters, as soon as they are
available, copies of each annual report of the Company and
each other report furnished by the Company to its shareholders
and will deliver to the Representatives, (i) as soon as they
are available, copies of any other reports (financial or
other) which the Company shall publish or otherwise make
available to any of its shareholders as such, (ii) as soon as
they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any
national securities exchange and (iii) from time to time such
other information concerning the Company as you may request.
So long as the Company has active subsidiaries, such financial
statements will be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated
in reports furnished to its shareholders generally. Separate
financial statements shall be furnished for all subsidiaries
whose accounts are not consolidated but which at the time are
significant subsidiaries as defined in the Rules and
Regulations.
(h) The Company will use its best efforts to list the Stock,
subject to official notice of issuance, on the Nasdaq National
Market concurrently with the effectiveness of the Registration
Statement.
(i) The Company will maintain a transfer agent and registrar for
its Common Stock.
(j) Prior to filing its quarterly statements on Form 10-Q, the
Company will have its independent auditors perform a limited
quarterly review of its quarterly numbers.
(k) The Company will not offer, sell, assign, transfer, encumber,
contract to sell, grant an option to purchase or otherwise
dispose of, other than by operation of law, gifts, pledges or
dispositions by estate representatives, any shares of Common
Stock or securities convertible into or exercisable or
exchangeable for Common Stock (including, without limitation,
Common Stock of the Company which may be
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deemed to be beneficially owned by the Company in accordance
with the Rules and Regulations) during the one hundred eighty
(180) days following the date on which the price of the Common
Stock to be purchased by the Underwriters is set, other than
the Company's sale of Common Stock hereunder and the Company's
issuance of Common Stock upon the exercise of warrants and
stock options which are presently outstanding and described in
the Prospectus.
(l) Prior to filing with the Commission any reports on Form SR
pursuant to Rule 463 of Rules and Regulations, the Company
will furnish a copy thereof to the counsel for the
Underwriters and receive and consider its comments thereon,
and will deliver promptly to the Representatives a signed copy
of each report on Form SR filed by it with the Commission.
(m) The Company will apply the net proceeds from the sale of the
Stock as set forth in the description under "Use of Proceeds"
in the Prospectus, which description complies in all respects
with the requirements of Item 504 of Regulation S-K.
(n) The Company will supply you with copies of all correspondence
to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock
under the Securities Act.
(o) Prior to each of the Closing Dates the Company will furnish to
you, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the
Company and its subsidiaries for any periods subsequent to the
periods covered by the financial statements appearing in the
Registration Statement and the Prospectus.
(p) Prior to each of the Closing Dates the Company will issue no
press release or other communications directly or indirectly
and hold no press conference with respect to the Company or
any of its subsidiaries, the financial condition, results of
operations, business, prospects, assets or liabilities of any
of them, or the offering of the Stock, without your prior
written consent. For a period of twelve (12) months following
the first Closing Date, the Company will use its best efforts
to provide to you copies of each press release or other public
communications with respect to the financial condition,
results of operations, business, prospects, assets or
liabilities of the Company at least twenty-four (24) hours
prior to the public issuance thereof or such longer advance
period as may reasonably be practicable.
(q) During the period of five (5) years hereafter, the Company
will furnish to the Representatives, and upon request of the
Representatives, to each of the Underwriters: (i) as soon as
practicable after the end of each fiscal year, copies of the
Annual Report of the Company containing the balance sheet of
the Company as of the close of such fiscal year and statements
of income, stockholders' equity and cash flows for the year
then ended and the opinion thereon of the Company's
independent public accountants; (ii) as soon as practicable
after the filing thereof,
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copies of each proxy statement, Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Report on Form 8-K or other
report filed by the Company with the Commission, or the NASD
or any securities exchange; and (iii) as soon as available,
copies of any report or communication of the Company mailed
generally to holders of its Common Stock.
5. PAYMENT OF EXPENSES. (a) The Company will pay (directly or by
reimbursement) all costs, fees and expenses incurred in connection with
expenses incident to the performance of its obligations under this
Agreement and in connection with the transactions contemplated hereby,
including but not limited to (i) all expenses and taxes incident to the
issuance and delivery of the Stock to the Representatives; (ii) all
expenses incident to the registration of the Stock under the Securities
Act; (iii) the costs of preparing stock certificates (including
printing and engraving costs); (iv) all fees and expenses of the
registrar and transfer agent of the Stock; (v) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale
of the Stock to the Underwriters; (vi) fees and expenses of the
Company's counsel and the Company's independent accountants; (vii) all
costs and expenses incurred in connection with the preparation,
printing filing, shipping and distribution of the Registration
Statement, each Preeffective Prospectus and the Prospectus (including
all exhibits and financial statements) and all amendments and
supplements provided for herein, the "Agreement Among Underwriters"
between the Representatives and the Underwriters, the Master Selected
Dealers' Agreement, the Underwriters' Questionnaire and the Blue Sky
memoranda (including related fees and expenses of counsel to the
Underwriters) and this Agreement; (viii) all filing fees, attorneys'
fees and expenses incurred by the Company or the Underwriters in
connection with exemptions from the qualifying or registering (or
obtaining qualification or registration of) all or any part of the
Stock for offer and sale and determination of its eligibility for
investment under the Blue Sky or other securities laws of such
jurisdictions as the Representatives may designate; (ix) fees and
expenses of counsel to the Underwriters; (x) all fees and expenses paid
or incurred in connection with filings made with the NASD; and (xi) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section.
(b) The Selling Shareholder will pay (directly or by
reimbursement) all fees and expenses incident to the
performance of such Selling Shareholder's obligations under
this Agreement which are not otherwise specifically provided
for herein, including but not limited to any fees and expenses
of counsel for such Selling Shareholder and all expenses and
taxes incident to the sale and delivery of the Stock to be
sold by such Selling Shareholder to the Underwriters
hereunder.
(c) In addition to their other obligations under Section 6(a) and
(b) hereof, the Company and the Selling Shareholder jointly
and severally agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon (i) any statement or
omission or any alleged statement or omission, (ii) any act or
failure to act or any alleged act or failure to act or (iii)
any breach or inaccuracy in their representations and
warranties, they will reimburse each Underwriter on a
quarterly basis for all reasonable legal or other
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expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the
Company's and the Selling Shareholder's obligation to
reimburse each Underwriter for such expenses and the
possibility that such payments might later be held to have
been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held
to have been improper, each Underwriter shall promptly return
it to the Company and each Selling Shareholder, as the case
may be, together with interest, compounded daily, determined
on the basis of the prime rate (or other commercial lending
rate for borrowers of the highest credit standing) announced
from time to timed by [_____________], New York, New York (the
"Prime Rate"). Any such interim reimbursement payments which
are not made to an Underwriter in a timely manner as provided
below shall bear interest at the Prime Rate from the due date
for such reimbursement. This expense reimbursement agreement
will be in addition to any other liability which the Company
or the Selling Shareholder may otherwise have. The request for
reimbursement will be sent to the Company with a copy to the
Selling Shareholder. In the event that the Company fails to
make such reimbursement payment within thirty (30) days of the
reimbursement request, the Representatives shall notify the
Selling Shareholder of their obligation to make such
reimbursement payments within fifteen (15) days; provided,
however, that the Selling Shareholder shall be required to
advance at such time only its pro rata portion of the
reimbursement payment.
(d) In addition to its other obligations under Section 6(c)
hereof, each Underwriter severally agrees that, as an interim
measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement
or omission, described in Section 6(c) hereof which relates to
information furnished to the Company pursuant to Section 6(c)
hereof, it will reimburse the Company (and, to the extent
applicable, each officer, director, or controlling person or
Selling Shareholder) on a quarterly basis for all reasonable
legal or other expenses incurred in connection with
investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding
the absence of a judicial determination as to the propriety
and enforceability of the Underwriters' obligation to
reimburse the Company (and, to the extent applicable, each
officer, director, or controlling person or Selling
Shareholder) for such expenses and the possibility that such
payments might later be held to have been improper by a court
of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the
Company (and, to the extent applicable, each officer,
director, or controlling person or Selling Shareholder) shall
promptly return it to the Underwriters together with interest,
compounded daily, determined on the basis of the Prime Rate.
Any such interim reimbursement payments which are not made to
the Company within thirty (30) days of a request for
reimbursement shall bear interest at the Prime Rate from the
date of such request. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise
have.
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(e) It is agreed that any controversy arising out of the operation
of the interim reimbursement arrangements set forth in
paragraph (c) and/or (d) of this Section 5, including the
amounts of any requested reimbursement payments and the method
of determining such amounts, shall be settled by arbitration
conducted under the provisions of the Constitution and Rules
of the Board of Governors of the New York Stock Exchange, Inc.
or pursuant to the Code of Arbitration Procedure of the NASD.
Any such arbitration must be commenced by service of a written
demand for arbitration or written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the
event the party demanding arbitration does not make such
designation of an arbitration tribunal in such demand or
notice, then the party responding to said demand or notice is
authorized to do so. Such an arbitration would be limited to
the operation of the interim reimbursement provisions
contained in paragraph (c) and/or (d) of this Section 5 and
would not resolve the ultimate propriety or enforceability of
the obligation to reimburse expenses which is created by the
provisions of Section 6.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of the Securities Act and
the respective officers, directors, partners, employees,
representatives and agents of each of such Underwriter (collectively,
the "Underwriter Indemnified Parties" and, each, an "Underwriter
Indemnified Party"), against any losses, claims, damages, liabilities
or expenses (including the reasonable cost of investigating and
defending against any claims therefor and counsel fees incurred in
connection therewith), joint or several, which may be based upon the
Securities Act, or any other statute or at common law, (i) on the
ground or alleged ground that any Preeffective Prospectus, the
Registration Statement or the Prospectus (or any Preeffective
Prospectus, the Registration Statement or the Prospectus as from time
to time amended or supplemented) includes or allegedly includes an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, unless such statement or omission was made in
reliance upon, and in conformity with, written information furnished to
the Company by any Underwriter, directly or through the
Representatives, specifically for use in the preparation thereof or
(ii) for any act or failure to act or any alleged act or failure to act
by any 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 expense
arising out of or based upon matters covered by clause (i) above
(provided that the Company shall not be liable under this clause (ii)
to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, or liability or
expense resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct). The Company will be entitled to
participate at its own expense in the defense or, if it so elects, to
assume the defense of any suit brought to enforce any such liability,
but if the Company elects to assume the defense, such defense shall be
conducted by counsel chosen by it and reasonably acceptable to the
Underwriters. In the event the
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Company elects to assume the defense of any such suit and retain such
counsel, any Underwriter Indemnified Parties, defendant or defendants
in the suit, may retain additional counsel but shall bear the fees and
expenses of such counsel unless (A) the Company shall have specifically
authorized the retaining of such counsel or (B) the parties to such
suit include any such Underwriter Indemnified Parties, and the Company
and such Underwriter Indemnified Parties at law or in equity have been
advised by counsel to the Underwriters that one or more legal defenses
may be available to it or them which may not be available to the
Company, in which case the Company shall not be entitled to assume the
defense of such suit notwithstanding its obligation to bear the fees
and expenses of such counsel. This indemnity agreement is not exclusive
and will be in addition to any liability which the Company might
otherwise have and shall not limit any rights or remedies which may
otherwise be available at law or in equity to each Underwriter
Indemnified Party.
(b) The Selling Shareholder agrees to indemnify and hold harmless
each Underwriter Indemnified Party against any losses, claims,
damages, liabilities or expenses (including, unless such
Selling Shareholder elects to assume the defense, the
reasonable cost of investigating and defending against any
claims therefor and counsel fees incurred in connection
therewith), joint or several, which may be based upon the
Securities Act, or any other statute or at common law, on the
ground or alleged ground that any Preeffective Prospectus, the
Registration Statement or the Prospectus (or any Preeffective
Prospectus, the Registration Statement or the Prospectus, as
from time to time amended and supplemented) includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading, unless such statement or
omission was made in reliance upon, and in conformity with,
written information furnished to the Company by any
Underwriter, directly or through the Representatives,
specifically for use in the preparation thereof. Such Selling
Shareholder shall be entitled to participate at his own
expense in the defense, or, if it so elects, to assume the
defense of any suit brought to enforce any such liability,
but, if such Selling Shareholder elects to assume the defense,
such defense shall be conducted by counsel chosen by him. In
the event that any Selling Shareholder elects to assume the
defense of any such suit and retain such counsel, the
Underwriter Indemnified Parties, defendant or defendants in
the suit, may retain additional counsel but shall bear the
fees and expenses of such counsel unless (i) such Selling
Shareholder shall have specifically authorized the retaining
of such counsel or (ii) the parties to such suit include such
Underwriter Indemnified Parties and such Selling Shareholder
and such Underwriter Indemnified Parties have been advised by
counsel that one or more legal defenses may be available to it
or them which may not be available to such Selling
Shareholder, in which case such Selling Shareholder shall not
be entitled to assume the defense of such suit notwithstanding
its obligation to bear the fees and expenses of such counsel.
This indemnity agreement is not exclusive and will be in
addition to any liability which such Selling Shareholder might
otherwise have and shall not limit any rights or remedies
which may otherwise be available at law or in equity to each
Underwriter Indemnified
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Party. The Company and the Selling Shareholder may agree, as
among themselves and without limiting the rights of the
Underwriters under this Agreement, as to their respective
amounts of such liability for which they each shall be
responsible.
(c) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of
its officers who have signed the Registration Statement and
each person, if any, who controls the Company within the
meaning of the Securities Act (collectively, the "Company
Indemnified Parties") and the Selling Shareholder and each
person, if any, who controls the Selling Shareholder within
the meaning of the Securities Act (collectively, the
"Shareholder Indemnified Parties"), against any losses,
claims, damages, liabilities or expenses (including, unless
the Underwriter or Underwriters elect to assume the defense,
the reasonable cost of investigating and defending against any
claims therefor and counsel fees incurred in connection
therewith), joint or several, which arise out of or are based
in whole or in part upon the Securities Act, the Exchange Act
or any other federal, state, local or foreign statute or
regulation, or at common law, on the ground or alleged ground
that any Preeffective Prospectus, the Registration Statement
or the Prospectus (or any Preeffective Prospectus, the
Registration Statement or the Prospectus, as from time to time
amended and supplemented) includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances in which they were
made, not misleading, but only insofar as any such statement
or omission was made in reliance upon, and in conformity with,
written information furnished to the Company by such
Underwriter, directly or through the Representatives,
specifically for use in the preparation thereof; provided,
however, that in no case is such Underwriter to be liable with
respect to any claims made against any Company Indemnified
Party or Shareholder Indemnified Party against whom the action
is brought unless such Company Indemnified Party or
Shareholder Indemnified Party shall have notified such
Underwriter in writing within a reasonable time after the
summons or other first legal process giving information of the
nature of the claim shall have been served upon the Company
Indemnified Party or Shareholder Indemnified Party, but
failure to notify such Underwriter of such claim shall not
relieve it from any liability which it may have to any Company
Indemnified Party or Shareholder Indemnified Party otherwise
than on account of its indemnity agreement contained in this
paragraph. Such Underwriter shall be entitled to participate
at its own expense in the defense, or, if it so elects, to
assume the defense of any suit brought to enforce any such
liability, but, if such Underwriter elects to assume the
defense, such defense shall be conducted by counsel chosen by
it. In the event that any Underwriter elects to assume the
defense of any such suit and retain such counsel, the Company
Indemnified Parties or Shareholder Indemnified Parties and any
other Underwriter or Underwriters or controlling person or
persons, defendant or defendants in the suit, shall bear the
fees and expenses of any additional counsel retained by them,
respectively. The Underwriter against whom indemnity may be
sought shall not be liable to indemnify any person for any
settlement of any such claim effected without
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such Underwriter's consent. This indemnity agreement is not
exclusive and will be in addition to any liability which such
Underwriter might otherwise have and shall not limit any
rights or remedies which may otherwise be available at law or
in equity to any Company Indemnified Party or Shareholder
Indemnified Party.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified
party under subsection (a) or (b) or (c) above in respect of
any losses, claims, damages, liabilities or expenses (or
actions in respect thereof) referred to herein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (or actions in
respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the
Selling Shareholder on the one hand and the Underwriters on
the other from the offering of the Stock. If, however, the
allocation provided by the immediately preceding sentence is
not permitted by applicable law, then each indemnifying party
shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative
fault of the Company and the Selling Shareholder on the one
hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses (or actions in respect
thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company
and the Selling Shareholder on the one hand and the
Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling
Shareholder bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault 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 Selling Shareholder or the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholder and the Underwriters
agree that it would not be just and equitable if contribution
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 above. The amount
paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or expenses (or actions
in respect thereof) referred to above shall be deemed to
include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating,
defending, settling or compromising any such claim.
Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
shares of the Stock 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
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such untrue or alleged untrue statement or omission or alleged
omission. The Underwriters' obligations to contribute are
several in proportion to their respective underwriting
obligations and not joint. 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.
7. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations,
warranties and other statements of the Company, the Selling Shareholder
and the several Underwriters, as set forth in this Agreement or made by
them respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation made by or on behalf
of any Underwriter, the Selling Shareholder, the Company or any of its
officers or directors or any controlling person, and shall survive
delivery of and payment for the Stock.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations of
the several Underwriters hereunder shall be subject to the accuracy, at
and (except as otherwise stated herein) as of the date hereof and at
and as of each of the Closing Dates, of the representations and
warranties made herein by the Company and the Selling Shareholder, to
compliance at and as of each of the Closing Dates by the Company and
the Selling Shareholder with their covenants and agreements herein
contained and other provisions hereof to be satisfied at or prior to
each of the Closing Dates, and to the following additional conditions:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness thereof shall have
been issued and no proceedings for that purpose shall have
been initiated or, to the knowledge of the Company or the
Representatives, shall be threatened by the Commission, and
any request for additional information on the part of the
Commission (to be included in the Registration Statement or
the Prospectus or otherwise) shall have been complied with to
the reasonable satisfaction of the Representatives. Any
filings of the Prospectus, or any supplement thereto, required
pursuant to Rule 424(b) or Rule 434 of the Rules and
Regulations, shall have been made in the manner and within the
time period required by Rule 424(b) and Rule 434 of the Rules
and Regulations, as the case may be.
(b) The Representatives shall have been satisfied that there shall
not have occurred any change, on a consolidated basis, prior
to each of the Closing Dates in the condition (financial or
otherwise), properties, business, management, prospects, net
worth or results of operations of the Company and its
subsidiaries considered as a whole, or any change in the
capital stock, short-term or long-term debt of the Company and
its subsidiaries considered as a whole, such that (i) the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact
which, in the opinion of the Representatives, is material, or
omits to state a fact which, in the opinion of the
Representatives, is required to be stated therein or
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is necessary to make the statements therein not misleading, or
(ii) it is unpracticable in the reasonable judgment of the
Representatives to proceed with the public offering or
purchase the Stock as contemplated hereby.
(c) The Representatives shall be satisfied that no legal or
governmental action, suit or proceeding affecting the Company
which is material and adverse to the Company or which affects
or may affect the Company's or the Selling Stockholder's
ability to perform their respective obligations under this
Agreement shall have been instituted or threatened and there
shall have occurred no material adverse development in any
existing such action, suit or proceeding.
(d) At the time of execution of this Agreement, the
Representatives shall have received from
PricewaterhouseCoopers LLC, independent certified public
accountants, a letter, dated the date hereof, in form and
substance satisfactory to the Underwriters.
(e) The Representatives shall have received from
PricewaterhouseCoopers LLC, independent certified public
accountants, letters, dated each of the Closing Dates, to the
effect that such accountants reaffirm, as of each of the
Closing Dates, and as though made on each of the Closing
Dates, the statements made in the letter furnished by such
accountants pursuant to paragraph (d) of this Section 8.
(f) The Representatives shall have received from Xxxxxxx Xxxxx
Xxxxxx, LLP, counsel for the Company, opinions, dated each of
the Closing Dates, to the effect set forth in Exhibit I
hereto.
(g) The Representatives shall have received from Xxxxxxx Xxxxx
Xxxxxx, LLP counsel for the Selling Shareholders, an opinion
dated each of the Closing Dates to the effect set forth in
Exhibit [__] hereto.
(h) The Representatives shall have received from Xxxxx, Xxxxxxx &
Xxxxxxxxx, LLP, counsel for the Underwriters, their opinions
dated each of the Closing Dates with respect to the
incorporation of the Company, the validity of the Stock, the
Registration Statement and the Prospectus and such other
related matters as it may reasonably request, and the Company
and the Selling Shareholder shall have furnished to such
counsel such documents as they may request for the purpose of
enabling them to pass upon such matters.
(i) The Representatives shall have received a certificates, dated
each of the Closing Dates, of the chief executive officer or
the President and the chief financial or accounting officer of
the Company to the effect that:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued, and, to the
best of the knowledge of the signers, no proceedings
for that purpose have been instituted or are pending
or contemplated under the Securities Act;
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(ii) Neither any Preeffective Prospectus, as of its date,
nor the Registration Statement nor the Prospectus,
nor any amendment or supplement thereto, as of the
time when the Registration Statement became effective
and at all times subsequent thereto up to the
delivery of such certificate, included any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading;
(iii) Subsequent to the respective dates as of which
information is given in the Registration Statement
and the Prospectus, and except as set forth or
contemplated in the Prospectus, neither the Company
nor any of its subsidiaries has incurred any material
liabilities or obligations, direct or contingent, nor
entered into any material transactions not in the
ordinary course of business and there has not been
any material adverse change in the condition
(financial or otherwise), properties, business,
management, prospects, net worth or results of
operations of the Company and its subsidiaries
considered as a whole, or any change in the capital
stock, short-term or long-term debt of the Company
and its subsidiaries considered as a whole;
(iv) The representations and warranties of the Company in
this Agreement are true and correct at and as of each
of the Closing Dates, and the Company has complied
with all the agreements and performed or satisfied
all the conditions on its part to be performed or
satisfied at or prior to the Closing Dates; and
(v) Since the respective dates as of which information is
given in the Registration Statement and the
Prospectus, and except as disclosed in or
contemplated by the Prospectus, (A) there has not
been any material adverse change or a development
involving a material adverse change in the condition
(financial or otherwise), properties, business,
management, prospects, net worth or results of
operations of the Company and its subsidiaries
considered as a whole; (B) the business and
operations conducted by the Company and its
subsidiaries have not sustained a loss by strike,
fire, flood, accident or other calamity (whether or
not insured) of such a character as to interfere
materially with the conduct of the business and
operations of the Company and its subsidiaries
considered as a whole; (C) no legal or governmental
action, suit or proceeding is pending or threatened
against the Company which is material to the Company,
whether or not arising from transactions in the
ordinary course of business, or which may materially
and adversely affect the transactions contemplated by
this Agreement; (D) since such dates and except as so
disclosed, the Company has not incurred any material
liability or obligation, direct, contingent or
indirect, made any change in its capital stock
(except pursuant to its stock
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plans), made any material change in its short-term or
funded debt or repurchased or otherwise acquired any
of the Company's capital stock; and (E) the Company
has not declared or paid any dividend, or made any
other distribution, upon its outstanding capital
stock payable to stockholders of record on a date
prior to the Closing Date.
(j) The Representatives shall have received a certificate or
certificates, dated each of the Closing Dates, of the Selling
Shareholder to the effect that as of each of the Closing Dates
its representations and warranties in this Agreement are true
and correct as if made on and as of each of the Closing Dates,
and that it has performed all its obligations and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Dates.
(k) The Company and the Selling Shareholder shall have furnished
to the Representatives such additional certificates as the
Representatives may have reasonably requested as to the
accuracy, at and as of each of the Closing Dates, of the
representations and warranties made herein by them and as to
compliance at and as of each of the Closing Dates by them with
their covenants and agreements herein contained and other
provisions hereof to be satisfied at or prior to each of the
Closing Dates, and as to satisfaction of the other conditions
to the obligations of the Underwriters hereunder.
(l) Xxxx Xxxxxxxx Xxxxxxx shall have received the written
agreements, substantially in the form of Exhibit II hereto, of
the officers, directors and holders of Common Stock listed in
Schedule C that each will not offer, sell, assign, transfer,
encumber, contract to sell, grant an option to purchase or
otherwise dispose of, other than by operation of law, gifts,
pledges or dispositions by estate representatives, any shares
of Common Stock (including, without limitation, Common Stock
which may be deemed to be beneficially owned by such officer,
director or holder in accordance with the Rules and
Regulations) during the one hundred eighty (180) days
following the date of the final Prospectus, except for the
Stock being sold hereunder by the Selling Shareholder.
The Nasdaq National Market shall have approved the stock for listing,
subject only to official notice of issuance.
All opinions, certificates, letters and other documents will be in
compliance with the provisions hereunder only if they are satisfactory
in form and substance to the Representatives. The Company will furnish
to the Representatives conformed copies of such opinions, certificates,
letters and other documents as the Representatives shall reasonably
request. If any of the conditions hereinabove provided for in this
Section shall not have been satisfied when and as required by this
Agreement, this Agreement may be terminated by the Representatives by
notifying the Company of such termination in writing or by telegram at
or prior to each of the Closing Dates, but Xxxx Xxxxxxxx Xxxxxxx, on
behalf of the Representatives, shall be entitled to waive any of such
conditions.
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9. EFFECTIVE DATE. This Agreement shall become effective immediately as to
Sections 5, 6, 7, 9, 10, 11, 13, 14, 15, 16 and 17 and, as to all other
provisions, at 11:00 a.m. New York City time on the first full business
day following the effectiveness of the Registration Statement or at
such earlier time after the Registration Statement becomes effective as
the Representatives may determine on and by notice to the Company or by
release of any of the Stock for sale to the public. For the purposes of
this Section 9, the Stock shall be deemed to have been so released upon
the release for publication of any newspaper advertisement relating to
the Stock or upon the release by you of telegrams (i) advising
Underwriters that the shares of Stock are released for public offering
or (ii) offering the Stock for sale to securities dealers, whichever
may occur first.
10. TERMINATION. This Agreement (except for the provisions of Section 5)
may be terminated by the Company at any time before it becomes
effective in accordance with Section 9 by notice to the Representatives
and may be terminated by the Representatives at any time before it
becomes effective in accordance with Section 9 by notice to the
Company. In the event of any termination of this Agreement under this
or any other provision of this Agreement, there shall be no liability
of any party to this Agreement to any other party, other than as
provided in Sections 5, 6 and 11 and other than as provided in Section
12 as to the liability of defaulting Underwriters.
This Agreement may be terminated after it becomes effective by the
Representatives by notice to the Company (i) if at or prior to the
First Closing Date trading in securities on any of the New York Stock
Exchange, American Stock Exchange, Nasdaq National Market System,
Chicago Board of Options Exchange, Chicago Mercantile Exchange or the
Chicago Board of Trade shall have been suspended or minimum or maximum
prices shall have been established on any such exchange or market, or a
banking moratorium shall have been declared by New York or United
States authorities; (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market;
(iii) if at or prior to the First Closing Date there shall have been
(A) an outbreak or escalation of hostilities between the United States
and any foreign power or of any other insurrection or armed conflict
involving the United States or (B) any change in financial markets or
any calamity or crisis which, in the judgment of the Representatives,
makes it impractical or inadvisable to offer or sell the Stock on the
terms contemplated by the Prospectus; (iv) if there shall have been any
development or prospective development involving particularly the
business or properties or securities of the Company or any of its
subsidiaries or the transactions contemplated by this Agreement, which,
in the judgment of the Representatives, makes it impracticable or
inadvisable to offer or deliver the Stock on the terms contemplated by
the Prospectus; (v) if there shall be any litigation or proceeding,
pending or threatened, which, in the judgment of the Representatives,
makes it impracticable or inadvisable to offer or deliver the on the
terms contemplated by the Prospectus; or (vi) if there shall have
occurred any of the events specified in the immediately preceding
clauses (i) - (v) together with any other such event that makes it, in
the judgment of the Representatives, impractical or inadvisable to
offer or deliver the Stock on the terms contemplated by the Prospectus.
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11. REIMBURSEMENT OF UNDERWRITERS. Notwithstanding any other provisions
hereof, if this Agreement shall not become effective by reason of any
election of the Company pursuant to the first paragraph of Section 10
or shall be terminated by the Representatives under Section 8 or
Section 10, the Company will bear and pay the expenses specified in
Section 5 hereof and, in addition to its obligations pursuant to
Section 6 hereof, the Company will reimburse the reasonable
out-of-pocket expenses of the several Underwriters (including
reasonable fees and disbursements of counsel for the Underwriters)
incurred in connection with this Agreement and the proposed purchase of
the Stock, and promptly upon demand the Company will pay such amounts
to you as Representatives.
12. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock
hereunder and the aggregate number of shares which such defaulting
Underwriter or Underwriters agreed but failed to purchase does not
exceed ten percent (10%) of the total number of shares underwritten,
the other Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the shares which
such defaulting Underwriter or Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or
defaults occur is more than ten percent (10%) of the total number of
shares underwritten and arrangements satisfactory to the
Representatives and the Company for the purchase of such shares by
other persons are not made within forty-eight (48) hours after such
default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a
defaulting Underwriter or Underwriters as provided in this Section 12,
(i) the Company and the Selling Shareholder shall have the right to
postpone the Closing Dates for a period of not more than five (5) full
business days in order that the Company and the Selling Shareholder may
effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees promptly to file any amendments to
the Registration Statement or supplements to the Prospectus which may
thereby be made necessary, and (ii) the respective numbers of shares to
be purchased by the remaining Underwriters or substituted Underwriters
shall be taken as the basis of their underwriting obligation for all
purposes of this Agreement. Nothing herein contained shall relieve any
defaulting Underwriter of its liability to the Company, the Selling
Shareholder or the other Underwriters for damages occasioned by its
default hereunder. Any termination of this Agreement pursuant to this
Section 12 shall be without liability on the part of any non-defaulting
Underwriter, the Selling Shareholder or the Company, except for
expenses to be paid or reimbursed pursuant to Section 5 and except for
the provisions of Section 6.
13. NOTICES. All communications hereunder shall be in writing and, if sent
to the Underwriters shall be mailed, delivered or telegraphed and
confirmed to you, as their Representatives c/o Xxxx Xxxxxxxx Xxxxxxx 00
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000 except that notices
given to an Underwriter pursuant to Section 6 hereof shall be sent to
such
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Underwriter at the address furnished by the Representatives or, if sent
to the Company, shall be mailed, delivered or telegraphed and confirmed
c/o [-----------------].
14. SUCCESSORS. This Agreement shall inure to the benefit of and be binding
upon the several Underwriters, the Company and the Selling Shareholder
and their respective successors and legal representatives. Nothing
expressed or mentioned in this Agreement is intended or shall be
construed to give any person other than the persons mentioned in the
preceding sentence any legal or equitable right, remedy or claim under
or in respect of this Agreement, or any provisions herein contained,
this Agreement and all conditions and provisions hereof being intended
to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations,
warranties, covenants, agreements and indemnities of the Company and
the Selling Shareholder contained in this Agreement shall also be for
the benefit of the person or persons, if any, who control any
Underwriter or Underwriters within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the indemnities
of the several Underwriters shall also be for the benefit of each
director of the Company, each of its officers who has signed the
Registration Statement and the person or persons, if any, who control
the Company or any Selling Shareholder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act.
15. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. AUTHORITY OF THE REPRESENTATIVES. In connection with this Agreement,
you will act for and on behalf of the several Underwriters, and any
action taken under this Agreement by Xxxx Xxxxxxxx Xxxxxxx, as
Representative, will be binding on all the Underwriters.
17. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is for
any reason determined to be invalid or unenforceable, there shall be
deemed to be made such minor changes (and only such minor changes) as
are necessary to make it valid and enforceable.
18. GENERAL. This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with
respect to the subject matter hereof.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in
this Agreement are for the convenience of the parties only and will not
affect the construction or interpretation of this Agreement. This
Agreement may be amended or modified, and the observance of any term of
this Agreement may be waived, only by a writing signed by the Company,
the Selling Shareholder and the Representatives.
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19. COUNTERPARTS. This Agreement may be signed in two (2) or more
counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between us.
Very truly yours,
AIRONET WIRELESS COMMUNICATIONS, INC.
By:____________________________
President
SELLING SHAREHOLDER
By:
By:______________________________
Accepted and delivered in
- as of
the date first above written.
XXXX XXXXXXXX XXXXXXX
PRUDENTIAL SECURITIES, INC.
CIBC WORLD MARKETS CORP.
Acting on their own behalf and as Representatives of several
Underwriters referred to in the foregoing Agreement.
By:
By: ______________________________
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SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
---- --------- ---------
Xxxx Xxxxxxxx
Xxxxxxx................................
Prudential Securities, Inc.............
CIBC World Markets Corp................
--------- --------
Total..............................
========= ========
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SCHEDULE B
Number of
Number of Firm Optional
Shares to Shares to
be Sold be Sold
------- -------
Aironet Wireless Communication, Inc........................... 4,000,000 600,000
Selling Shareholder........................................... 2,000,000 300,000
--------- -------
Total...................................................... 6,000,000 900,000
===== ========= ========
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SCHEDULE C
36
[Form of Opinion of Issuer's Counsel]
Exhibit I
[Date]
XXXX XXXXXXXX XXXXXXX
PRUDENTIAL SECURITIES, INC.
CIBC WORLD MARKETS CORP.
As Representatives of the several Underwriters
c/o Xxxx Xxxxxxxx Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Re: Aironet Wireless Communications, Inc.
6,000,000 Shares Of Common Stock
Dear Sirs:
We have acted as counsel for Aironet Wireless Communications, Inc., a
Delaware corporation (the "Company"), in connection with the sale by
the Company and Telxon Corporation (the "Selling Stockholder") and
purchase of 6,000,000 shares of Common Stock, par value $0.01 per
share, of the Company (the "Shares") by the several Underwriters listed
in Schedule A to the Underwriting Agreement, dated ____, among the
Company, Xxxx Xxxxxxxx Xxxxxxx, a division of Xxxx Xxxxxxx
Incorporated, Prudential Securities, Inc. and CIBC World Markets Corp.,
as Representatives of the several Underwriters named therein (the
"Underwriting Agreement"). This opinion is being furnished pursuant to
Section 8(f) of the Underwriting Agreement. All defined terms not
defined herein shall have the meanings ascribed to them in the
Underwriting Agreement.
We are of the opinion that:
1. The Company and each of its subsidiaries 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 respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary
to own or hold their respective properties and conduct the businesses
in which they are engaged;
2. The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock off the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and all of the Shares to be issued and sold by
the Company to the Underwriters pursuant to the Underwriting Agreement
have been duly and validly authorized and, when issued and delivered
against payment therefor as provided for in the Underwriting Agreement,
shall be duly and validly issued, fully paid and non-assessable; and
all of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued and are fully
paid, non-
37
assessable and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
3. There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any of
the Shares pursuant to the Company's Certificate of Incorporation or
By-Laws or any agreement or other instrument;
4. There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its Subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, could have a material adverse effect on the Company and
its subsidiaries; and, to the best of our knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or other third parties;
5. The Company and each of its subsidiaries own or possess all patents,
trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade
secrets and rights described in the Prospectus as being owned by them
or any of them or necessary for the conduct of their respective
businesses, and the Company is not aware of any claim to the contrary
or any challenge by any other person to the rights of the Company or
any of its subsidiaries with respect to the foregoing. The Company's
business as now conducted and as proposed to be conducted does not and
will not infringe or conflict with any patents, trademarks, service
marks, trade names, copyrights, trade secrets, licenses or other
intellectual property or franchise right of any person;
6. The Company and each of its subsidiaries have, and the Company and
each of its subsidiaries as of the Closing Dates will have, good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned or proposed to be owned
by them which is material to the business of the Company or any of its
subsidiaries, in each case free and clear of all liens, encumbrances
and defects; and any real property and buildings held under lease by
the Company and its subsidiaries or proposed to be held after giving
effect to the transactions described in the Prospectus are, or will be
as of the Closing Dates, held by them under valid, subsisting and
enforceable leases with such exceptions as would not have a material
adverse effect on the Company and its subsidiaries considered as a
whole;
7. The Company has full corporate power and authority to enter into the
Underwriting Agreement and to perform its obligations thereunder
(including to issue, sell and deliver the Shares), and the Underwriting
Agreement has been duly and validly authorized, executed and delivered
by the Company and is a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that rights to indemnification and contribution thereunder
may be limited by federal or state securities laws or the public policy
underlying such laws;
38
8. The execution, delivery and performance of the Underwriting
Agreement and the consummation of the transactions therein contemplated
will not 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, note agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which any of
them or any of their properties is or may be bound, the Certificate of
Incorporation, By-laws or other organizational documents of the Company
or any of its subsidiaries, or any law, order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or result
in the creation of a lien;
9. No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated by the Underwriting Agreement,
except such as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or under the Securities Act or
the securities or "Blue Sky" laws of any jurisdiction in connection
with the purchase and distribution of the Shares by the Underwriters;
10. The Company and each of its subsidiaries are in compliance with,
and conduct their businesses in conformity with, all applicable
federal, state, local and foreign laws, rules and regulations,
including, but not limited to, those of any governmental agency, court
or tribunal; to the best of our knowledge, no prospective change in any
of such federal, state, local or foreign laws, rules or regulations has
been adopted which, when made effective, would have a material adverse
effect on the operations of the Company and its subsidiaries. The
Company and its subsidiaries are in compliance with all applicable
federal, state, local and foreign laws and regulations relating to the
protection of human health or the environment or imposing liability or
requiring standards of conduct concerning any Hazardous Materials;
11. The Registration Statement was declared effective under the
Securities Act as of __________, 1999, the Prospectus was filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations on
__________, 1999 and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose is pending or, to the best of our knowledge, threatened by the
Commission;
12. The Registration Statement and the Prospectus and any amendments or
supplements thereto comply as to form in all respects with the
requirements of the Securities Act and the Rules and Regulations;
13. To the best of our knowledge, there are no contracts or other
documents which are required by the Securities Act or by the Rules and
Regulations to be described in the Prospectus or filed as exhibits to
the Registration Statement which have not been described in the
Prospectus or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations;
39
14. Other than as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right (other than rights which have been
waived or satisfied) 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 this Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Securities Act;
l5. The descriptions in the Registration Statement and Prospectus of
statutes, rules, regulations, legal or governmental proceedings,
contracts and other documents are accurate and such descriptions fairly
present the information required to be disclosed; and to the best of
our knowledge, there are no legal or governmental proceedings,
statutes, ruler or regulations, or any contracts or documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required;
16. The statements under the captions "Risk Factors"; and
"Business-Government Regulation", to the extent they reflect matters of
federal law arising under the laws of the United States or legal
conclusions relating to such law, accurately summarize and fairly
present the legal and regulatory matters described therein :
17. The Company has complied with all provisions of Section 517.075 of
the Florida Statutes (Chapter 92 - l98; Laws of Florida); and
18. The Company and each of its subsidiaries are not, nor will they be
immediately after receiving the proceeds from the sale of the Shares,
an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended.
The foregoing opinion is limited to matters governed by the Federal
laws of the United States of America, the general corporate law of the
State of Delaware and the laws of the State of Ohio.
We have acted as counsel to the Company on a regular basis, have acted
as counsel to the Company in connection with previous financing
transactions and have acted as counsel to the Company in connection
with the preparation and filing of the Registration Statement and the
Prospectus, and based on the foregoing, no facts have come to our
attention which lead us to believe that the Registration Statement or
any amendment thereto, 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, or that the Prospectus contains any
untrue statement of a material fact or omits to state a material fact
Required to be stated therein or necessary in order to
40
make the statements therein, in light of the circumstances under which
they were made, not misleading.
41
SCHEDULE A
[Underwriters]
42
[Form of Lock Up]
Exhibit II
[Date]
XXXX XXXXXXXX XXXXXXX
PRUDENTIAL SECURITIES, INC.
CIBC WORLD MARKETS CORP. As Representatives of the several
Underwriters
c/o Xxxx Xxxxxxxx Xxxxxxx
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Re: AIRONET WIRELESS COMMUNICATIONS, INC.
6,000,000 SHARES OF COMMON STOCK
Ladies and Gentlemen:
The undersigned understands that Xxxx Xxxxxxxx Xxxxxxx, a
division of Xxxx Xxxxxxxx Xxxxxxx ("Xxxx Xxxxxxxx Xxxxxxx")
Prudential Securities, Inc. and CIBC World Markets Corp., as
Representatives (the "Representatives") of the several
underwriters (the "Underwriters"), proposes to enter into an
Underwriting Agreement (the "Underwriting Agreement") with
Aironet Wireless Communications, Inc. (the "Company") and
possibly with certain selling stockholders, providing for the
initial public offering by the Underwriters, including the
Representatives, of common stock (the "Common Stock") of the
Company (the "Initial Public Offering").
In consideration of the Underwriters' agreement to purchase
and undertake the Initial Public Offering of the Company's
Common Stock and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the
undersigned agrees that without the prior written consent of
Xxxx Xxxxxxxx Xxxxxxx, the undersigned will not, directly or
indirectly, offer, sell, pledge, contract to sell, grant any
option to purchase or otherwise dispose of any shares of
Common Stock beneficially owned or otherwise held by the
undersigned (including without limitation shares of Common
Stock which may be deemed to be beneficially owned by the
undersigned on the date hereof in accordance with the rules
and regulations of the Securities and Exchange Commission and
shares of Common Stock which may be issued upon exercise of a
stock option or warrant) or any securities convertible into,
derivative of or exercisable or exchangeable for such Common
Stock (collectively, the "Shares") for a period commencing on
the date hereof and ending 180 days after the date of the
final Prospectus circulated in connection with the Initial
Public Offering.
43
The undersigned agrees that the Company may, and hereby
instructs the Company to, cause the transfer agent for the
Company to note stop transfer instructions, with respect to
any Shares for which the undersigned is the record holder, on
the transfer books and records of the Company.
The undersigned understands that the Company, the Underwriters
and the Representatives will proceed with the Initial Public
Offering in reliance on this Lock-up Agreement.
Notwithstanding the second paragraph of this Lock-up
Agreement, the undersigned may offer or otherwise dispose of,
directly or indirectly, any Shares now owned or hereafter
acquired by the undersigned (i) as a bona fide gift or gifts,
provided the donees thereof agree in writing to be bound by
the terms of this Agreement, (ii) as a distribution to
partners, members or shareholders of the undersigned, provided
that the recipients thereof agree in writing to be bound by
the terms of this Agreement, (iii) pursuant to a qualified
domestic relations court order, provided that the recipients
thereof agree in writing to be bound by the terms of this
Agreement, (iv) if the undersigned is an individual, as a
transfer during the undersigned's lifetime or on death, by
will or intestacy, to the undersigned's immediate family or a
trust or family limited partnership, the beneficiaries or
partners of which are exclusively the undersigned, a member of
the undersigned's immediate family, entities of which the
undersigned and members of the undersigned's immediate family
are the sole beneficial owners or a combination of the
foregoing, provided that the transferees thereof agree in
writing to be bound by the terms of this Agreement or (v) upon
exercise, exchange or conversion of securities convertible
into or exercisable or exchangeable for Common Stock, provided
that the shares of Common Stock issued upon any such exercise,
exchange or conversion remain subject to the terms of this
Agreement, without prior written consent of Xxxx Xxxxxxxx
Xxxxxxx.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into this
Lock-up Agreement. All authority herein conferred or agreed to
be conferred shall survive the death or incapacity of the
undersigned and any obligations of the undersigned shall be
binding upon the heirs, personal representatives, successors
and assigns of the undersigned. Very truly yours,
-------------------------
By: ______________________________
Name: ____________________________
Title: ___________________________
44
Number of Shares (prior to any stock split to be effected in
connection with the Initial Public Offering) owned or Certificate Number:
subject to -------------------
warrants, options or convertible securities:
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