EXHIBIT 1.1
EBG DRAFT
JUNE 5, 2000
▇▇▇▇▇▇▇▇.▇▇▇, INC.
COMMON STOCK
-----------------------------
UNDERWRITING AGREEMENT
__________, 2000
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO., INC.
FAC/EQUITIES, A DIVISION OF FIRST ALBANY CORPORATION
As representatives of the several
Underwriters named in Schedule I hereto
c/o The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Upon and subject to the terms and conditions set forth below, (i)
▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to the Underwriters named in Schedule I (the "Underwriters") an
aggregate of 4,000,000 shares of common stock, $.01 par value ("Common Stock"),
of the Company (the "Firm Shares") and (ii) the shareholders of the Company
named in Schedule II hereto (the "Selling Shareholders") propose to sell to the
Underwriters an aggregate of 600,000 shares of Common Stock in the respective
amounts set forth opposite their names in Schedule II hereto (the "Optional
Shares") (the Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are collectively called the "Shares").
1. (a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-36122)
with respect to the Shares, including a prospectus, has been filed by the
Company with, and has been declared effective by, the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"). After the execution of this Agreement, the Company
will file with the Commission, within the applicable period specified in
Rule 424(b) under the Act, a prospectus in the form most recently included
in an amendment to such registration statement, with such changes or
insertions as are required by Rule 430A or permitted by Rule 424(b) under
the Act and as have been provided to and approved by the Representatives.
As used in this Agreement, the term "Registration Statement" means such
registration statement, as amended at the time when it was declared
effective, including all financial statement schedules and exhibits thereto
and including any information omitted therefrom pursuant to Rule 430A under
the Act and included in the Prospectus (as hereinafter defined); the term
"Preliminary Prospectus" means each prospectus subject to completion
included in such registration statement or any amendment or post-effective
amendment thereto (including the prospectus subject to completion, if any,
included in the Registration Statement at the time it was or is declared
effective); and the term "Prospectus" means the prospectus first filed with
the Commission pursuant to Rule 424(b) under the Act or, if no prospectus
is required to be so filed, such term means the prospectus included in the
Registration Statement. If the Company has filed or is required pursuant to
the terms hereof to file a Registration Statement pursuant to Rule 462(b)
under the Act registering additional shares of Common Stock (a "Rule 462(b)
Registration Statement"), such Rule 462(b) Registration Statement will
become effective no later than 10:00 p.m., Atlanta, Georgia time, on the
date of this Agreement. Unless otherwise specified, any reference herein to
the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement.
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the Company's knowledge, threatened or contemplated by
the Commission or the securities authority of any state or other
jurisdiction. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the Company's
knowledge, threatened or contemplated by the Commission or the securities
authority of any state or other jurisdiction.
(iii) When any Preliminary Prospectus was filed with the Commission it
(A) complied in all material respects with the requirements of the Act and
the rules and regulations of the Commission thereunder and (B) did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances
under which they were made, not misleading. When the Registration Statement
(other than any Rule 462(b) Registration Statement to be filed by the
Company after the effectiveness of this Agreement) or any amendment
thereto, if applicable, was or is declared effective, and at each Time of
Delivery (as hereinafter defined), it (A) complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (B) did not or will not
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading. When
the Prospectus or any amendment or supplement thereto, if applicable, is
filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or
such amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such amendment
or supplement to the Prospectus was or is declared effective) and at each
Time of Delivery, the Prospectus, as amended or supplemented at any such
time, (A) complied or will comply in all material respects with the
requirements of the Act and the rules and regulations of the Commission
thereunder and (B) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such Rule
462(b) Registration Statement or any amendment thereto, if applicable, when
it becomes effective and at each Time of Delivery, (A) will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (B) will not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. The
representations and warranties made in the foregoing provisions of this
paragraph (iii) do not apply to statements or omissions made in any
Preliminary Prospectus, the Registration Statement or any amendment
thereto, the Prospectus or any amendment or supplement thereto or any Rule
462(b) Registration Statement or any amendment thereto in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through you specifically for use therein. The statistical and
market-related data included in the Prospectus are based on or derived from
independent sources which the Company believes to be reliable and accurate
in all material respects or represent the Company's good faith estimates
that are made on the basis of data derived from such sources, in each case
as set forth in the Prospectus.
(iv) There are no (A) contracts, instruments or other documents or
agreements that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
and are not so described or filed as required, (B) laws, orders, judgments,
decrees, rules or
regulations that are required to be described in the Registration Statement
or the Prospectus and are not so described as required, (C) pending or, to
the knowledge of the Company, threatened legal or governmental proceedings
that are required to be described in the Registration Statement or the
Prospectus and are not so described as required, or (D) relationships,
direct or indirect, between or among the Company, on the one hand, and the
directors, officers or shareholders of the Company on the other hand, that
are required to be described in the Registration Statement or the
Prospectus and are not so described as required; and all descriptions
thereof in the Registration Statement (including the statements under Items
14 and 15 of Part II of the Registration Statement) and the Prospectus are
fair summaries thereof and fairly present, in all material respects, the
information required to be disclosed with respect thereto under the Act.
(v) The Company has been duly organized, is validly existing, and in
good standing under the laws of its jurisdiction of organization and has
full power and authority (corporate and otherwise) to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus. The Company has full corporate
power and authority to enter into this Agreement and to perform its
obligations hereunder. The Company is duly qualified to transact business
as a foreign corporation and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, except where the failure to
so qualify would not have a material adverse effect on the financial
position, results of operations or business of the Company.
(vi) The Company's authorized, issued and outstanding capital stock is
as disclosed in the Prospectus. All of the issued and outstanding shares of
capital stock of the Company (including, without limitation, the Shares to
be sold by the Selling Shareholders) have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description of
the Common Stock contained in the Registration Statement and the
Prospectus. None of the issued shares of capital stock of the Company has
been issued or is owned or held in violation of any preemptive rights of
shareholders, and no person or entity (including any holder of outstanding
shares of capital stock of the Company) has any preemptive or other rights
to subscribe for any of the Shares.
(vii) The Company has no subsidiaries and does not own, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any ownership interest in any partnership, joint venture or
other association.
(viii) Except as disclosed in the Prospectus, there are no
outstanding (A) securities or obligations of the Company convertible into
or exchangeable for any capital stock of the Company, (B) warrants, rights
or options to subscribe for or purchase from the Company any such capital
stock or any such convertible or exchangeable securities or obligations, or
(C) obligations of the Company to issue any shares of capital stock, any
such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(ix) Since the date of the most recent audited financial statements
included in the Registration Statement and the Prospectus, the Company has
not sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as disclosed in or contemplated by the
Prospectus.
(x) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus and prior to or at each Time of
Delivery, or as disclosed in the Registration Statement or the Prospectus,
(A) the Company has not incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, in each case not in the
ordinary course of business, that are material to the Company, (B) the
Company has not purchased any of its outstanding capital stock or declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock, (C) there has not been any change in the capital stock
(other than changes in connection with the exercise of options to purchase
shares of the Company's Common Stock granted pursuant to the Company's
stock option plan from the shares reserved therefor as described in the
Registration Statement), or material change in the long-term debt or
short-term debt of the Company, and (D) there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the financial position, results of operations or
business of the Company.
(xi) The Shares to be issued and sold by the Company have been duly
authorized for issuance and sale pursuant to this Agreement and, when
issued and delivered by the Company against payment therefor as provided
herein, will be validly issued, fully paid and nonassessable and will
conform to the description of the Common Stock contained in the Prospectus
and the issuance thereof will not be subject to any preemptive or similar
rights; the certificates evidencing the Shares will comply with all
applicable requirements of Delaware law; and the Shares have been approved
for listing on the Nasdaq National Market, subject to notice of issuance.
(xii) Except as disclosed in the Registration Statement and the
Prospectus, (1) there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company or to require the Company to
include any securities in the securities registered pursuant to the
Registration Statement (or any such right has been effectively waived) or
any securities being registered pursuant to any other registration
statement filed by the Company under the Act and (2) neither the filing of
the Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights for or relating to
the registration of any securities of the Company.
(xiii) All offers and sales of the Company's capital stock and its
predecessors prior to the date hereof were at all relevant times exempt
from the registration requirements of the Act by reason of Sections 3(b) or
4(2) thereof and were the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky
laws.
(xiv) The Company is not, nor with the giving of notice or passage of
time or both would be, (A) in violation of its Certificate of
Incorporation, Bylaws, or other governing instruments, as appropriate, or
(B) in default under any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company is a
party or by which the Company or any of its properties or assets are
subject, except, in the case of clause (B), such defaults that would not
have a material adverse effect on the Company.
(xv) The execution of this Agreement, the issue and sale of the Shares
to be issued and sold by the Company under this Agreement, the sale of the
Shares to be sold by the Selling Shareholders under this Agreement the
performance of this Agreement by the Company and the Selling Shareholders
and the consummation of the other transactions herein contemplated will not
(A) conflict with, or (with or without the giving of notice or the passage
of time or both) result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien upon any property or assets of the Company pursuant
to, any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company is a party or to which any its
properties or assets are subject, (B) conflict with or violate any
provision of the certificate of Incorporation or Bylaws of the Company or
(C) conflict with or violate any provision of any constitution, statute,
rule or regulation or any order, judgment or decree of any court or
governmental agency or body having jurisdiction over the Company or any of
its properties or assets, except, in the case of clauses (A) and (C), such
breach, violation, default or lien that would not have a material adverse
effect on the Company.
(xvi) The Company has all such licenses, certificates, authorizations,
consents, exemptions, qualifications, franchises, permits and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals as are necessary to own,
lease, license and operate its assets and properties and to conduct its
business as described in the Registration Statement and Prospectus, except
any such Authorization, filing or notice, the failure of which to hold or
make would not have a material adverse effect on the Company. Each such
Authorization is valid and in full force and effect, and the Company is in
compliance, in all material respects, with all the terms and conditions
thereof and with the applicable rules and regulations of the authorities
and governing bodies having jurisdiction with respect thereto, except any
such noncompliance that would not have a material adverse effect on the
Company; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows
or, after notice or lapse of time or both, would allow revocation,
suspension or termination of any such Authorization or results or, after
notice or lapse of time or both, would result in any other impairment of
the rights under any such Authorization, except such revocation,
suspension, termination or impairment that would not have a material
adverse effect on the Company; and no such Authorization contains any
restriction that is materially burdensome to the Company.
(xvii) The Company does not own any real property, and has good title
to all personal property owned by it, in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, mortgages and
defects, except such as are disclosed in the Prospectus or such as do not
materially and adversely affect the value of such property and do not
interfere with the use of such property by the Company; and any real
property and buildings held under lease by the Company are held under
valid, subsisting and enforceable leases, with such exceptions as are
disclosed in the Prospectus or are not material and do not interfere with
the use made of such property and buildings by the Company, and except as
such enforcement may be limited by bankruptcy and laws relating to rights
and remedies of creditors generally and by the availability of equitable
remedies.
(xviii) No consent, approval, authorization, order or declaration of
or from, or registration, qualification or filing with, any court or
governmental agency or body is required on the part of the Company for the
sale of the Shares
or the consummation of the transactions contemplated by this Agreement,
except the registration of the Shares under the Act and such as may be
required under state securities or blue sky laws or the by-laws and rules
of the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the offer, sale and distribution of the Shares by the
Underwriters.
(xix) There is no litigation, arbitration, claim, proceeding (formal
or informal) or investigation pending or, to the Company's knowledge,
threatened in which the Company is a party or of which any of its
properties or assets are the subject which, if determined adversely to the
Company, would individually or in the aggregate have a material adverse
effect on the financial position, results of operations or business of the
Company. The Company is not in violation of, or in default with respect to,
any constitution, statute, rule or regulation, except as described in the
Prospectus or such violations as do not and will not individually or in the
aggregate have a material adverse effect on the financial position, results
of operations, business or prospects of the Company, and the Company is not
bound by any order, judgment or decree except as described in the
Prospectus or such as do not and will not individually or in the aggregate
have a material adverse effect on the financial position, results of
operations, business or prospects of the Company.
(xx) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements of the Company are and were, during the periods covered by their
reports included in the Registration Statement and the Prospectus,
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(xxi) The financial statements together with related notes and
schedule of the Company included in the Registration Statement or the
Prospectus were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved and fairly
present the financial position and results of operations of the Company at
the dates and for the periods presented; the consolidated financial
statements together with related notes and schedule of the Company included
in the Preliminary Prospectus were prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved and fairly present, in all material respects, the financial
position and results of operations of the Company, at the dates and for the
periods presented; all adjustments necessary for a fair presentation of
results for such periods have been made; the selected financial information
included
under the captions "Summary -- Summary Financial Information" and "Selected
Financial Information" in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) present fairly the information
shown therein and have been compiled on a basis consistent with the
financial statements presented therein; the supporting schedules, if any,
included in the Registration Statement present fairly in accordance with
generally accepted accounting principles the information required to be
stated therein; and the other financial and statistical information and
data respecting the Company set forth in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company. No other
financial statements, supporting schedules or other financial information
(whether pro forma financial statements or otherwise) are required to be
included in the Registration Statement or the Prospectus. As of the date of
the Prospectus, the Company is not engaged in substantive discussions with
any third party with respect to, or obligated to complete, any acquisitions
for which disclosure of pro forma financial information in the Registration
Statement and the Prospectus is required by the Act.
(xxii) This Agreement has been duly authorized, executed and delivered
by the Company.
(xxiii) Neither the Company nor any of its officers, directors or
affiliates has taken, directly or indirectly, any action designed to cause
or result in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares.
(xxiv) The Company has obtained and delivered to the Underwriters for
the benefit of the Company and the Underwriters from each of its directors,
officers, Selling Shareholders and each shareholder listed on Annex I
hereto (each, an "Executing Shareholder") a written agreement (each, a
"Lock-Up Agreement") that for a period of 180 days from the date of the
Prospectus such director, officer or shareholder will not, without your
prior written consent, (A)
directly or indirectly make, agree to or cause any offer, sale (including
short sale), loan, pledge or other disposition of, or grant any options,
rights or warrants to purchase with respect to, or otherwise transfer or
reduce any risk of ownership of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exchangeable or
exercisable for Common Stock; (B) enter into any swap or other arrangement
that transfers all or a portion of the economic consequences associated
with the ownership of the Common Stock; (C) make any demand for, or
exercise any right with respect to, the registration of shares of Common
Stock or any securities convertible into or exchangeable or exercisable for
Common Stock; provided, however that during such period, each Executing
Shareholder may transfer shares of Common Stock pursuant to a bona fide
gift; PROVIDED that any recipient of Common Stock pursuant to any such gift
shall, prior to such recipient's receipt thereof, agree in writing to be
bound by all of the restrictions contained in such Executing Shareholder's
Lock-Up Agreement until 180 days after the date of the Prospectus.
(xxv) The Company has not violated any federal, state, local or
foreign law, order, judgment, decree, rule or regulation (including,
without limitation, any such law, order, judgment, decree, rule or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), the Employee Retirement Income
Security Act of 1974, as amended, and the rules and regulations thereunder
("ERISA"), or the Foreign Corrupt Practices Act and the rules and
regulations thereunder), except for such violations which would not,
individually or in the aggregate, have material adverse effect on the
financial position, results or operations or business of the Company. The
Company has no material liability (contingent or otherwise) in connection
with any Environmental Law or the release into the environment of any
substance regulated by any Environmental Law.
(xxvi) The Company owns or has the right to use all patents, patent
applications, trademarks, trademark applications, tradenames, service
marks, copyrights, franchises, trade secrets, proprietary or other
confidential information and intangible properties and assets
(collectively, "Intangibles") necessary to operate its business as
presently conducted or as the Prospectus indicates the
Company proposes to conduct; to the Company's knowledge, the Company has
not infringed and is not infringing, and the Company has not received
notice of infringement with respect to, asserted Intangibles of others;
and, to the knowledge of the Company, there is no infringement by others of
Intangibles of the Company.
(xxvii) The Company is insured against such losses and risks and in
such amounts as are prudent and customary in the businesses in which it is
engaged; and the Company has no 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 as may be necessary to continue its business
at a comparable cost, except as disclosed in the Prospectus.
(xxviii) The Company makes and keeps accurate books and records
reflecting its assets and maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions
are executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of the
Company's consolidated financial statements in accordance with generally
accepted accounting principles and to maintain accountability for the
assets of the Company, (C) access to the assets of the Company is permitted
only in accordance with management's authorization, (D) the recorded
accountability for assets of the Company is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences; and (E) such controls would prevent or detect errors or
irregularities in amounts that would be material to the Company.
(xxix) The Company has filed all foreign, federal, state and local
income, franchise tax and other tax returns that are required to be filed
by it and has paid all taxes (including, without limitation, withholding
taxes) shown as due on such returns as well as all other taxes, assessments
and governmental charges (including, without limitation, all penalties and
interest) that are due and payable; and no deficiency with respect to any
such return has been assessed or, to the knowledge of the Company,
proposed, in each case except as would not have a material adverse effect
on the Company.
(xxx) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment company"
or a company "controlled" by an "investment company" within the meaning of
the Investment Company Act
of 1940, as amended (the "Investment Company Act").
(xxxi) The Company has previously disclosed and delivered or made
available to the Representatives copies of all pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock
ownership, severance pay, vacation, bonus or other incentive plans, all
other written employee programs, arrangements or agreements, all medical,
vision, dental or other health plans, all life insurance plans and all
other employee benefit plans or fringe benefit plans, including, without
limitation, "employee benefit plans" as that term is defined in Section
3(3) of ERISA, adopted, maintained, sponsored in whole or in part, or
contributed to by the Company, its predecessors or any subsidiary of the
Company or its predecessors for the benefit of employees, retirees,
dependents, spouses, directors, independent contractors or other
beneficiaries and under which employees, retirees, dependents, spouses,
directors, independent contractors or other beneficiaries are eligible to
participate (collectively, the "Company Benefit Plans").
The Company and each predecessor of the Company or a subsidiary of the
Company that adopted or contributed to a Company Benefit Plan have
maintained all Company Benefit Plans (including, without limitation, filing
all reports and returns required to be filed with respect thereto) in
accordance with their terms and in compliance with the applicable terms of
ERISA and the Internal Revenue Code of 1986, as amended, and the rules and
regulations thereunder (the "Code"), except where the failure to do so
would not, individually or in the aggregate, have a material adverse effect
on the financial position, results of operations or business of the
Company. Each Company Benefit Plan which is intended to be qualified under
Section 401(a) of the Code has either received a favorable determination
letter from the Internal Revenue Service, timely requested such a letter or
relies upon an opinion letter from the Internal Revenue Service with
respect to the qualified status of any non-individually designed plan and
has at all times been maintained in accordance with Section 401 of the
Code, except where any failure to receive or seek such a favorable
determination letter or so maintain such Company Benefit Plan would not,
individually or in the aggregate, have a material adverse effect on the
financial position, results of operations or business of the Company. The
Company has not engaged in a transaction with respect to any Company
Benefit Plan that would subject the Company to a tax or penalty imposed by
either Section 4975 of the Code or Section 502(i) of ERISA, except for any
such transaction, tax or penalty which would not, individually or in the
aggregate, have a material adverse effect on the financial position,
results of operations or business of the Company.
Except as required pursuant to Code Section 4980B and ERISA Section
609 et. seq., the Company is not obligated to provide post-retirement
medical benefits or any other unfunded post-retirement welfare benefits,
except for the provisions of any such benefits which would not,
individually or in the aggregate, have a material adverse effect on the
financial position, results of operations or business of the Company.
Neither the Company nor any member of a group of trades or businesses under
common control (as defined in ERISA Sections 4001(a)(14) and 4001(b)(1))
with the Company have at any time within the last six years sponsored,
contributed to or been obligated under Title I or IV of ERISA to contribute
to a "defined benefit plan" (as defined in ERISA Section 3(35)). Within the
last six years, neither the Company nor any member of a group of trades or
businesses under common control (as defined in ERISA Sections 4001(a)(14)
and 4001(b)(1)) with the Company have had an "obligation to contribute" (as
defined in ERISA Section 4212) to a "multiemployer plan" (as defined in
ERISA Sections 4001(a)(3) and 3(37)(A)).
(xxxii) The Company has no reason to believe, and does not believe,
that the Year 2000 Problem will have a material adverse effect on the
financial position, results of operations or business of the Company. The
"Year 2000 Problem" as used herein means any risk that the computer
hardware or software used in the receipt, transmission, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of dates
or time periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to
January 1, 2000.
(xxxii) To the Company's knowledge, no labor disturbance by the
employees of the Company exists or is imminent. No collective bargaining
agreement exists with any of the Company's employees and, to the Company's
knowledge, no such agreement is imminent.
(xxxiv) The Company has not at any time during the last five (5) years
(A) made any unlawful contribution to any candidate for foreign office or
failed to disclose fully any contribution in violation of law, or (B) made
any payment to any federal or state governmental officer or official, or
other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof.
(xxxv) To the Company's knowledge, no officer of the Company, director
of the Company or securityholder of 5% or more of any class of the
Company's securities has an "association" or "affiliation" with any member
of the NASD, within the meaning of Rule 2710 of the Conduct Rules of the
NASD. The
Company does not have an "association" or "affiliation" with any member of
the NASD, within the meaning of Rule 2710 of the Conduct Rules of the NASD.
Each certificate signed by any officer of the Company and delivered to
the Underwriters or counsel for the Underwriters at any Time of Delivery
Date shall be deemed to be a representation and warranty by the Company to
the Underwriters as to the matters covered thereby.
(b) REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS. Each
Selling Shareholder, severally, and not jointly, represents and warrants to, and
agrees with, each of the several Underwriters and the Company that:
(i) Such Selling Shareholder has full power and authority (corporate
and otherwise) to enter into this Agreement, the Power of Attorney and the
Custody Agreement (as hereinafter defined) and to sell, assign, transfer
and deliver to the Underwriters the Shares to be sold, if any, by such
Selling Shareholder hereunder; the execution and delivery of this
Agreement, the Power of Attorney and the Custody Agreement have been duly
authorized by all necessary action of such Selling Shareholder; such
Selling Shareholder has duly executed and delivered this Agreement, the
Power of Attorney and the Custody Agreement; and each of this Agreement,
the Power of Attorney and the Custody Agreement is a valid and binding
agreement of such Selling Shareholder, enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy and laws relating
to rights and remedies of creditors generally and by the availability of
equitable remedies.
(ii) No consent, approval, authorization, order or declaration of or
from, or registration, qualification or filing with, any court or
governmental agency or body is required for the sale of the Shares to be
sold by such Selling Shareholder or the consummation of the transactions
contemplated by this Agreement, the Power of Attorney or the Custody
Agreement, except the registration of such Shares under the Act and such as
may be required under state securities or blue sky laws or the by-laws and
rules of the NASD in connection with the offer, sale and distribution of
such Shares by the Underwriters.
(iii) The sale of the Shares to be sold by such Selling Shareholder
under this Agreement and the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated will not
(A) conflict with, or (with or without the giving of notice or the passage
of time or both) result in a breach of violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement,
lease or other agreement or instrument to which such Selling Shareholder or
any of its subsidiaries is a party or to which any of their respective
properties or assets is subject, (B) conflict with or violate any provision
of the Certificate of Incorporation or Bylaws or other governing
instruments of such Selling Shareholder or any of its subsidiaries or (C)
violate any constitution, statute, rule or regulation or any order,
judgment or decree of any court or governmental agency or body having
jurisdiction over such Selling Shareholder or any of such Selling
Shareholder's properties or assets, except, in the case of clauses (A) and
(C), such breach, violation, default or lien that would not have a material
adverse effect on the Selling Shareholder.
(iv) Such Selling Shareholder has, and immediately prior to the First
Time of Delivery (as defined in Section 4 hereof), such Selling Shareholder
will have, good and valid title to the Shares to be sold by such Selling
Shareholder hereunder, free and clear of all restrictions on transfer,
liens, security interests, pledges, charges, encumbrances, defects,
shareholders' agreements, voting trusts, equities or claims of any nature
whatsoever; and, upon delivery of such Shares against payment therefor as
provided herein, good and valid title to such Shares, free and clear of all
liens, security interests, pledges, charges, encumbrances, defects,
shareholders' agreements, voting trusts, equities or claims of any nature
whatsoever, will pass to the several Underwriters.
(v) Neither such Selling Shareholder nor any of its officers,
directors or affiliates has (A) taken, directly or indirectly, any action
designed to cause or result in, or that has constituted or might reasonably
be expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Shares or (B) since the filing of the Registration Statement (1) sold, bid
for, purchased or paid anyone any compensation for soliciting purchases of,
the Shares or (2) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(vi) Certificates in negotiable form representing all of the Shares to
be sold by such Selling Shareholder hereunder have been placed in custody
under a Custody Agreement, in the form heretofore furnished to and approved
by the Representatives, duly executed and delivered by such Selling
Shareholder to ChaseMellon Shareholder Services, L.L.C., as custodian (the
"Custodian"). Such Selling Shareholder has duly executed and delivered a
Power of Attorney, in the form heretofore furnished to and approved by the
Representatives, appointing the persons indicated in Schedule II hereto as
such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with
authority to execute and deliver this Agreement on behalf of such Selling
Shareholder, to
determine the purchase price to be paid by the Underwriters to the Selling
Shareholders as provided in Section 2 hereof, to authorize the delivery of
the Shares to be sold by such Selling Shareholder hereunder and otherwise
to act on behalf of such Selling Shareholder in connection with the
transactions contemplated by this Agreement and the Custody Agreement.
(vii) The information in the Registration Statement under the caption
"Principal Shareholders" which specifically relates to such Selling
Shareholder (other than the percentage of shares beneficially held by such
Selling Shareholder with respect to which such Selling Shareholder makes no
representation) does not, and will not on the date of the execution of the
Underwriting Agreement or on each Time of Delivery, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and if
there is any change in the information referred to in this paragraph, the
undersigned will immediately notify you of such change.
Each certificate signed by or on behalf of such Selling Shareholder
and delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by such Selling Shareholder to
the Underwriters as to the matters covered thereby.
In order to document the Underwriters' compliance with the reporting and
withholding provisions of the Code with respect to the transactions herein
contemplated, each of the Selling Shareholders agrees to deliver to the
Representatives prior to or at the First Time of Delivery (as hereinafter
defined) a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
Each of the Selling Shareholders specifically agrees that the Shares
represented by the certificates held in custody for such Selling Shareholder
under the Custody Agreement are subject to the interests of the Underwriters
hereunder, and that the arrangements made by such Selling Shareholder for such
custody, and the appointment by such Selling Shareholder of the
Attorneys-in-Fact by the Power of Attorney, are irrevocable. Each of the Selling
Shareholders specifically agrees that the obligations of the Selling
Shareholders hereunder shall not be terminated by operation of law, whether in
the case of a partnership or corporation, by the dissolution of such partnership
or corporation or by the occurrence of any other event.
2. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions herein
set forth, (a) the Company agrees to sell to each of the Underwriters, and each
of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of ______ per share, the Firm Shares and (b) in the event and
to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Selling Shareholders agree to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Selling Shareholders, at the purchase price per
share set forth in clause (a) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares that such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of the Optional Shares that all of
the Underwriters are entitled to purchase hereunder.
Subject to the terms and conditions herein set forth, the Selling
Shareholders hereby grant to the Underwriters the right to purchase at their
election in whole or in part from time to time up to 600,000 Optional Shares, at
the purchase price per share set forth in clause (a) in the paragraph above, for
the sole purpose of covering over-allotments in the sale of Firm Shares. Any
such election to purchase Optional Shares may be exercised by written notice
from you to the Company and the Selling Shareholders, given from time to time
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you, but in no
event earlier than the First Time of Delivery (as hereinafter defined) or,
unless you and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice (I.E. on a "T+3" basis in
accordance with the Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act")). In the event you elect to purchase all or a portion of the
Optional Shares, the Company agrees to furnish or cause to be furnished to you
the certificates, letters and opinions, and to satisfy all conditions, set forth
in Section 7 hereof at each Subsequent Time of Delivery (as hereinafter
defined). Any purchase of some, but not all, of the Optional Shares shall be
made from each of the Selling Shareholder on a pro rata basis, based upon the
maximum number of Optional Shares to be sold by each Selling Shareholder as set
forth on Schedule II.
3. OFFERING BY THE UNDERWRITERS. Upon the authorization by you of the
release of the Shares, the several Underwriters propose to offer the Shares for
sale upon the terms and conditions disclosed in the Prospectus.
4. DELIVERY OF SHARES; CLOSING. Certificates in definitive form for the
Shares to be purchased by each Underwriter hereunder, and in such denominations
and registered in such names as The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC may request
upon at least 48 hours' prior notice to the Company and the Attorneys-in-Fact,
shall be delivered by or on
behalf of the Company and the Selling Shareholders to you through the facilities
of the Depository Trust Company ("DTC") for the account of such Underwriter,
against payment by such Underwriter on its behalf of the purchase price therefor
by wire transfer of immediately available funds, payable to the order of the
Company and the Custodian, as their interests may appear. The closing of the
sale and purchase of the Shares shall be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Green, P.C., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, except that physical
delivery of such certificates shall be made at the office of DTC, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or its designated custodian. The time and date
of such delivery and payment shall be, with respect to the Firm Shares, at 9:00
a.m., Atlanta time, on _________, 2000 or at such other time and date as you and
the Company may agree upon in writing, and, with respect to the Optional Shares,
at 9:00 a.m., Atlanta time, on the date specified by you in the written notice
given by you of the Underwriters' election to purchase all or part of such
Optional Shares, or at such other time and date as you, the Company and the
Attorneys-in-Fact, on behalf of the Selling Shareholders, may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery," such time and date for delivery of any Optional
Shares, if not the First Time of Delivery, is herein called a "Subsequent Time
of Delivery," and each such time and date for delivery is herein called a "Time
of Delivery." The Company will make such certificates available for checking and
packaging at least 24 hours prior to each Time of Delivery at the office of DTC
or its designated custodian in New York, New York or at such other location in
New York, New York specified by you in writing at least 48 hours prior to such
Time of Delivery.
5. (a) COVENANTS OF THE COMPANY. The Company covenants and agrees with each
of the Underwriters:
(i) The Company will file the Prospectus with the Commission in the
manner and within the time period required by Rule 424(b). The Company will
advise you promptly of any such filing pursuant to Rule 424(b).
(ii) The Company will not file with the Commission the Prospectus, any
amendment or supplement to the Prospectus or any amendment to the
Registration Statement unless you have received a reasonable period of time
to review the Prospectus or any such proposed amendment or supplement and
consented to the filing thereof. Upon the request of the Representatives or
counsel for the Underwriters, the Company will promptly prepare and file
with the Commission, in accordance with the rules and regulations of the
Commission, any amendments to the Registration Statement or amendments or
supplements to the Prospectus that may be necessary, or in the good faith
and reasonable opinion of the Representatives, advisable in connection with
the distribution of the Shares
by the several Underwriters and will use its best efforts to cause any such
amendment to the Registration Statement to be declared effective as
promptly as possible. If required, the Company will file any amendment or
supplement to the Prospectus with the Commission in the manner and within
the time period required by Rule 424(b) under the Act. The Company will
advise the Representatives, promptly after receiving notice thereof, of the
time when any amendment to the Registration Statement, or when any Rule
462(b) Prospectus or any amendment thereto, has been filed or declared
effective or when the Prospectus or any amendment or supplement thereto has
been filed and will provide evidence to the Representatives of each such
filing or effectiveness.
(iii) The Company will advise you promptly after receiving notice or
obtaining knowledge of (A) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any part
thereof or any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, (B)
the suspension of the qualification of the Shares for offer or sale in any
jurisdiction or of the initiation or threatening of any proceeding for any
such purpose, or (C) any request made by the Commission or any securities
authority of any other jurisdiction for amending the Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance
of any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(iv) If the delivery of a prospectus relating to the Shares is
required under the Act at any time prior to the expiration of nine months
after the date of the Prospectus and if at such time any events have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if for any reason it is necessary during such same period to
amend or supplement the Prospectus to comply with the Act or the rules and
regulations thereunder, the Company will promptly notify you and upon your
request (but at the Company's expense) prepare and file with the Commission
an amendment or supplement to the Prospectus that corrects such statement
or omission or effects such compliance and will furnish without charge to
each Underwriter and to any dealer in securities as many copies of such
amended or supplemented Prospectus as you may from time to time reasonably
request. If the delivery of a prospectus relating to the Shares is required
under the Act at any time nine months or more after the date of the
Prospectus, upon your request but at the expense of the Underwriter making
such request, the Company will prepare and deliver to such Underwriter as
many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act. Neither your consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 7.
(v) The Company promptly from time to time will take such action as
you may reasonably request to qualify the Shares for offering and sale
under the securities or blue sky laws of such jurisdictions as you may
request and will continue such qualifications in effect for as long as may
be necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or a dealer in securities or to file a general consent
to service of process or to render the Company subject to any franchise or
other taxes other than consent to service of process or the subjection to
any franchise or other taxes as to the offering or sale of the Shares, in
any jurisdiction in which it is not now subject.
(vi) The Company will promptly provide you, without charge, (A) three
executed copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, (B) for each other Underwriter a
conformed copy of the Registration Statement as originally filed and of
each amendment thereto, without exhibits, and (C) so long as a prospectus
relating to the Shares is required to be delivered under the Act, as many
copies of each Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto as you may reasonably request.
(vii) As soon as practicable, but in any event not later than 45 days
after the end of the first quarter ending after one year following the
effective date of the Registration Statement, the Company will make
generally available to its security holders an earnings statement of the
Company and its subsidiaries, if any, covering a period of at least 12
months beginning after the effective date of the Registration Statement
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations thereunder.
(viii) During the period beginning from the date hereof and continuing
to and including the date 180 days after the date of the Prospectus, the
Company will not, without the prior written consent of The
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC ("▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), directly or
indirectly make, agree to or cause any offer, sale (including short sale),
loan, pledge or other disposition of, or grant any options, rights or
warrants to purchase with respect to, or otherwise transfer or reduce any
risk of ownership of, directly or indirectly, or file any registration
statement with respect to the registration of any shares of Common
Stock or any securities convertible into or exchangeable or exercisable for
Common Stock, except as provided in Section 2 and except that the Company
may (A) grant awards pursuant to the Company's existing incentive plans and
may issue shares of Common Stock upon the exercise of such awards, (B)
issue shares of Common Stock upon the exercise of any option or warrant
outstanding and approved by the Company's Board of Directors on or prior to
the date hereof , and (C) issue shares of Common Stock to be used as the
purchase price for any acquisition of another business; provided, that any
recipient of Common Stock in any such acquisition shall, prior to such
recipient's receipt thereof, agree in writing to be bound by all of the
restrictions applicable to the Company in this paragraph.
(x) The Company shall, prior to or concurrently with the execution of
this Agreement, deliver a Lock-Up Agreement executed by each Executing
Shareholder to the effect that such person will not, during the period
commencing on the date such person signs such agreement and ending 180 days
after the date of the Prospectus, without the prior written consent of
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ or pursuant to Section 2 hereof, (A) directly or
indirectly make, agree to or cause any offer, sale (including short sale),
loan, pledge or other disposition of, or grant any options, rights or
warrants to purchase with respect to, or otherwise transfer or reduce any
risk of ownership of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exchangeable or exercisable for Common
Stock; (B) enter into any swap or other arrangement that transfers all or a
portion of the economic consequences associated with the ownership of the
Common Stock; or (C) make any demand for, or exercise any right with
respect to, the registration of shares of Common Stock or any securities
convertible into or exchangeable or exercisable for Common Stock.
Notwithstanding the immediately preceding sentence, during such period,
each Executing Shareholder may transfer shares of Common Stock pursuant to
a bona fide gift; PROVIDED that any recipient of Common Stock pursuant to
any such gift shall, prior to such recipient's receipt thereof, agree in
writing to be bound by all of the restrictions contained in such Executing
Shareholder's Lock-Up Agreement until 180 days after the date of the
Prospectus.
(xi) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to you and, upon request,
to each of the other Underwriters, without charge, (A) copies of all
reports or other communications (financial or other) furnished to
shareholders, (B) 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 (C) such additional information
concerning the business and financial condition of the Company and
its subsidiaries, if any, as you may reasonably request from time to time,
other than any report or other communication that has been filed with the
Commission under its ▇▇▇▇▇ System and that is publicly available.
(xii) Neither the Company nor any of its officers, directors or
affiliates will take, directly or indirectly, prior to the termination of
the underwriting syndicate contemplated by this Agreement, any action
designed to cause or to result in, or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of any of the Shares.
(xiii) The Company will apply the net proceeds from the offering
substantially in the manner set forth under "Use of Proceeds" in the
Prospectus but in no event invest or otherwise use the net proceeds from
the offering in such a manner as would require the Company to register as
an "investment company" within the meaning of the Investment Company Act.
(xiv) The Company will use its best efforts to cause the Shares be
included for quotation on the Nasdaq National Market (or another nationally
recognized exchange) at each Time of Delivery and for at least three years
from the date hereof.
(xv) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Shares, the Company will file a
Rule 462(b) Registration Statement with the Commission registering the
Shares not so covered in compliance with Rule 462(b) by 10:00 p.m., Atlanta
time, on the date of this Agreement and will pay to the Commission the
filing fee for such Rule 462(b) Registration Statement at the time of the
filing thereof or to give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act.
(xvi) During a period of five years from the effective date of the
Registration Statement, the Company will file with the Commission, from
time to time after the effective date of the Registration Statement, such
reports as are required by the Act (including, without limitation, Rule 463
of the Commission under the Act or any successor provision), Exchange Act,
and the rules and regulations of the Commission thereunder, and will also
file with the securities commissions in jurisdictions where the Shares have
been sold by any Underwriter any such reports as are required to be filed
by the securities acts and the regulations of those jurisdictions.
(xvii) If at any time during the period beginning on the date the
Registration Statement becomes effective and ending on the later of (A) the
date 30 days after such effective date and (B) the date that is the earlier
of (1) the date on which the Company first files with the Commission a
Quarterly Report on Form 10-Q after such effective date and (2) the date on
which the Company first issues a quarterly financial report to shareholders
after such effective date, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your reasonable
opinion the market price of the Common Stock has been or is likely to be
materially affected (regardless of whether such rumor, publication or event
necessitates an amendment of or supplement to the Prospectus), the Company
will, after written notice from you advising the Company to the effect set
forth above, forthwith prepare, consult with you concerning the substance
of, and disseminate a press release or other public statement, reasonably
satisfactory to you, responding to or commenting on such rumor, publication
or event; provided, however, that unless otherwise required by law, the
Company shall not be required to do so if, in the reasonable judgment of
the Company's Chief Executive Officer, the issuance of such release or
statement would be adverse to the Company or its business, operations or
financial results.
(xviii) The Company will maintain a transfer agent, and if necessary
under the laws of the State of Delaware, a registrar for the Shares.
(b) COVENANTS OF THE SELLING SHAREHOLDERS. Each Selling Shareholder
covenants and agrees with each of the Underwriters:
(i) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, such
Selling Shareholder will not, without the prior written consent of The
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC or pursuant to Section 2 hereof, (A)
directly or indirectly make, agree to or cause any offer, sale (including
short sale), loan, pledge or other disposition of, or grant any options,
rights or warrants to purchase with respect to, or otherwise transfer or
reduce any risk of ownership of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exchangeable or
exercisable for Common Stock; (B) enter into any swap or other arrangement
that transfers all or a portion of the economic consequences associated
with the ownership of the Common Stock; or (C) make any demand for, or
exercise any right with respect to, the registration of shares of Common
Stock or any securities convertible into or exchangeable or exercisable for
Common Stock.
(ii) Neither such Selling Shareholder nor any of its officers,
directors or affiliates will (A) take, directly or indirectly, prior to the
termination of the underwriting syndicate contemplated by this Agreement,
any action designed to cause or to result in, or that might reasonably be
expected to constitute, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of any of the
Shares, (B) sell, bid for, purchase or pay anyone any compensation for
soliciting purchases of, the Shares or (C) pay to or agree to pay any
person any compensation for soliciting another to purchase any other
securities of the Company.
(iii) Such Selling Shareholder will pay or to cause to be paid all
transfer or other taxes payable in connection with the transfer and
delivery of the Shares to be sold by such Selling Shareholder.
6. EXPENSES. The Company will pay all costs and expenses incident to the
performance of the Company's and each of the Selling Shareholders' obligations
under this Agreement, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated pursuant to Section 10 hereof,
including, without limitation, all costs and expenses incident to (a) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and, if applicable, filing
of the Registration Statement (including all amendments thereto), any
Preliminary Prospectus, the Prospectus and any amendments and supplements
thereto, this Agreement and any blue sky memoranda; (b) the delivery of copies
of the foregoing documents to the Underwriters; (c) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Shares; (d) the preparation, issuance and delivery to the Underwriters of
any certificates evidencing the Shares, including transfer agent's and
registrar's fees; (e) the qualification of the Shares for offering and sale
under state securities or blue sky laws, including all filing fees; (f) any
listing of the Shares on the National Association Securities Dealers Automated
Quotation National Market System, (g) the fees and disbursements of counsel for
the Underwriters in connection with the review and clearance by the National
Association of Securities Dealers, Inc., of the underwriting and underwriters'
compensation terms and arrangements and the qualification of the Shares for
offering and sale under state securities or blue sky laws, and (h) any expenses
for travel, lodging and meals incurred by the Company and any of its officers,
directors and employees in connection with any meetings with prospective
investors in the Shares. It is understood, however, that, except as provided in
this Section, Section 8 and Section 10 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses relating to the offer and sale of the Shares. The provisions of this
Section 6 shall not supersede or otherwise affect any agreement that the Company
and the Selling Shareholders may otherwise have
for allocation of such expenses among themselves.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject to the accuracy of the representations
and warranties of the Company and the Selling Shareholders contained herein as
of the date hereof and as of such Time of Delivery, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Shareholders of their respective
covenants and agreements hereunder, and to the following additional conditions
precedent:
(a) All filings required by Rule 424, Rule 430A, Rule 434 or Rule 462(b)
under the Act, if applicable, shall have been duly made; if the Company is
required to file a Rule 462(b) Registration Statement after the effectiveness of
this Agreement, such Rule 462(b) Registration Statement shall have been declared
effective not later than 11:00 a.m., Atlanta time, on the date of this Agreement
or such later date and time as shall have been consented to by you in writing.
If required, the Prospectus and any amendment or supplement thereto shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing and in accordance with Section 5(a) of
this Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceedings for that
purpose shall have been instituted, or to the knowledge of the Company and the
Representatives, threatened or contemplated by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction.
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green, P.C., counsel for the Underwriters, shall
have furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Company, the validity of the Shares
being delivered at such Time of Delivery, the Registration Statement, the
Prospectus, and other related matters as you may reasonably request, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(c) You shall have received an opinion, dated such Time of Delivery, of
▇▇▇▇▇▇, Hall & ▇▇▇▇▇▇▇, counsel for the Company, in form and substance
satisfactory to you and your counsel, to the effect that:
(i) The Company was duly organized as a corporation, and is existing
and in good standing, under the laws of the State of Delaware and has full
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder, to own and use its properties and to conduct its
business as
described in the Registration Statement and the Prospectus.
(ii) The Company's authorized, issued and outstanding capital stock is
as disclosed in the Prospectus. All of the issued and outstanding shares of
capital stock of the Company (including the Shares to be sold by the
Selling Shareholders) have been duly authorized and validly issued, are
fully paid and nonassessable and conform in all material respects to the
description of the Common Stock contained in the Registration Statement and
the Prospectus. None of the issued shares of capital stock of the Company
has been issued or is owned or held in violation of any preemptive rights
of shareholders, and no person or entity (including any holder of
outstanding shares of capital stock of the Company) has any preemptive or
other rights to subscribe for any of the Shares.
(iii) To such counsel's knowledge, the Company does not have any
subsidiaries and does not own, directly or indirectly, any capital stock or
other equity securities of any other corporation or any ownership interest
in any partnership, joint venture or other association.
(iv) Except as disclosed in the Prospectus, there are no outstanding
(A) securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (B) warrants, rights or
options to subscribe for or purchase from the Company any such capital
stock or any such convertible or exchangeable securities or obligations, or
(C) obligations of the Company to issue any shares of capital stock, any
such convertible or exchangeable securities or obligations, or any such
warrants, rights or options. All such securities, obligations, warrants and
options described in (A), (B) and (C) above have been duly authorized by
the Company's Board of Directors.
(v) The portion of the Shares to be issued and sold by the Company
pursuant to this Agreement have been duly authorized for issuance and sale
pursuant to this Agreement and, when issued and delivered by the Company
against payment therefor as provided herein, will be validly issued, fully
paid and nonassessable and will conform in all material respects to the
description of the Common Stock contained in the Prospectus, and the
issuance thereof will not be subject to any preemptive or, to such
counsel's knowledge, similar rights; the certificates evidencing the Shares
comply with all applicable requirements of Delaware law, the Certificate of
Incorporation and Bylaws of the Company, and The Nasdaq Stock Market; and
the Common Stock has been registered under the Exchange Act, and approved
for inclusion on The Nasdaq Stock Market's National Market, subject to
notice of issuance.
(vi) Except (A) as disclosed in the Registration Statement and
the Prospectus, to such counsel's knowledge, (1) there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include any securities in the Registration Statement
(or any such right has been effectively waived) or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act and (2) neither the filing of the Registration
Statement nor the offering or sale of the Shares as contemplated by this
Agreement gives rise to any rights for or relating to the registration of
any securities of the Company.
(vii) To the knowledge of such counsel, all offers and sales of
capital stock of the Company prior to the date hereof were exempt from the
registration requirements of the Act by reason of Sections 3(b) and 4(2)
thereof and were the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky
laws.
(viii) The Company is not, or with the giving of notice or passage of
time or both, would not be, (A) in violation of its Certificate of
Incorporation or Bylaws, or (B) to such counsel's knowledge, in default
under any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company is a party or by which
the Company or any of its properties or assets are subject and which is
filed as an exhibit to the Registration Statement (each, a "Material
Agreement"), except, in the case of clause (B), such defaults that would
not, individually or in the aggregate, have a material adverse effect on
the Company.
(ix) The execution of this Agreement did not, the issue and sale of
the Shares being issued at such Time of Delivery and the performance by the
Company of its obligations under this Agreement and the consummation of the
other transactions herein contemplated will not, (A) (with or without the
giving of notice or the passage of time or both) result (i) in a breach or
violation of any of the terms or provisions of, (ii) constitute a default
under, or (iii) to such counsel's knowledge, result in the creation or
imposition of any lien upon any property or assets of the Company pursuant
to, any Material Agreement, (B) violate any provision of the Certificate of
Incorporation or Bylaws of the Company or (C) to such counsel's knowledge,
violate any provision of any constitution, statute, rule or regulation or
any order, judgment or decree of any court or governmental agency or body
having jurisdiction over the Company or any of its properties or assets,
except, in the case of clauses (A) and (C), such breach, violation, default
or lien that would not, individually or in the aggregate, have a material
adverse effect on the Company.
(x) To such counsel's knowledge, the Company does not own any real
property and has good title to all personal property owned by it, free and
clear of all liens, security interests, pledges, charges, encumbrances,
mortgages and defects, except such as are disclosed in the Prospectus or
such as do not materially and adversely affect the value of such property
and do not interfere with the use of such property by the Company. All real
property and buildings held under lease by the Company are held by the
Company under valid, subsisting and enforceable leases with such exceptions
as are disclosed in the Prospectus or are not material and do not interfere
with the use made and proposed to be made of such property and buildings by
the Company.
(xi) No consent, approval, authorization, order or declaration of or
from, or registration, qualification or filing with, any court or
governmental agency or body on the part of the Company is required for the
issue and sale of the Shares to be sold by the Company or the consummation
of the transactions by the Company contemplated by this Agreement, except
the registration of the Shares to be sold by the Company under the Act and
such as may be required under state securities or blue sky laws in
connection with the offer, sale and distribution of the Shares to be sold
by the Company by the Underwriters.
(xii) To such counsel's knowledge, neither the Company (A) is not in
violation of, or in default with respect to, any constitution, statute,
rule or regulation, except as described in the Prospectus or as such do not
and will not individually or in the aggregate have a material adverse
effect on the financial position, results of operations, business or
prospects of the Company, and (B) is bound by any order, judgment or
decree, except as described in the Prospectus or as such violations do not
and will not individually or in the aggregate have a material adverse
effect on the financial position, results of operations, business or
prospects of the Company. To such counsel's knowledge, the Company holds
all Authorizations necessary for the conduct of its business as described
in the Registration Statement and the Prospectus.
(xiii) The Company has duly authorized the execution and delivery of
this Agreement and the performance by the Company of its obligations
hereunder. The Company has duly executed and delivered this Agreement. This
Agreement is enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and moratorium
laws and other laws relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles, including without
limitation, those limiting the availability of specific performance,
injunctive relief and other equitable remedies and those providing
equitable defenses and except
that the right to indemnity and contribution may be limited by federal and
state securities laws.
(xiv) The Registration Statement and the Prospectus and each amendment
or supplement thereto (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the rules and
regulations thereunder. To the knowledge of such counsel, there are no (A)
contracts, instruments or other documents or agreements that are required
to be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement and are not so described or
filed as required, (B) constitutions, laws, orders, judgments, decrees,
rules or regulations which are required to be described in the Registration
Statement or the Prospectus and are not so described as required, (C)
pending or threatened legal or governmental proceedings that are required
to be described in the Registration Statement or the Prospectus and are not
so described as required, or (D) relationships, direct or indirect, between
or among the Company, on the one hand, and the directors, officers or
shareholders of the Company, on the other hand, which are required to be
described in the Registration Statement or the Prospectus and are not so
described as required; to such counsel's knowledge, as of the date of the
Prospectus and at such Time of Delivery, the Company is not engaged in
substantive discussions with any third party with respect to, or obligated
to complete, any acquisitions for which disclosure of PRO FORMA financial
information in the Prospectus is required by the Act; and all descriptions
in the Registration Statement (including, without limitation, the
statements under Items 14 and 15 of Part II of the Registration Statement)
and the Prospectus of (W) contracts, instruments and other documents and
agreements, (X) laws, orders, judgments, decrees, rules and regulations,
(Y) pending and threatened legal and governmental proceedings, and (Z)
relationships, direct or indirect, between or among the Company on the one
hand, and the directors, officers, and shareholders of the Company on the
other hand, are fair summaries thereof and fairly present the information
required to be disclosed with respect thereto under the Act.
(xv) The Registration Statement is effective under the Act; any
required filing of the Prospectus pursuant to Rule 424(b) or Rule 430A has
been made in the manner and within the time period required; and to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission.
(xvi) The Company is not, and will not be as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company," or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940.
Such counsel shall also state that such counsel has participated in
conferences with officers and other representatives of the Company and
representatives of the independent certified public accountants for the Company,
at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and, although such counsel is not
passing upon and does not assume any responsibility for, nor has such counsel
independently verified, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and Prospectus, no facts have come to
the attention of such counsel that lead them to believe that the Registration
Statement, or any further amendment thereto made prior to such Time of Delivery,
on its effective date and as of such Time of Delivery, contained or contains any
untrue statement of a material fact or omitted or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, or any amendment or supplement thereto
made prior to such Time of Delivery, as of its issue date and as of such Time of
Delivery, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (provided that such counsel need express no belief regarding the
financial statements and related schedules and other financial or statistical
data contained in the Registration Statement, any amendment thereto, or the
Prospectus, or any amendment or supplement thereto).
Such counsel shall also confirm to you that (i) the Company is qualified to
transact business as a foreign corporation and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except where the
failure to so qualify would not have a material adverse effect on the financial
position, results of operations or business of the Company, and (ii) except as
disclosed in the Registration Statement and the Prospectus, to such counsel's
knowledge, there does not exist any litigation, arbitration, claim, proceeding
or investigation pending or threatened to which the Company is a party or to
which any of its properties are subject, which, if determined adversely to the
Company would, individually or in the aggregate, have a material adverse effect
upon the financial position, results of operations or business of the Company.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. The term "to such counsel's
knowledge" shall mean examination of documents in such counsel's files and
considering the actual knowledge of the individual
attorneys in such counsel's firm who have given substantive attention to matters
on behalf of the Company.
(d) You shall have received an opinion, dated such Time of Delivery, of
▇▇▇▇▇▇, Hall & ▇▇▇▇▇▇▇, counsel for the Selling Shareholders, in form and
substance reasonably satisfactory to you and your counsel, to the effect that,
with respect to each Selling Shareholder:
(i) Such Selling Shareholder has all requisite power and authority to
enter into each of this Agreement and such Selling Shareholder's Power of
Attorney and Custody Agreement, to sell, assign, transfer and deliver the
Shares being sold by the Selling Shareholder in the manner provided herein
and therein, and to perform the Selling Shareholder's other obligations
hereunder and thereunder.
(ii) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Shareholder, each of which is
enforceable against such Selling Shareholder in accordance with its terms
subject to applicable bankruptcy, insolvency, reorganization and moratorium
laws and other laws relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles, including without
limitation, those limiting the availability of specific performance,
injunctive relief and other equitable remedies and those providing
equitable defenses and except that the right to indemnity and contribution
may be limited by federal and state securities laws.
(iii) This Agreement has been duly executed and delivered by or on
behalf of such Selling Shareholder; the sale of the Shares to be sold by
such Selling Shareholder at such Time of Delivery and the execution,
delivery and performance of this Agreement, the Power of Attorney and the
Custody Agreement and the consummation of the transactions herein and
therein contemplated will not (A) to the knowledge of such counsel, with or
without the giving of notice or the passage of time or both, 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,
lease or other agreement or instrument to which such Selling Shareholder is
a party or to which any of their respective properties or assets is
subject, (B) conflict with or violate any provision of the Certificate of
Incorporation or Bylaws or other governing instruments of such Selling
Shareholder or (C) violate any statute, rule or regulation or, to the
knowledge of such counsel, any order, judgment or decree of any court or
governmental agency or body having jurisdiction over such Selling
Shareholder or any of such Selling Shareholder's properties or assets,
except, in the case of clauses (A) and (C), such breach, violation, default
or lien that, individually or in
the aggregate, would not have a material adverse effect on the Selling
Shareholder.
(iv) No consent, approval, authorization, order or declaration of or
from, or registration, qualification or filing with, any court or
governmental agency or body is required for the issue and sale of the
Shares being sold by such Selling Shareholder or the consummation of the
transactions contemplated by this Agreement, the Power of Attorney or the
Custody Agreement, except the registration of such Shares under the Act and
such as may be required under state securities or blue sky laws or the
by-laws and rules of the NASD in connection with the offer, sale and
distribution of such Shares by the Underwriters.
(v) Such Selling Shareholder has valid and marketable title to the
Shares to be sold by such Selling Shareholder, and assuming (A) an
Underwriter acquires its interest in the Shares to be sold by such Selling
Shareholder to such Underwriter without notice of any adverse claim (within
the meaning of the Uniform Commercial Code as in effect in the State of
such Selling Shareholder's residence or organization (the "UCC")), (B) such
Underwriter has paid the purchase price of such Shares and (C) such Shares
have been credited to the securities account of such Underwriter maintained
with DTC, then such Underwriter will have a securities entitlement (as
defined in Section 8-102(a)(17) of the UCC) to such Shares purchased by
such Underwriter free of any lien or adverse claim to such Shares, and free
if any restrictions on transfer.
In rendering any such opinion, such counsel may assume that all state laws
are the same law as the states of residence or organization of the Selling
Shareholders, may rely, as to matters of fact, to the extent such counsel deem
proper, on certificates of responsible officers of the Company, the Selling
Shareholders and public officials and the representations and warranties of the
Selling Shareholders contained in this Agreement, and may rely, to the extent
set forth in such opinion, or opinions of other counsel required by any Selling
Shareholder.
(e) You shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
accountants, letters dated, respectively, the date hereof (or, if the
Registration Statement has been declared effective on a date prior to date of
the execution and delivery of this Agreement, dated such effective date and the
date of this Agreement) and each Time of Delivery, in form and substance
satisfactory to you, containing the information and statements of the type
ordinarily included in accountants "comfort letters" to Underwriters with
respect to the financial statements and certain information contained in the
Registration Statement and the Prospectus.
(f) Since the date of the latest audited financial statements included
in
the Prospectus, the Company shall not have sustained (i) any loss or
interference with its business from fire, explosion, flood, hurricane or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as disclosed in or
contemplated by the Prospectus, or (ii) any change, (including without
limitation a change in management or control of the Company), in or affecting
the position (financial or otherwise), results of operations or net worth of the
Company otherwise than as disclosed in or contemplated by the Prospectus, the
effect of which, in either such case, is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the purchase,
sale and delivery of the Shares being delivered at such Time of Delivery as
contemplated by the Registration Statement, as amended as of the date hereof.
(g) Subsequent to the date hereof, there shall not have occurred any of
the following: (i) any suspension or limitation in trading in securities
generally on the New York Stock Exchange, or the Nasdaq National Market or any
setting of minimum prices for trading on such exchange, or in the Common Stock
by the Commission or the Nasdaq National Market; (ii) a moratorium on commercial
banking activities in New York or Georgia declared by either federal or state
authorities; (iii) any outbreak or escalation of hostilities involving the
United States, declaration by the United States of a national emergency or war
or any other national or international calamity or emergency if the effect of
any such event specified in this clause (iii) in your reasonable judgment makes
it impracticable or inadvisable to proceed with the purchase, sale and delivery
of the Shares being delivered at such Time of Delivery as contemplated by the
Registration Statement, as amended as of the date hereof; (iv) the enactment,
publication, decree or other promulgation of any constitution, statute,
regulation, rule, order, law, decree, writ or judgment of any court or other
governmental authority which in your good faith and reasonable opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the
Company, or (v) any adverse change in general economic, political, financial or
international conditions which has an adverse impact on trading prices of
securities that, in your good faith and reasonable judgment, makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated by the Prospectus.
(h) The Company shall have furnished to you at such Time of Delivery
certificates of officers of the Company and certificates of the Selling
Shareholders, satisfactory to you, as to the accuracy of the representations and
warranties of the Company and such Selling Shareholders herein at and as of such
Time of Delivery, as to the performance by the Company and such Selling
Shareholders of all of their respective obligations hereunder to be performed at
or prior to such Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (a) and (f) of
this Section 7, and as to such other matters as you may reasonably request.
(i) The Shares shall be included for quotation on the Nasdaq National
Market, subject to notice of issuance.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter its directors, its officers and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which such Underwriter
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages, liabilities or judgments (or actions in respect thereof) are caused by,
arise out of or are based upon: (i) any breach of any representation or warranty
made by the Company in Section l(a) of this Agreement; (ii) any untrue statement
or alleged untrue statement of any material fact contained in (A) the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or (B) any application or
other document, or any amendment or supplement thereto, executed by the Company
or based upon written information furnished by or on behalf of the Company filed
in any jurisdiction in order to qualify the Shares under the securities or blue
sky laws thereof or filed with the Commission or any securities association or
securities exchange (each an "Application"); or (iii) the omission or alleged
omission to state in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Preliminary Prospectus or the
Prospectus, in light of the circumstances under which they were made) not
misleading, and will reimburse each Underwriter for any legal or other expenses
(including, without limitation, the reasonable fees and expenses of counsel)
reasonably incurred by such Underwriter in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement or any amendment thereto, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto or any Application in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through you expressly for use therein (it being
understood that the only information so provided is the information included in
the last paragraph on the cover page and the first five paragraphs and the
seventh, thirteenth, fourteenth, sixteenth and seventeenth paragraphs under the
caption "Underwriting" in any Preliminary Prospectus and the Prospectus). The
Company will not, without the prior written consent of each Underwriter, settle
or compromise or consent to the entry of any judgment in any pending
or threatened claim, action, suit or proceeding (or related cause of action or
portion thereof) in respect of which indemnification may be sought hereunder
(whether or not such Underwriter is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of such Underwriter from all liability arising out of such
claim, action, suit or proceeding (or related cause of action or portion
thereof).
(b) Each Selling Shareholder, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities and judgments, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages, liabilities or judgment (or actions in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged untrue
statement made by such Selling Shareholder in Section l(b) of this Agreement; or
(ii) any untrue statement or alleged untrue statement of any material fact by
such Selling Shareholder contained in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any Application or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of any
Preliminary Prospectus or the Prospectus, in light of the circumstances under
which they were made) not misleading, and will reimburse each Underwriter for
any legal or other expenses (including, without limitation, the reasonable fees
and expenses of counsel) reasonably incurred by such Underwriter in connection
with investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that a Selling Shareholder shall only be liable in its capacity as a
Selling Shareholder pursuant to clause (ii) to the extent that any statements in
or omissions or alleged omissions to state in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any Application, are based upon the information
included under the caption "Principal Shareholders," which specifically relates
to such Selling Shareholder (other than the percentage of shares beneficially
held), or to the extent any such Selling Shareholder is a Director or the
Company or has a representative on the Board of Directors of the Company, such
Selling Shareholder failed to bring to the attention of the Underwriters
anything of which such Selling Shareholder is currently aware without any
investigation by such Selling Shareholder to cause such Selling Shareholder to
believe that there is any untrue statement relating to the Company of any
material fact contained in the Registration Statement or any amendment thereto,
the Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto, or any Application, or any omission to state therein a material fact
relating to the Company required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, FURTHER, HOWEVER, that
no such Selling Shareholder shall be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto or any
Application in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through you expressly for use
therein (it being understood that the only information so provided is the
information included in the last paragraph on the cover page and the first five
paragraphs and the seventh, thirteenth, fourteenth, sixteenth and seventeenth
paragraphs under the caption "Underwriting" in any Preliminary Prospectus and
the Prospectus); PROVIDED, FURTHER, HOWEVER, that such Selling Shareholder shall
be liable hereunder in the aggregate only to the extent of the total net
proceeds from the offering (before deducting expenses) received by such Selling
Shareholder from the Underwriters for the Shares sold by such Selling
Shareholder hereunder unless any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement or any amendment
or supplement thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application included under the caption
"Principal Shareholders," which specifically relates to such Selling Shareholder
(other than the percentage of shares beneficially held) in which case such
limitation of the liability of such Selling Shareholder shall not apply. No
Selling Shareholder will, without the prior written consent of each Underwriter,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding (or related cause of action or
portion thereof) in respect of which indemnification may be sought hereunder
(whether or not such Underwriter is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of such Underwriter from all liability arising out of such
claim, action, suit or proceeding (or related cause of action or portion
thereof).
(c) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless the Company and each Selling Shareholder against any losses,
claims, damages or liabilities to which the Company or any Selling Shareholder
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information
furnished to the Company by such Underwriter through you expressly for use
therein (it being understood that the only information so provided is the
information included in the last paragraph on the cover page and the first five
paragraphs and the seventh, thirteenth, fourteenth, sixteenth and seventeenth
paragraphs under the caption "Underwriting" in any Preliminary Prospectus and
the Prospectus); and will reimburse the Company and each Selling Shareholder for
any legal or other expenses reasonably incurred by the Company or such Selling
Shareholder in connection with investigating or defending any such loss, claim,
damage, liability or action.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection, except if, as and to
the extent that such failure shall have compromised the rights or increased the
liability or prospective liability of the Indemnifying Party, in which case such
Indemnifying party shall have the right to set off against the amount otherwise
due and owing by such Indemnifying Party the finally judicially determined
amount of such increased liability. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party); PROVIDED, HOWEVER, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be one or more legal defenses
available to it or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying party
shall not have the right to assume the defense of such action on behalf of such
indemnified party and such indemnified party shall have the right to select
separate counsel to defend such action on behalf of such indemnified party.
After such notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence or (ii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the
indemnifying party or (iii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party. Nothing in this Section 8(d) shall preclude an indemnified
party from participating at its own expense in the defense of any such action so
assumed by the indemnifying party.
(e) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages, liabilities or
judgments (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, 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 Shareholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholders 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 Shareholders bear to the total
underwriting discounts and commissions received by the Underwriters. 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 or the Selling Shareholders on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Selling Shareholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) 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 in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection
(e), no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
Further, notwithstanding the provisions of this subsection (e), no Selling
Shareholder shall be required to contribute any amount that, together with the
amount of any damages which such Selling Shareholder has otherwise been required
to pay pursuant to this Section 8, exceeds the limit on such Selling
Shareholder's liability prescribed by Section 8(b). No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section 8 shall be in addition to any liability which the Company or such
Selling Shareholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and any Selling Shareholder and to each
person, if any, who controls the Company or any Selling Shareholder within the
meaning of the Act.
9. DEFAULT OF UNDERWRITERS. (a) If any Underwriter defaults in its
obligation to purchase Shares at a Time of Delivery, you may in your discretion
arrange for you or another party or other parties to purchase such Shares on the
terms contained herein. If within thirty-six (36) hours after such default by
any Underwriter you do not arrange for the purchase of such Shares, the Company
and the Selling Shareholders shall be entitled to a further period of thirty-six
(36) hours within which to procure another party or other parties satisfactory
to you to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company and the Selling
Shareholders that you have so arranged for the purchase of such Shares, or the
Company and the Selling Shareholders notify you that they have so arranged for
the purchase of such Shares, you or the Company and the Selling Shareholders
shall have the right to postpone a Time of Delivery for a period of not more
than seven days or such longer period agreed to by you and the Company in order
to 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 to file promptly any amendments to the Registration Statement or
the Prospectus that in your opinion may thereby be made necessary. The cost of
preparing, printing and filing any such amendments shall be paid for by the
Underwriters. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Shareholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of Shares to be purchased at such Time of Delivery, then
the Company and the Selling Shareholders shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made, but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. TERMINATION. (a) This Agreement may be terminated with respect to the
Firm Shares or any Optional Shares in the sole discretion of the Representatives
by notice to the Company given prior to the First Time of Delivery or any
Subsequent Time of Delivery, respectively, in the event that (i) any condition
to the obligations of the Underwriters set forth in Section 7 hereof has not
been satisfied, or (ii) the Company or the Selling Shareholders shall have
failed, refused or been unable to deliver the Shares or to perform all
obligations and satisfy all conditions on their respective parts to be performed
or satisfied hereunder at or prior to such Time of Delivery, in either case
other than by reason of a default by any of the Underwriters. If this Agreement
is terminated pursuant to this Section 10(a), the Company and the Selling
Shareholders, pro rata in accordance with the number of Shares to be sold
hereunder will reimburse the Underwriters severally upon demand only for all
out-of-pocket expenses (including counsel fees and disbursements) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Shares. Neither the Company nor any Selling Shareholder shall in any event
be liable to any of the Underwriters for the loss of anticipated profits from
the transactions covered by this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Shareholders as provided in Section 9(a), the aggregate number of
such Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of Shares to be purchased at such Time of Delivery, or if the Company and
the Selling Shareholders shall not exercise the right described in Section 9(b)
to require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to a
Subsequent Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Shareholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Shareholders, except for
the expenses to be borne by the Company, the Selling Shareholders and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company, its officers, the Selling
Shareholders and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person referred to in Section 8(e) or the Company, any Selling
Shareholder or any officer or director or controlling person of the Company or
any Selling Shareholder referred to in Section 8(e), and shall survive delivery
of and payment for the Shares. The respective agreements, covenants, indemnities
and other statements set forth in Sections 6 and 8 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
12. NOTICES. All communications hereunder shall be in writing and, if sent
to any of the Underwriters, shall be mailed, delivered or transmitted by
facsimile and confirmed in writing to you in care of The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Company, LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Finance Department (with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green, P.C., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.) if to
any Selling Shareholder shall be sufficient in all respects if delivered or sent
by registered mail for such Selling Shareholder at its address set forth in
Schedule II hereto with a copy to its counsel at its address set forth on
Schedule II hereto; and if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed in writing to the Company at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇ (with a copy to ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.).
13. REPRESENTATIVES. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you jointly or by The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company,
LLC will be binding upon all the Underwriters.
14. BINDING EFFECT. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and the Selling Shareholders
and to the extent provided in Sections 8 and 10 hereof, the officers and
directors and controlling persons referred to therein and their respective
heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to any
provisions regarding conflicts of laws.
16. COUNTERPARTS. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us one of the counterparts hereof, and upon the
acceptance hereof by The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC, on behalf of each of
the Underwriters, this letter will constitute a binding agreement among the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in the Master Agreement among Underwriters, a copy of which shall be
submitted to the Company for examination, upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
▇▇▇▇▇▇▇▇.▇▇▇, Inc.
By:
Name:
Title:
▇▇▇▇ ▇. ▇▇▇▇▇
By:
Name:
Attorney-in-Fact
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
Name:
Attorney-in-Fact
LRF Investments, Inc.
By:
Name:
Attorney-in-Fact
[ADD OTHERS]
The foregoing Agreement is hereby
confirmed and accepted as of the date first
written above at Atlanta, Georgia.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO., INC.
FAC/EQUITIES, A DIVISION OF FIRST ALBANY CORPORATION
By: The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
On behalf of each of the Underwriters
SCHEDULE I
Number of Optional
Total Number of Firm Shares to be
Shares to be Purchased if Maximum
Underwriter Purchased Option Exercised
----------- -------------------- --------------------
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., Inc.
FAC/Equities, a division of First Albany Corporation
---------- ----------
Total
SCHEDULE II
TOTAL NUMBER OF
OPTIONAL SHARES TO BE
SELLING SHAREHOLDERS* SOLD
--------------------
▇▇▇▇ ▇. ▇▇▇▇▇
c/o ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o ▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LRF Investments, Inc.
_____________________
_____________________
Attn: ________________
[ADD OTHERS]
---------------------
* Each of the Selling Shareholders has executed and delivered a Power of
Attorney appointing ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ such Selling
Shareholder's Attorneys-in-Fact. Each of the Selling Shareholders is
represented by ▇▇▇▇▇▇, Hall & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
ANNEX I
SHAREHOLDERS EXECUTING A "LOCK-UP" AGREEMENT
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
LRF Investments, Inc.
[others to be added]
SELLING SHAREHOLDERS'
POWER OF ATTORNEY
FOR SALE OF SHARES OF COMMON STOCK,
$.01 PAR VALUE, OF ▇▇▇▇▇▇▇▇.▇▇▇, INC.
The undersigned, ▇▇▇▇▇▇▇▇.▇▇▇, Inc. (the "COMPANY") and certain other
holders of the Company's common stock (such holders and the undersigned being
hereinafter sometimes collectively referred to as the "SELLING SHAREHOLDERS"),
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., Inc. and
FAC/Equities, a division of First Albany Corporation, as representatives (the
"REPRESENTATIVES") of the underwriters to be named therein (the "UNDERWRITERS").
The Selling Shareholders propose to sell to the Underwriters pursuant to the
Underwriting Agreement certain authorized and issued shares of the common stock,
$.01 par value, of the Company (the "COMMON STOCK") owned by them. It is
understood that at this time there is no commitment on the part of the
Underwriters to purchase any shares of Common Stock and no assurance that the
Underwriting Agreement will be entered into by the Company or the Underwriters.
The undersigned hereby irrevocably constitutes and appoints ▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, each with full power and authority to act alone in
any matter hereunder and with full power of substitution, the true and lawful
attorneys-in-fact of the undersigned (individually an "ATTORNEY" and
collectively the "ATTORNEYS"), with full power and authority in the name of, for
and on behalf of, the undersigned to take any and all of the following actions:
1. To sell, assign, transfer and deliver to the several Underwriters
up to the number of shares of Common Stock set forth on the signature page
hereof, such shares of Common Stock to be represented by certificate(s)
deposited by the undersigned pursuant to the Custody Agreement (the "CUSTODY
AGREEMENT") between the undersigned and ChaseMellon Shareholder Services L.L.C.,
as Custodian (the "CUSTODIAN"), at a purchase price per share to be paid by the
Underwriters as the Attorneys, in their sole discretion, shall determine, but at
the same price per share at which the Company and all other Selling Shareholders
sell Common Stock to the Underwriters;
2. To determine the number of shares of Common Stock to be sold by
the undersigned to the Underwriters which number shall be no greater but may be
fewer than that set forth on the signature page hereof (such total number of
shares as is finally determined by the Attorneys and set forth opposite the name
of the undersigned in Schedule II to the Underwriting Agreement is hereinafter
referred to as the "SHARES");
3. To execute, deliver and perform the Underwriting Agreement with
power to make such amendments to the Underwriting Agreement as the Attorneys, in
their sole discretion, may deem advisable and, together with the Representatives
and a committee of the Board of Directors of the Company, to determine the
public offering price and the purchase price per share of Common Stock to be
paid by the Underwriters (subject to paragraph 1 above) and the other terms of
sale;
4. On behalf of the undersigned, to make the representations and
warranties and enter into the agreements contained in the Underwriting Agreement
(including, without limitation, entering into "lock-up" agreements);
5. (a) To instruct the Custodian on all matters pertaining to the
sale of the Shares and the delivery of certificates therefor, including: (i) the
transfer of the Shares on the books of the Company in order to effect the sale
of the Shares (including designating the name or names in which new
certificate(s) for Shares are to be issued and the denominations thereof), (ii)
the delivery to or for the account of the Underwriters of the certificate(s) for
the Shares against receipt by the Custodian or its agent of the purchase price
to be paid therefor, (iii) the payment, out of the proceeds (net of underwriting
discounts) from the sale of the Shares by the undersigned to the Underwriters,
of any expense incurred in accordance with paragraph 6 which is not payable by
the Company and any transfer taxes payable in connection with the transfer of
the Shares to the Underwriters ("TRANSFER TAXES") and (iv) the transmission to
the undersigned of the proceeds from the sale of the Shares (after deducting all
amounts payable by the undersigned pursuant to clause (iii) above) and the
return to the undersigned of new certificate(s) representing the excess, if any,
of the number of shares of Common Stock represented by certificate(s) deposited
with the Custodian over the number of Shares sold to the Underwriters; and (b)
to amend the Custody Agreement and any related documents in such manner that is
not materially adverse to the undersigned;
6. To incur or authorize the incurrence of any necessary or
reasonably appropriate expense in connection with the sale of the Shares and to
determine the amount of any Transfer Taxes;
7. To take any and all steps deemed necessary or desirable by the
Attorneys in connection with the registration of the Shares under the Securities
Act of 1933, as amended (the "ACT"), the Securities Exchange Act of 1934, as
amended, and the securities or "blue sky" laws of various states and
jurisdictions, including, without limitation, the giving, making or filing of
such undertakings, consents to service of process and representations and
agreements and the taking of such other steps as the Attorneys may deem
necessary or desirable;
8. To make, execute, acknowledge and deliver all such other
contracts, stock powers, orders, receipts, notices, instructions, certificates,
letters and other writings, including, without limitation, communications with
the Securities and Exchange Commission and the National Association of
Securities Dealers, Inc. ("NASD"), and in general to do all things and to take
all actions which the Attorneys may reasonably consider necessary or desirable
in connection with the sale of Shares to the Underwriters and the public
offering thereof, as fully as could the undersigned if personally present and
acting;
9. If necessary, to endorse (in blank or otherwise) on behalf of the
undersigned the certificate(s) representing the Shares, or a stock power or
powers attached to such certificate(s);
10. To retain legal counsel in connection with any and all matters
referred to herein;
11. To exercise any power conferred upon, and to take any action
authorized or required to be taken by, the Selling Shareholders pursuant to the
Underwriting Agreement; and
12. To sign such other certificates, documents and agreements and
take any and all other actions as the Attorneys may deem necessary or desirable
in connection with the consummation of the transactions contemplated by this
Power of Attorney.
Each Attorney may act alone in exercising the rights and powers
conferred on the Attorneys in this Power of Attorney, and the act of any
Attorney shall be the act of the Attorneys. Each Attorney is hereby empowered to
determine in his or her sole discretion the time or times when, the purpose for
and the manner in which any power herein conferred upon him or her shall be
exercised, and the conditions, provisions or covenants of any instrument or
document which may be executed by him or her pursuant hereto. The undersigned
acknowledges that ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ are officers and directors
of the Company.
The undersigned acknowledges receipt of a copy of the Registration
Statement on Form S-1 (the "REGISTRATION STATEMENT") relating to the offering of
the Shares and the other shares of Common Stock to be sold by the Company and
the other Selling Shareholders (the "OFFERED SHARES") and a copy of the
preliminary form of the Underwriting Agreement dated April 26, 2000. The
undersigned has reviewed the Registration Statement and the preliminary form of
the Underwriting Agreement and understands the obligations and agreements of the
undersigned set forth in the Underwriting Agreement. ALL REPRESENTATIONS AND
WARRANTIES OF THE SELLING SHAREHOLDERS IN THE UNDERWRITING AGREEMENT WITH
RESPECT TO THE UNDERSIGNED ARE AS OF THE DATE HEREOF, AND WILL BE AS OF THE DATE
OF THE EXECUTION OF THE UNDERWRITING AGREEMENT AND EACH TIME OF DELIVERY (AS
DETERMINED IN ACCORDANCE WITH THE UNDERWRITING AGREEMENT), TRUE AND CORRECT. ALL
SUCH REPRESENTATIONS AND WARRANTIES WILL, AS PROVIDED IN THE UNDERWRITING
AGREEMENT, SURVIVE THE TERMINATION OF THE UNDERWRITING AGREEMENT AND THE
DELIVERY OF AND PAYMENT FOR THE SHARES.
Upon the execution and delivery of the Underwriting Agreement by the
Attorneys on behalf of the Selling Shareholders, the undersigned agrees to be
bound by and to perform each and every covenant and agreement contained therein
of the undersigned as a Selling Shareholder (including, without limitation, the
agreements contained therein regarding indemnification and contribution and the
delivery of an opinion of counsel to the undersigned).
The undersigned agrees, if so requested, to provide an opinion of
counsel, addressed to Company counsel, which opinion shall expressly permit
reliance thereon by Company counsel, setting forth such matters as Company
counsel may reasonably request in rendering its opinion pursuant to the
Underwriting Agreement and such other documentation as the Attorneys, the
Company, the Representatives or any of their respective counsel may request to
effectuate any of the provisions hereof or of the Underwriting Agreement, all of
the foregoing to be in form and substance satisfactory in all respects to the
party requesting such documentation.
This Power of Attorney and all authority conferred hereby are granted
and conferred subject to and in consideration of the interests of the Attorneys,
the several Underwriters, the Company and the other Selling Shareholders who may
become parties to the Underwriting Agreement, and for the purposes of completing
the transactions contemplated by the Underwriting Agreement and this Power of
Attorney.
This Power of Attorney is an agency coupled with an interest and all
authority conferred hereby SHALL BE IRREVOCABLE, and shall not be terminated by
any act of the undersigned or by operation of law, whether by the death or
incapacity of the undersigned (or either or any of the undersigned) or by the
occurrence of any other event or events (including, without limitation, the
termination of any trust or estate for which the undersigned is acting as a
fiduciary or fiduciaries, the death or incapacity of one or more trustees,
guardians, executors or administrators under such trust or estate or the
dissolution or liquidation of any corporation or partnership) (any of the
foregoing being hereinafter referred to as an "EVENT"). If an Event shall occur
after the execution hereof but before completion of the transactions
contemplated by the Underwriting Agreement or
this Power of Attorney, then certificate(s) representing the Shares will be
delivered to the Underwriters by or on behalf of the undersigned in
accordance with the terms and conditions of the Underwriting Agreement and
the Custody Agreement and any actions taken hereunder by the Attorneys shall
be as valid as if such Event had not occurred, regardless of whether or not
the Custodian, the Attorneys, the Underwriters, or any one of them, shall
have received notice of such Event.
Notwithstanding any of the foregoing provisions, if the Underwriting
Agreement shall not have been executed and delivered prior to December 31, 2000,
or if on any earlier date the Representatives shall have notified the Company in
writing that the Underwriting Agreement will not be signed and that the
underwriting has been abandoned, then, upon the written notice of the
undersigned on or after that date to the Attorneys, this Power of Attorney shall
terminate subject, however, to all lawful action done or performed pursuant
hereto prior to the receipt of actual notice.
The undersigned hereby represents, warrants and agrees with the
Company, Company counsel, the Underwriters, Underwriters' counsel, the
Custodian, the Attorneys and the other Selling Shareholders that:
1. The undersigned has all requisite power and authority to enter
into the Underwriting Agreement, this Power of Attorney and the Custody
Agreement and to sell, assign, transfer and deliver to the Underwriters the
Shares to be sold by the undersigned; the execution and delivery of the
Underwriting Agreement, this Power of Attorney and the Custody Agreement have
been duly authorized by all necessary action of the undersigned; the undersigned
has duly executed and delivered the Underwriting Agreement, this Power of
Attorney and the Custody Agreement; and each of the Underwriting Agreement, this
Power of Attorney and the Custody Agreement is a valid and binding agreement of
the undersigned, enforceable in accordance with its terms.
2. No consent, approval, authorization, order or declaration of or
from, or registration, qualification or filing with, any court or governmental
agency or body is required for the sale of the Shares to be sold by the
undersigned pursuant to the Underwriting Agreement or the consummation of the
transactions contemplated by the Underwriting Agreement, this Power of Attorney
or the Custody Agreement, except the registration of such Shares under the Act
and such as may be required under state securities or blue sky laws in
connection with the offer, sale and distribution of such Shares by the
Underwriters.
3. The sale of the Shares to be sold by the undersigned under the
Underwriting Agreement and the execution, delivery and performance of the
Underwriting Agreement, this Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated will not
(A) conflict with, or (with or without the giving of notice or the passage of
time or both) result in a breach of violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which the
undersigned or, if applicable, any of its subsidiaries is a party or to which
any of their respective properties or assets is subject, (B) if applicable,
conflict with or violate any provision of the Certificate of Incorporation or
Bylaws or other governing instruments of the undersigned or any of its
subsidiaries or (C) violate any constitution, statute, rule or regulation or
any order, judgment or decree of any court or governmental agency or body
having jurisdiction over the undersigned or any of the undersigned's
properties or assets, except, in the case of clauses (A) and (C), such
breach, violation, default or lien that would not have a material adverse
effect on the undersigned.
4. The undersigned has, and immediately prior to each Time of
Delivery (as defined in Section 4 of the Underwriting Agreement), the
undersigned will have, good and valid title to the Shares to be sold by the
undersigned thereunder, free and clear of all restrictions on transfer, liens,
security interests, pledges, charges, encumbrances, defects, shareholders'
agreements, voting trusts, equities or claims of any nature whatsoever; and,
upon delivery of such Shares against payment therefor as provided herein and
therein, good and valid title to such Shares, free and clear of all liens,
security interests, pledges, charges, encumbrances, defects, shareholders'
agreements, voting trusts, equities or claims of any nature whatsoever, will
pass to the several Underwriters.
5. Neither the undersigned nor, if applicable, any of its officers,
directors or affiliates has (A) taken, directly or indirectly, any action
designed to cause or result in, or that has constituted or might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares or (B)
since the filing of the Registration Statement (1) sold, bid for, purchased or
paid anyone any compensation for soliciting purchases of, the Shares or (2) paid
or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
6. Certificates in negotiable form representing all of the Shares to
be sold by the undersigned pursuant to the Underwriting Agreement have been
placed in custody under a Custody Agreement, in the form heretofore furnished to
and approved by the Representatives, duly executed and delivered by the
undersigned to ChaseMellon Shareholder Services, L.L.C., as custodian.
7. The information in the Registration Statement under the caption
"Principal and Selling Shareholders" which specifically relates to the
undersigned (other than with respect to the percentage of shares beneficially
held by the
Undersigned, with respect to which the undersigned makes no representation)
does not, and will not on the date of the execution of the Underwriting
Agreement or on the First Time of Delivery, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and if there is any
change in the information referred to in this paragraph, the undersigned will
immediately notify you of such change
8. Except as noted on Attachment A hereof, the undersigned is not a
"MEMBER"* of the NASD, a controlling shareholder of a "MEMBER", a "PERSON
ASSOCIATED WITH A MEMBER"* or an "AFFILIATE"* of a "MEMBER" or a member of the
"IMMEDIATE FAMILY"* of any of the foregoing or an "UNDERWRITER OR RELATED
PERSON"* with respect to the proposed offering of the Common Stock.
9. The undersigned will furnish any and all information which the
Company, the Underwriters or their respective counsel deems necessary or
desirable in connection with the preparation and filing of all amendments,
post-effective amendments and supplements to the Registration Statement, any
preliminary prospectus or the prospectus in the form first used to confirm sales
of the Shares (the "PROSPECTUS") or any other filing with any regulatory body or
agency (including the NASD), as well as any and all information which the
Commission, the NASD or any state securities regulatory authority may request.
The foregoing representations, warranties and agreements, as
well as those contained in the Underwriting Agreement and the Custody Agreement,
are made for the benefit of, and may be relied upon by, the other Selling
Shareholders, the Attorneys, the Company, Company Counsel, the Underwriters,
Underwriters Counsel and the Custodian and their representatives, agents and
counsel. In addition, the foregoing representations, warranties and agreements
shall remain operative and in full force and effect, and shall survive delivery
of and payment for the Shares, regardless of (i) any investigation, or statement
as to the results thereof, made by or on behalf of any of the persons listed in
the preceding sentence, (ii) acceptance of the Shares and payment for them under
the Underwriting Agreement and (iii) termination of this Power of Attorney.
It is understood that the Attorneys assume no responsibility or
liability to any person other than to deal with the certificate(s) for shares of
Common Stock deposited with the Custodian pursuant to the Custody Agreement and
the proceeds from the sale of the Shares in accordance with the provisions
hereof. The Attorneys make no representations with respect to and shall have no
responsibility for the Registration Statement or the Prospectus nor, except as
herein expressly
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*See Appendix A hereto for the definition of these terms.
provided, for any aspect of the offering of Common Stock, and the Attorneys
shall not be liable for any error of judgment or for any act done or omitted
or for any mistake of fact or law except for the Attorneys' own gross
negligence or willful misconduct. The undersigned agrees to indemnify the
Attorneys for and to hold the Attorneys, jointly and severally, free from and
harmless against any and all loss, claim, damage, liability or expense
incurred by or on behalf of the Attorneys, or any of them, arising out of or
in connection with acting as Attorneys under this Power of Attorney, as well
as the cost and expense of defending against any claim of liability
hereunder, and not due to the Attorneys' own gross negligence or willful
misconduct. The undersigned agrees that the Attorneys may consult with
counsel of their choice (which may but need not be counsel for the Company)
and the Attorneys shall have full and complete authorization and protection
for any action taken or suffered by the Attorneys, or any of them hereunder,
in good faith and in accordance with the opinion of such counsel.
It is understood that the Attorneys shall serve entirely without
compensation.
This Power of Attorney shall be binding upon the undersigned and the
heirs, legal representatives, distributees, successors and assigns of the
undersigned.
This Power of Attorney shall be governed by the laws of the
Commonwealth of Massachusetts without regard to its conflict of law provisions.
Witness the due execution of the foregoing Power of Attorney as of the
date written below.
Maximum Number of Shares of Common Stock to
be Sold by Selling Shareholder(s):
------------------------------
Very truly yours,
--------------------------------------
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Signature(s)
DATED: _________, 2000
Print Name and Address of Selling Shareholder(s) and Name and Title of any
Person Signing as Agent or Fiduciary:
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Telephone: ( )
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Facsimile: ( )
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To be signed in EXACTLY the same manner as the shares of Common Stock are
registered
ACKNOWLEDGMENT
State of __________________________ )
) ss.
County of __________________________ )
On this the ___ day of ________, 2000 before me personally appeared
________________, who acknowledged the signing of the foregoing instrument and
that the same is the free act and deed of such person (and if such person is
signing on behalf of a corporation, partnership or trust that the same is the
free act and deed of such corporation, partnership or trust and that such person
is duly authorized to sign the foregoing instrument).
WITNESS my hand and official seal.
Notary's Signature
ATTACHMENT A
STATEMENT OF RELATIONSHIP WITH A MEMBER OF THE
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC.
I, Selling Shareholder, have the following relationship with a member
of the National Association of Securities Dealers, Inc.:
APPENDIX A
DEFINITIONS OF TERMS
1. The NASD defines a "MEMBER" as being any broker or dealer admitted
to membership in the NASD.
2. The NASD defines a "PERSON ASSOCIATED WITH A MEMBER" as being
every sole proprietor, general or limited partner, officer, director or branch
manager of any member, or any natural person occupying a similar status or
performing similar functions, or any natural person engaged in the investment
banking or securities business who is directly or indirectly controlling or
controlled by such member (for example, any employee), whether or not any such
person is registered or exempt from registration with the NASD.
3. The NASD defines "AFFILIATE" to include a company which controls,
is controlled by or is under common control with a member. A company is presumed
to control a member if the company beneficially owns 10 percent (10%) or more of
the outstanding voting securities of a member which is a corporation, or
beneficially owns a partnership interest in 10 percent (10%) or more of the
distributable profits or losses of a member which is a partnership. A company is
presumed to be controlled by a member if the member and persons associated with
the member beneficially own 10 percent (10%) or more of the outstanding voting
securities of a company which is a corporation, or beneficially own a
partnership interest in 10 percent (10%) or more of the distributable profits or
losses of a company which is a partnership. A company is presumed to be under
common control with a member if (i) the same natural person or company controls
both the member and company by beneficially owning 10 percent (10%) or more of
the outstanding voting securities of a member or company which is a corporation,
or by beneficially owning a partnership interest in 10 percent (10%) or more of
the distributable profits or losses of a member or company which is a
partnership or (ii) a person having the power to direct or cause the direction
of the management or policies of the member or the company also has the power to
direct or cause the direction of the management or policies of the other entity
in question.
4. The NASD defines "IMMEDIATE FAMILY" of a person as being such
person's parents, mother-in-law, father-in-law, husband or wife, brother or
sister, brother-in-law or sister-in-law, son-in-law or daughter-in-law, and
children, or any other person who is supported, directly or indirectly, to a
material extent by such person.
5. The NASD defines an "UNDERWRITER OR RELATED PERSON" with respect
to a proposed offering as being any Underwriter, Underwriter's counsel,
financial consultants and advisors, finders, members of the selling or
distribution group, any member participating in the proposed offering and any
and all other persons associated with or related to and members of the immediate
family of any of such persons.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
MASTER AGREEMENT AMONG UNDERWRITERS
BASIC PROVISIONS FOR OFFERINGS OF SECURITIES
May 7, 1992
These basic provisions (the "Basic Provisions") set forth the general
terms and conditions pursuant to which the several Underwriters will agree among
themselves with reference to their proposed purchases severally of securities
(the "Securities") referred to in an underwriting, placement, or terms agreement
(the "Underwriting Agreement") to be executed by the Issuer of such Securities
(the "Company") and the selling securityholders, if any, named therein (the
"Selling Securityholders").
1. UNDERWRITING ARRANGEMENTS. (a) From time to time, in connection with
offerings of the Securities by Underwriters to be represented by The
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc., either alone or with one or more other firms
(the "Representatives"), the Representatives may invite one or more Underwriters
to become a member of an underwriting syndicate on the terms and conditions set
forth herein, which shall be deemed to include the terms and conditions set
forth in (i) any letter, telegram, facsimile transmission, wire, telex or other
written communication or telephone call (confirmed immediately in writing) to
prospective Underwriters in connection with an invitation to participate as
Underwriters of the Securities (the "Invitation Wire") and (ii) any letter,
telegram, facsimile transmission, wire, telex or other written communication or
telephone call (confirmed immediately in writing) to Underwriters in connection
with the terms of any particular public offering of Securities (the "Terms
Wire"), provided that the terms and conditions set forth herein and therein
shall be applicable only to offerings with respect to which The
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc. has expressly informed Underwriters that such
terms and conditions shall be applicable. Under certain circumstances, the
Invitation Wire and Terms Wire may be combined in a single communication, in
which case any reference herein to either the Invitation Wire or the Terms Wire
shall refer to such single communication. Any Invitation Wire, the Terms Wire
and this Master Agreement Among Underwriters are together referred to herein as
this "Agreement."
(b) The Terms Wire specifies, with respect to the Underwriter to whom
such Terms Wire is addressed (i) the amount of the Securities to be purchased by
such Underwriter, the purchase price to be paid by such Underwriter for the
Securities, (ii) the offering price of the Securities or, if the initial
offering price is to be determined by a formula based upon market prices, the
terms of the formula, (iii) the interest rate, if any, (iv) the selling
concession, if any, to be allowed to Selected Dealers (as defined in Section
5(c) hereof), (v) the amount of any reallowance to other dealers, (vi) the
Representatives' compensation for managing the offering, (vii) certain
information with respect to the Trustee, if any, and (viii) other matters,
including whether the Underwriting Agreement provides the Underwriters with an
option to purchase additional Securities (the "Option Securities") to cover
over-allotments and whether the Underwriters are authorized to solicit
institutional investors to purchase Securities pursuant to
Delayed Delivery Contracts, certain terms thereof and the Underwriters
compensation therefor.
(c) By its acceptance by telegram, facsimile transmission, telex, wire
or telephone call (confirmed immediately in writing) of the Invitation Wire or
the Terms Wire, as the case may be, in accordance with the terms thereof and its
acceptance of an allotment of Securities as set forth in the Terms Wire, each
Underwriter agrees that it will purchase, on the terms and conditions set forth
in the Underwriting Agreement, in the Invitation Wire, if any, in the Terms
Wire, in the Prospectus referred to below and herein, the amount of such
Securities set forth in the Underwriting Agreement to be purchased by it.
(d) If acceptance of an Invitation Wire has been received, the Terms
Wire may state that an Underwriter will be deemed to have accepted an allotment
of Securities unless the Syndicate Department of The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company,
Inc. receives a telegram, facsimile transmission, wire, telex or telephone call
prior to the time specified in the Terms Wire giving notice of such
Underwriter's rejection of its allotment of Securities. Notwithstanding the
foregoing, in certain instances the Representatives may notify the Underwriters
that no affirmative acceptance to either any Invitation Wire or the Terms Wire
may be required. In such case, an Underwriter will be deemed to have accepted an
allotment of Securities unless the Syndicate Department of The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Company, Inc. receives a telegram, facsimile transmission, wire or telex prior
to the time specified in the Terms Wire giving notice of such Underwriter's
rejection of its allotment of Securities.
2. REGISTRATION STATEMENT, PROSPECTUS AND OFFERING CIRCULAR. As used in
this Agreement, (i) the term "Registration Statement" means the registration
statement, as amended, filed with respect to the Securities under the Securities
Act of 1933, (the "Act"), (ii) the terms "Preliminary Prospectus" and
"Prospectus" mean any preliminary prospectus and the prospectus (including any
basic Prospectus and Prospectus Supplement and any documents incorporated by
reference therein) authorized for use in connection with the offering of the
Securities and (iii) the term "Offering Circular" means any offering circular
(including any supplement thereto and any documents incorporated therein). A
conformed copy of the Registration Statement (excluding exhibits other than the
Underwriting Agreement, any indenture covering the Securities, any computation
of the ratio of earnings to fixed charges, and any computation of per share
earnings) and such number of copies of each Prospectus or Offering Circular (and
any documents incorporated by reference therein) as may be requested by any
Underwriter will be delivered to it. Each Underwriter hereby consents to being
named in any Prospectus or Offering Circular as an underwriter of the amount of
Securities specified in the Terms Wire addressed to such Underwriter. The
Securities may be, registered for a delayed or continuous offering pursuant to
Rule 415 under the Act or may be offered and sold under an exemption from
registration under Rule 144A under the Act.
3. AUTHORITY OF THE REPRESENTATIVES. (a) Each Underwriter authorizes
the Representatives, on such Underwriter's behalf, to negotiate in their
discretion the terms of, and to execute and deliver, the Underwriting Agreement.
Each Underwriter also authorizes the Representatives to exercise, in their
discretion, all authority and discretion vested in the Underwriters or in the
Representatives by the Underwriting Agreement and to take all such
action as the Representatives may believe desirable in order to carry out the
Underwriting Agreement and this Agreement.
(b) Each Underwriter authorizes the Representatives to take such action
as, in their discretion, may be necessary or desirable to effect the sale and
distribution of the Securities, including the right to determine and advise the
Company and Selling Securityholders, if any, of the terms of any proposed
offering, the selling concession to Selected Dealers and the reallowance, if
any, to other dealers. Each Underwriter also authorizes the Representatives to
determine all matters relating to the public advertisement of the offering of
the Securities.
(c) Any action to be taken by the Representatives under this Agreement
may be taken by The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc.
4. AUTHORITY OF THE REPRESENTATIVES AS TO WITHDRAWING OR DEFAULTING
UNDERWRITER. (a) Until the termination of this Agreement, the Representatives
are authorized to arrange for or agree to the purchase by other persons, who may
include the Representatives and any of the other Underwriters, of any Securities
not taken up by any withdrawing or defaulting Underwriter. In the event that
such arrangements or agreements are made, the respective amounts of the
Securities to be purchased by the other Underwriters and by such other persons,
if any, shall be taken as the basis for all rights and obligations under this
Agreement; but this shall not in any way affect the liability of any defaulting
Underwriter to the other Underwriters (including the Representatives) for
damages resulting from such default, nor shall such default in any way relieve
any other Underwriter of any of its obligations hereunder or under the
Underwriting Agreement, except as herein or therein provided.
(b) In the event of default by one or more Underwriters in respect of
its obligations under this Agreement, including the obligations to take up and
pay for any Securities or Stabilized Securities (as defined in Section 9(a)
hereof) purchased by the Representatives for their respective accounts pursuant
to Section 9 hereof, or to deliver any Securities sold or over-allotted by the
Representatives for their account pursuant to such Section, and to the extent
that arrangements shall not have been made by the Representatives for any person
to assume the obligations of such defaulting Underwriter, each non-defaulting
Underwriter shall assume its proportionate share of the obligations of each
defaulting Underwriter without relieving any such defaulting Underwriter of its
liability therefor.
5. OFFERING OF THE SECURITIES. (a) The Representatives will notify each
Underwriter when the initial public offering of the Securities (subject to
reservation by the Representatives as herein provided) is to be made. The
Representatives are authorized, in their discretion, after the initial public
offering, to change the public offering price, the selling concession to
Selected Dealers and the reallowance to other dealers. The offering price at any
time in effect is hereinafter referred to as the "public offering price." Each
Underwriter agrees to make, at the initial public offering price, a public
offering of the Securities purchased by it and not reserved by the
Representatives for sale to retail purchasers and dealers.
(b) Each Underwriter agrees that all arrangements for the solicitation
of offers to
purchase the Securities under Delayed Delivery Contracts, if such contracts are
authorized pursuant to the Underwriting Agreement, will be made only through the
Representatives, and each Underwriter authorizes the Representatives to act on
its behalf in making such arrangements for the accounts of all Underwriters or
of less than all Underwriters and in such proportions as the Representatives may
determine, in their discretion. Any fee payable to the Representatives for the
accounts of the Underwriters under the Underwriting Agreement with respect to
arranging sales of Securities pursuant to Delayed Delivery Contracts shall be
credited to the accounts of the Underwriters.
(c) Each Underwriter authorizes the Representatives to reserve and
offer for sale such of the Securities to be purchased by such Underwriter
pursuant to the Underwriting Agreement or for its account under any of the
provisions of this Agreement as the Representatives shall determine (i) to
retail purchasers and (ii) to dealers to be selected by the Representatives (the
"Selected Dealers") (A) who are members of the National Association of
Securities Dealers, Inc. (the "NASD") and who will agree to comply with the
requirements of Section 24 of Article III of the Rules of Fair Practice of the
NASD or (B) who are foreign dealers not eligible for membership in the NASD and
who will agree (I) not to make any sales of the Securities in, or to nationals
or residents of, the United States, its territories or its possessions and (II)
in making any sales of the Securities to comply, as though such foreign dealers
were members of the NASD, with (x) the interpretation of the Board of Governors
of the NASD entitled "Free-Riding and Withholding," (y) the requirements of
Sections 8, 24 and 36 of Article III of the Rules of Fair Practice of the NASD
and (z) to the extent applicable to such foreign dealers, the requirements of
Section 25 of such Article III. The sales referred to in clause (i) shall be
made at the public offering price, and the sales referred to in clause (ii)
shall be made at the public offering price less the selling concession to
Selected Dealers. The Representatives may arrange for any Underwriter, including
the Representatives, to become one of such Selected Dealers, and each
Underwriter agrees that it will not offer any of the Securities for sale at a
price below the public offering price or allow any concession therefrom except
as herein otherwise provided. Sales made by the Representatives for the account
of each Underwriter to Selected Dealers will be as nearly as practicable in the
ratio which the amount of the Securities so reserved for the account of such
Underwriter bears to the aggregate amount of the Securities so reserved for the
account of all Underwriters.
(d) Any such offering may be made by the Representatives pursuant to
the terms and conditions of selling agreements or otherwise, as the
Representatives determine. Each Underwriter authorizes the Representatives to
determine the form and manner of any selling agreements or other communications
with Selected Dealers and, in the event there shall be any such selling
agreements, each Underwriter agrees to be governed by the terms and conditions
of such agreements.
(e) The Representatives, as such, may make purchases and sales of the
Securities from or to any Underwriter or Selected Dealer at the public offering
price less all or any part of the selling concession to Selected Dealers
specified in the Terms Wire. With the Representatives' consent, any Underwriter
may make purchases or sales of the Securities from or to any Underwriter or
Selected Dealer at the public offering price less all or any part of such
selling
concession to Selected Dealers.
(f) The Representatives will notify each Underwriter promptly upon the
release of the public offering of the Securities as to the amount of the
Securities reserved for sale to retail purchasers and Selected Dealers, and the
amount of the Securities not so reserved. Any of the Securities not so reserved
may be sold by each Underwriter for its own account. Each Underwriter agrees,
upon the Representatives' request, at any time or times prior to the termination
of this Agreement with respect to the Securities, to report to the
Representatives as to the amount of the Securities not so reserved which then
remain unsold by it and the Representatives may, in their discretion, add to the
Securities reserved for sale to retail purchasers and Selected Dealers any such
unsold Securities.
(g) If all the Securities so reserved are not promptly sold by the
Representatives, any Underwriter may from time to time, with the
Representatives' consent, obtain a release of all or any Securities of such
Underwriter then remaining unsold, and Securities so released shall thereafter
be deemed not to have been reserved. Securities of any Underwriters so reserved
which remain unsold or if sold have not been paid for at any time prior to the
termination of this Agreement with respect to the Securities may, in the
Representatives' discretion, or upon the request of such Underwriter, be
delivered to such Underwriter for carrying purposes only, but such Securities
shall remain subject to disposition by the Representatives, in their discretion,
until this Agreement is terminated. If the aggregate amount of the Securities so
reserved upon termination of this Agreement does not exceed 20% of the total
amount of the Securities, the Representatives may, in their discretion, sell for
the accounts of the several Underwriters all or any Securities so reserved, at
such prices, on such terms and in such manner as the Representatives may
determine.
(h) The Representatives may, in their discretion, charge the account of
any Underwriter with an amount equal to the selling concession to Selected
Dealers (plus any broker's commissions and transfer taxes) with respect to
Securities purchased by such Underwriter, or purchased for their account, and
not sold to retail purchasers or Selected Dealers for their account by the
Representatives, which, prior to the termination of this Agreement, the
Representatives may purchase or contract to purchase, in the open market or
otherwise, pursuant to this Agreement, for the account of any Underwriter, or
which may be delivered against contracts made prior to the termination of this
Agreement; or in lieu thereof require such Underwriter to repurchase on demand
at the total cost thereof (including commissions and taxes) any of such
Securities so purchased or contracted to be purchased. In lieu of so charging
the account of any Underwriter or delivering such Securities to any Underwriter
obligated to repurchase the same as aforesaid, the Representatives may, in their
discretion, sell the same for the account of such Underwriter, publicly or
privately, without notice, at such prices and upon such terms and to such
persons, including any of the several Underwriters, as the Representatives may
determine, charging to the Underwriters so obligated the amount of any loss and
expense or crediting to such Underwriter the amount of any profit less any
expense resulting from such sale.
6. COMPENSATION TO REPRESENTATIVES. As compensation for the
Representatives' services, each Underwriter agrees to pay the Representatives a
management fee as specified in
the Terms Wire (without reduction for any Securities to be delivered pursuant to
any Delayed Delivery Contracts). Such compensation shall be treated as an
expense of each Underwriter and shall be charged to its account on the books of
the Representatives.
7. PAYMENT AND DELIVERY. (a) Upon the request of the Representatives
each Underwriter will deliver to The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, payment for the Securities to be
purchased by such Underwriter under the Underwriting Agreement in an amount
equal to the initial public offering price for such Securities less the
concession to Selected Dealers. Such payment shall be made in such form and at
such times and planes as may be specified in the Terms Wire. The Representatives
may, however, advance funds (to the extent permitted by law) in respect of
Securities which have been sold or reserved for sale to retail purchasers or
Selected Dealers for the account of any Underwriter. Each Underwriter authorizes
the Representatives to make payment to the Company and the Selling
Securityholders, if any, for the Securities to be purchased by such Underwriter
against delivery to the Representatives of certificates for such Securities for
the account of such Underwriter. Unless notified at least three full business
days prior to the date of delivery to make other arrangements, the
Representatives may, in their discretion, advise the Company and the Selling
Securityholders, if any, to prepare each Underwriter's certificates for the
Securities to be purchased by it in the name of such Underwriter (or in such
other name as the Representatives shall designate, but such other name shall be
for administrative convenience only and shall not affect such Underwriter's
title to such Securities or the several nature of the obligations of the
Underwriters hereunder) in such denomination as the Representatives may
determine. The Representatives will give each Underwriter notice of the date of
delivery.
(b) Each Underwriter authorizes the Representatives to hold and deliver
against payment the Securities purchased by such Underwriter or for its account
which have been sold or reserved for sale to retail purchasers or Selected
Dealers, and agrees to endorse such Securities in blank or to deliver to the
Representatives upon their request appropriate powers executed in blank. The
Representatives will remit promptly to each Underwriter an amount equivalent to
the purchase price paid by such Underwriter, and not advanced or borrowed by the
Representatives for securities sold for such Underwriter's account to retail
purchasers or Selected Dealers and for which payment has been received. The
Representatives agree that Securities not sold or reserved by them as aforesaid
will be available for delivery to each Underwriter at the office of The
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇; or such other address as the Underwriter may be notified by the
Representatives, as soon as practicable after such Securities have been
delivered to the Representatives.
(c) If an Underwriter is a member of, or clears through a member of,
The Depository Trust Company ("DTC"), the Representatives may, in their
discretion, deliver such Underwriter's Securities through the facilities of DTC.
8. AUTHORITY TO BORROW. The Representatives are hereby authorized (to
the extent permitted by law) to arrange such loans for the account of one of the
Underwriters, severally and not jointly, to execute and deliver any notes or
other instruments in connection therewith and to pledge as security therefor all
or any part of the Securities as the Representatives may deem
necessary or advisable to carry out the purchase, carrying and distribution of
the Securities, and to advance their own funds, in their individual capacities,
charging current interest rates. Any lending bank is hereby authorized to rely
upon instructions of the Representatives in all matters relating to any such
loan. The Representatives may deliver to any Underwriter for carrying purposes
such Securities, or any part thereof, which Securities will be redelivered to
the Representatives on demand.
9. OVER-ALLOTMENTS AND STABILIZATION. (a) The Representatives may, for
the account of each Underwriter, until the termination of this Agreement or
earlier surrender of this authorization, (i) over-allot in arranging for sales
of the Securities to retail purchasers and Selected Dealers, and purchase
Securities at such prices as the Representatives may determine for the purpose
of covering such over-allotments, and (ii) for the purpose of stabilizing the
market in Securities, make purchases and sales of Securities or other securities
of the Company which the Representatives may designate for purchase or sale in
stabilizing transactions ("Stabilized Securities"), for long or short account,
on a when-issued basis or otherwise, at such prices, in such amounts and in such
manner as the Representatives may determine; provided that at no time shall the
net dollar commitment of any Underwriter either for long or short account, under
this Section 9, exceed (except as otherwise provided in Section 4 (b) hereof)
20% of the amount of the Securities (and the Option Securities, if any) which
such Underwriter is obligated to purchase pursuant to the Underwriting
Agreement. Such purchases, sales and over-allotments shall be made for the
accounts of the several Underwriters as nearly as practicable in proportion to
the respective underwriting obligations of such Underwriters. Each Underwriter
agrees to take up at cost on demand any Securities or Stabilized Securities so
purchased for their account and to deliver on demand any thereof so sold or any
Securities so over-allotted for their account.
(b) The Representatives may sell for the account of any Underwriter any
Securities or Stabilized Securities purchased pursuant to the provisions of this
Section 9 upon such terms as the Representatives may deem advisable and any
Underwriter, including the Representatives, may participate as a purchaser in
connection with any such sales. The Representatives shall have full
discretionary power to pay such commissions in connection with such purchases
and sales as they may deem proper and to charge the respective accounts of the
Underwriters commissions on purchases and sales effected by them.
(c) If stabilizing transactions are effected pursuant to the
authorizations contained in this Section 9, the Representatives shall effect
such transactions in accordance with the rules of the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and each Underwriter agrees to furnish the
Representatives with the notification required by Rule 17a-2(d) promulgated by
the Commission under the Exchange Act, The Representatives will notify each
Underwriter if they effect any such transactions.
10. OPEN MARKET TRANSACTIONS. Each Underwriter agrees that, except as
herein otherwise provided, until the termination of this Agreement or until
notified by the Representatives prior thereto that such Underwriter is released
from this restriction, it will not buy, sell, deal or trade in the Securities or
Stabilized Securities or, if options to purchase
Securities or common stock into which Securities may be convertible ("Common
Stock") are traded on any securities exchange, buy any right or option to
purchase Securities or Common Stock for their own account or for the accounts of
customers except on unsolicited brokerage orders therefor received and executed
in the ordinary course of their brokerage business. Each Underwriter further
agrees that it will not lend any shares of Common Stock, either before or after
the purchase of the Securities, to any customer, Underwriter, Selected Dealer or
to any other securities broker or dealer. Each Underwriter represents that it
has not participated, since the date on which it was invited by the
Representatives to participate in the offering of Securities, in any
transactions prohibited by the foregoing provisions of this Section 10 and that
it has at all times complied with the provisions of Rule 10b-6 under the
Exchange Act applicable to the offering of the Securities.
11. ALLOCATION OF EXPENSES. Each Underwriter authorizes the
Representatives to charge against such Underwriter's account any and all
expenses incurred by the Representatives, as such, in connection with the
purchase, carrying, offering, sale and distribution of the Securities for the
account of such Underwriter. All expenses of a general nature paid by the
Representatives in connection with the purchase and sale of the Securities shall
be borne by the Underwriters in proportion to the amount of the Securities which
each Underwriter is obligated to purchase pursuant to the Underwriting
Agreement, except that any transfer taxes payable by reason of sales by the
Underwriters shall be charged to the accounts of the respective Underwriters
only to the extent that sales of Securities or Stabilized Securities are made
for such Underwriter's account. In the event of the default of any Underwriter
in carrying out its obligations under this Agreement, the expenses chargeable to
such Underwriter pursuant to this Agreement and not paid by it, as well as any
additional losses or expenses arising from such default, may be charged against
the other Underwriters not so defaulting in proportion to the respective amounts
of Securities which such other Underwriters are obligated to purchase pursuant
to the Underwriting Agreement, without, however, relieving such Underwriter from
its liability therefor. The Representatives' ascertainment of all expenses and
the apportionment thereof shall be conclusive.
12. TERMINATION. This Agreement will terminate at the close of business
on the fifth full day after the date of the Terms Wire unless prior thereto the
Underwriting Agreement shall have been executed and delivered and shall have
become effective, in which event: (a) if there shall be an offering to Selected
Dealers pursuant to the terms of selling agreements, this Agreement will
terminate at the close of business on the thirtieth day after the termination of
the selling agreements, or at such earlier date, not earlier than the
termination of the selling agreements, as the Representatives may determine, but
may be extended for a further period not exceeding forty-five days with the
consent of the Underwriters (including the Representatives) who have agreed to
purchase in the aggregate 50% or more of the total amount of the Securities; or
(b) if there shall be no such offering to Selected Dealers, this Agreement will
terminate at the close of business on the forty-fifth day after payment by the
Underwriters for the Securities, or at such earlier date as the Representatives
may determine. Notwithstanding any settlement of accounts under this Agreement,
each Underwriter agrees to pay its proportionate share (based on its final total
obligation to purchase Securities pursuant to the Underwriting Agreement) of the
amount of any claim, demand or liability which may be asserted against and
discharged by the Underwriters, or any of them, based on the claim that the
Underwriters constitute an association,
unincorporated business or other entity, and also to pay a like proportionate
share of any transfer taxes which may be assessed after such settlement and of
the expenses incurred by the Underwriters, or any of them, and approved by the
Representatives, in contesting any such claim, demand, liability or tax.
13. POSITION OF REPRESENTATIVES. (a) Except as otherwise specifically
provided in this Agreement, the Representatives shall have full authority to
take such action as they may deem necessary or advisable in respect of all
matters pertaining to the Underwriting Agreement and this Agreement in
connection with the purchase, carrying, offering, sale, distribution and
advertising of the Securities, but they shall not be under any liability
whatsoever to any of the Underwriters except such as may be incurred under the
Act and except for want of good faith and for the obligations expressly assumed
by them in this Agreement. No obligations not expressly assumed by the
Representatives in this Agreement shall be implied hereby or inferred from this
Agreement. Authority with respect to matters to be determined by the
Representatives or by the Representatives, the Company and the Selling
Securityholders, if any, pursuant to the terms of the Underwriting Agreement
shall survive the termination of this Agreement. Nothing herein contained shall
constitute the several Underwriters an association, or partners with the
Representatives or with each other, or, except as in this Agreement expressly
provided, render any Underwriter liable for the obligation of any other
Underwriter, and the rights, obligations and liabilities of each of the
Underwriters are several, in accordance with their respective obligations, and
not joint. If the Underwriters, among themselves or with the Selected Dealers,
are deemed to constitute a partnership for Federal income tax purpose, it is the
intent of each Underwriter to be excluded from the application of Subchapter K,
Chapter 1, Subtitle A, of the Internal Revenue Code of 1954, as amended. Each
Underwriter elects to be so excluded and agrees not to take any position
inconsistent with such election. Each Underwriter authorizes the
Representatives, in their discretion, to execute and file on behalf of the
Underwriters such evidence of election as may be required by the Internal
Revenue Service.
(b) The Representatives shall be under no duty to account for any
interest on funds of any of the Underwriters at any time in their hands, and
such funds may be held by the Representatives unsegregated from their general
funds.
14. INDEMNIFICATION AND FUTURE CLAIMS. (a) Each Underwriter agrees to
indemnify and hold harmless each other Underwriter, and each person, if any, who
controls any such other Underwriter within the meaning of Section 15 of the Act,
to the extent and upon the terms that such Underwriter will agree to indemnify,
hold harmless and reimburse the Company and the Selling Securityholders, if any,
as set forth in the Underwriting Agreement.
(b) In the event that at any time any claim or claims shall be asserted
against the Representatives, as such, or shall otherwise involve the
Underwriters generally, or relate to any Preliminary Prospectus, any Prospectus,
any Offering Circular, the Registration Statement, the public offering of the
Securities, or any of the transactions contemplated by this Agreement, each
Underwriter authorizes the Representatives to make such investigation, to retain
such counsel and to take such other action as the Representatives shall deem
necessary or desirable under the circumstances, including settlement of any such
claim or claims if such course of action shall be
recommended by counsel retained by them. Each Underwriter agrees to pay to the
Representatives, on request, such Underwriter's proportionate share (based on
their final total obligation to purchase Securities pursuant to the Underwriting
Agreement) of all expenses incurred by the Representatives (including, but not
limited to, the fees and disbursements of counsel retained by them) in
investigating and defending against such claim or claims, and their
proportionate share of any liability incurred by the Representatives in respect
of such claim or claims, whether such liability shall be the result of a
judgment against the Representatives or as a result of any such settlement. A
claim against or liability incurred by a person who controls an Underwriter
within the meaning of Section 15 of the Act shall be deemed to have been made
against or incurred by such Underwriter.
(c) The foregoing indemnity agreement shall survive the termination of
this Agreement, and shall remain in full force and effect regardless of any
investigation made by or on behalf of such other Underwriter or controlling
person.
15. TITLE TO SECURITIES. The Securities and Stabilized Securities
purchased by or for the account of each Underwriter pursuant to this Agreement
or the Underwriting Agreement shall remain the property of such Underwriter
until sold, and no title to any such Securities or Stabilized Securities shall
in any event pass to the Representatives, as such, by virtue of any of the
provisions of this Agreement.
16. BLUE SKY MATTERS. It is understood that the Representatives assume
no obligation or responsibility with respect to the right of any Underwriter or
other person to sell the Securities in any jurisdiction, notwithstanding any
information which the Representatives may furnish as to the jurisdictions under
the securities laws of which it is believed the Securities may be sold.
17. NASD MEMBERSHIP. The Representatives represent that they are
members in good standing of the NASD and each Underwriter represents that it is
either (a) a member in good standing of the NASD and that in making sales of
Securities it will comply with the Rules of Fair Practice of the NASD,
including, without limitation, Section 24 of Article III thereof, or (b) a
foreign dealer, broker or bank not eligible for membership in the NASD, in which
event such Underwriter agrees that it will not sell any of the Securities in, or
to nationals or residents of, the United States, its territories or its
possessions, except as required by Sections 5 (c) , 5 (e) , 5 (f ) and 9 hereof,
and that in making any sales of the Securities it will comply, as though it were
a member of the NASD, with (i) the interpretation of the Board of Governors of
the NASD entitled "Free-Riding and Withholding," (ii) the requirements of
Sections 8, 24 and 36 of Article III of the Rules of Fair Practice of the NASD
and (iii) to the extent applicable to it, the requirements of Section 25 of such
Article III.
18. UNDERWRITERS' QUESTIONNAIRE. Each Underwriter represents and
warrants to the Representatives, the Company and the Selling Securityholders, if
any, that the statements made in the Underwriters' Questionnaire attached as
Schedule A are (except as otherwise disclosed in writing to the Representatives)
true, correct and complete as of the date of the Terms Wire.
19. CERTAIN AGREEMENTS OF THE UNDERWRITERS. Each Underwriter agrees
that:
(a) Such Underwriter will notify the representatives immediately if any
of the representations of such Underwriter contained in this Agreement cease to
be accurate;
(b) If, immediately prior to the filing of the Registration Statement,
the Company was not subject to the requirements of Section 13 (a) or 15 (d) of
the Exchange Act, such Underwriter (i ) will not sell any Securities to any
account over which it exercises discretionary authority and (ii) confirms that
(A) it is familiar with Release No. 4968 under the Act and Rule 15c2-8 under the
Exchange Act relating to the distribution of prospectuses for securities of an
issuer which is not subject to the reporting requirements of ▇▇▇▇▇▇▇ ▇▇ (▇) ▇▇
▇▇ (▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, (▇) copies of each Preliminary Prospectus have been
or will be distributed to all persons to whom it expects to mail confirmations
of sales, (C) such distribution will be made not less than 48 hours prior to the
time that it is expected such confirmations will be mailed, (D) such
distribution will be either made by air mail if the confirmations are to be sent
by air mail, or by such other means of delivery as shall assure that such
Preliminary Prospectuses will be received not less than 48 hours prior to the
time confirmations are received and (E) such Underwriter will otherwise comply
with said Release; and
(c) Such Underwriter will (i) deliver Preliminary Prospectuses,
Prospectuses and other reports required to be delivered under the Act, the
Exchange Act and the rules and regulations under such Acts, including without
limitation Rule 15c2-8 under the Exchange Act, (ii) keep an accurate record of
the names and addresses of all persons to whom it delivers copies of the
Registration Statement, any amendment thereto or any Preliminary Prospectus or
any document incorporated therein by reference, (iii) upon the request of the
Representatives, furnish promptly to the persons who received copies of the
foregoing documents, any subsequent amendment, revised Preliminary Prospectus,
Prospectus, document incorporated by reference or any memorandum furnished to
the undersigned outlining changes in the Registration Statement or any
Preliminary Prospectus and (iv) deliver a copy of each Prospectus to each person
who purchases any of the Securities from it.
20. NOTICES. Any notice from the Representatives to any Underwriter
shall be deemed to have been duly given if mailed, telephoned (and confirmed in
writing) or given by telegram, wire, facsimile transmission or telex or
telegraphed to such Underwriter at the address set forth in the Terms Wire to
such Underwriter. Any notice from any Underwriter to the Representatives shall
be deemed to have been duly given if mailed, telephoned (and confirmed in
writing) or telegraphed to The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department (or to such
other address as the Underwriter may be notified of by the Representatives).
21. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Georgia, without giving effect to the choice of law
or conflicts of laws principles thereof.
SCHEDULE A
UNDERWRITERS' QUESTIONNAIRE
In connection with each offering of Securities to which this Agreement
relates, except as disclosed to the Representatives in writing, each Underwriter
advises the Representatives as follows and authorizes the Representatives to use
the information furnished in response to this Underwriters' Questionnaire in the
Registration Statement relating to the Securities:
(a) Neither such Underwriter nor any of its directors, officers or
partners, individually or as a part of a "group" (as that term is used in
Section 13 (d) (3) of the Exchange Act), (i) has a "material" relationship (as
defined in Rule 405 under the Act) with the Company or any Selling
Securityholder or (ii) is a director, officer or holder (of record or
beneficially) of 5% or more of any class of voting securities of the Company or
any Selling Securityholders;
(b) With reference to the Interpretation of the Board of Governors of
the NASD with respect to the Review of Corporate Financing, neither such
Underwriter nor any of its "related persons" (as defined by the NASD) (i) has
purchased or otherwise acquired from the Company any warrants, options or other
securities of the Company within 18 months prior to the date that the
Registration Statement was initially filed or subsequent to that date, and there
are no existing arrangements for any such purchase or (ii) has had any dealings
with the Company (except those with respect to the Underwriting Agreement) or
any "affiliate" of the Company (as defined in Rule 405 under the Act) as to
which documents or other information are required to be furnished to the NASD
pursuant to such Interpretation.
(c) Other than as may be stated in the Registration Statement, any
Prospectus, any Offering Circular, the Master Agreement Among Underwriters, the
Underwriting Agreement or any selling agreements, such Underwriter does not know
of any discounts or commissions, including any cash, securities, contract or
other consideration to be received by any dealer in connection with the sale of
the Securities, or of any intention to over-allot the Securities or to stabilize
the price of any security to facilitate the offering of the Securities;
(d) If the Securities are to be issued pursuant to a trust indenture,
such Underwriter is not in control of, controlled by, or under common control
with the Trustee, any other trustee under a trust indenture relating to
securities of the Company and qualified under the Trust Indenture Act of 1939
(an "Other Trustee") or any of their respective affiliates, and none of said
companies or affiliates, or any of their respective directors or executive
officers, is a director, officer, partner, employee, appointee or representative
of such Underwriter;
(e) If the Securities are to be issued pursuant to a trust indenture,
such Underwriter and its directors, executive officers and partners, taken as a
group, did not, on the date of the Trustee's Statement of Eligibility and
Qualification on Form T-1, own beneficially more than 1% of the outstanding
voting securities of the Trustee, the Trustee's parent, any Other Trustee or the
parent of any Other Trustee;
(f) If the Registration Statement is on Form S-1, such Underwriter has
not prepared or had prepared for it within the past 12 months any engineering,
management or similar report or memorandum relating to the broad aspects of the
business, operations or products of the Company, except for reports solely
comprised of recommendations to buy, sell or hold the Company's securities,
unless such recommendations have changed within the past six months;
(g) If the Registration Statement is on either Form S-2 or Form S-3,
such Underwriter has not prepared any report or memorandum for external use by
it or by the Company in connection with the proposed offering of the Securities;
(h) Such Underwriter's proposed commitment to purchase Securities will
not result in a violation by it of the financial responsibility requirements of
Rule 15c3-1 under the Exchange Act;
(i) Such Underwriter is familiar with the rules, regulations and
releases of the Commission dealing with the dissemination of information prior
to and during registration and has not distributed nor will it distribute any
written information outside of its organization relating to the Company or its
securities other than in accordance with such rules, regulations and releases;
and
(j) If the Company is a "public utility," such Underwriter is not a
"holding company" or a "subsidiary group" or an "affiliate" of a "holding
company" or of a "public utility," each as defined in the Public Utility Holding
Company Act of 1935.
SYND 1589550A019. 001 ( /3005) S1ROBHUM 01APR97 14:18
TO: THE ▇▇▇▇▇▇▇▇ -▇▇▇▇▇▇▇▇ COMPANY, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FROM: SIGSC000
ATTENTION: SYNDICATE DEPARTMENT
ATLANTA, GA
APRIL 1, 1997
TO ALL PROSPECTIVE UNDERWRITERS AND DEALERS:
PLEASE BE ADVISED THAT EFFECTIVE MARCH 4, 1997, REGULATION M REPLACES RULES
10B-6, 10B-6A, 10B-7 AND 10B-21 UNDER THE 1934 ACT. ALL REFERENCES TO RULES
10B-6, 10B-6A, 10B-7 AND 10B-21, IF ANY, IN THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
MASTER AGREEMENT AMONG UNDRWRITERS AND THE SELECTED DEALERS AGREEMENT SHALL BE
DEEMED TO BE CHANGED TO REGULATION M EFFECTIVE IMMEDIATELY.
THE FOREGOING CHANGE IS HEREBY INCORPORATED INTO THOSE TWO DOCUMENTS.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
Via CommScan, L.L.C.
CUSTODY AGREEMENT
FOR SALE OF SHARES OF COMMON STOCK,
$.01 PAR VALUE, OF ▇▇▇▇▇▇▇▇.▇▇▇, INC.
ChaseMellon Shareholder Services, L.L.C.
-----------------------
-----------------------
-----------------------
Ladies and Gentlemen:
There are delivered to you herewith certificate(s) representing shares
of Common Stock, $.01 par value ("COMMON STOCK"), of ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a
Delaware corporation (the "COMPANY"), as set forth at the end of this letter on
the page entitled "CERTIFICATE(S) DEPOSITED." Each of the certificates so
delivered is accompanied by an executed assignment form duly endorsed for
transfer and is in negotiable form bearing the signature of the undersigned,
guaranteed by a commercial bank or trust company having an office or a
correspondent in New York City, New York or by a member firm of the New York,
American or Pacific Stock Exchange. The certificate(s) are to be held by you as
Custodian for the account of the undersigned and are to be disposed of by you in
accordance with this Custody Agreement (this "CUSTODY AGREEMENT").
The undersigned agrees to deliver such additional documentation as you,
the Attorneys (as herein defined), the Company or the Representatives (as herein
defined) or any of their respective counsel may reasonably request to effectuate
or confirm compliance with any of the provisions hereof or of the Power of
Attorney (as herein defined) or the Underwriting Agreement (as herein defined),
all of the foregoing to be in form and substance satisfactory in all material
respects to the party reasonably requesting such documentation.
The undersigned has also delivered duly certified resolutions of its
board of directors authorizing it to enter into this Custody Agreement, the
Underwriting Agreement and the Power of Attorney and duly certified copies of
such corporation's by-laws, certificate of incorporation or other organizational
documents.
Concurrently with the execution and delivery of this Custody Agreement,
the undersigned has executed a power of attorney (the "POWER OF ATTORNEY")
irrevocably appointing ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, each with full power
and authority to act alone in any matter thereunder and with full power of
substitution, the true and lawful attorneys-in-fact of the undersigned
(individually,
an "ATTORNEY" and collectively, the "ATTORNEYS"), with full power and
authority in the name of, for and on behalf of, the undersigned with respect
to all matters arising in connection with the sale of the Common Stock by the
undersigned including, but not limited to entering into and performing an
underwriting agreement (the "UNDERWRITING AGREEMENT") among the Company,
certain shareholders of the Company, including the undersigned (the "SELLING
SHAREHOLDERS"), and The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Co., Inc., and FAC/Equities, a division of First Albany
Corporation, as representatives (the "REPRESENTATIVES") of the several
underwriters to be named therein (the "UNDERWRITERS"). The total number of
shares of Common Stock to be sold by the undersigned to the Underwriters as
is finally determined by the Attorneys and set forth opposite the name of the
undersigned in Schedule II to the Underwriting Agreement is hereinafter
referred to as the "SHARES."
You are authorized and directed to hold the certificate(s) deposited
with you hereunder in your custody and, subject to the instructions of the
Attorneys, to take all necessary action (i) to cause the Shares to be
transferred on the books of the Company into such names as the Representatives,
on behalf of the several Underwriters, shall have instructed, including
surrendering the certificate(s) representing the Shares to the transfer agent
for the Common Stock, in exchange for new certificate(s) for shares of Common
Stock registered in such names and in such denominations as the Representatives
shall have instructed; (ii) to deliver such new certificate(s) to the
Representatives, for the accounts of the several Underwriters, against payment
for such Shares at the purchase price per Share specified in the Underwriting
Agreement and to give receipt for such payment; (iii) to deposit the same to
your account as Custodian and draw upon such account to pay such expenses, if
any (the "EXPENSES") and transfer taxes, if any, payable in connection with the
transfer of the Shares to the Underwriters ("TRANSFER TAXES") as you may be
instructed to pay by the Attorneys; and (iv) to transmit to the undersigned,
within 24 hours of receiving instructions from the Attorneys to do so, the
excess, if any, of the amount received by you as payment for the Shares over the
Expenses and Transfer Taxes, if any. Such excess is to be paid in the manner
requested by the undersigned at the end of this Custody Agreement or in such
manner as you, in accordance with the terms hereof, shall deem appropriate. Upon
receipt of instructions from the Attorneys, you shall also return to the
undersigned new certificate(s) representing the excess, if any, of the number of
shares of Common Stock represented by the certificate(s) deposited with you
hereunder over the number of Shares sold by the undersigned to the Underwriters.
Under the terms of the Power of Attorney, the authority conferred
thereby is granted and conferred subject to and in consideration of the
interests of the Attorneys, the several Underwriters, the Company and the other
Selling Shareholders and, prior to December 31, 2000, is irrevocable and not
subject to
termination by any act of the undersigned or by operation of law, whether by
the death or incapacity of the undersigned (or either or any of the
undersigned) or by the occurrence of any other event or events (including,
without limitation, the termination of any trust or estate for which the
undersigned is acting as fiduciary or fiduciaries, the death or incapacity of
one or more trustees, guardians, executors or administrators under such trust
or estate or the dissolution or liquidation of any corporation or
partnership) (any of the foregoing being hereinafter referred to as an
"EVENT"). Accordingly, the certificate(s) deposited with you hereunder and
this Custody Agreement and your authority hereunder are subject to the
interests of the several Underwriters, the Company, the Attorneys and the
other Selling Shareholders, and this Custody Agreement and your authority
hereunder ARE IRREVOCABLE and are not subject to termination by the
occurrence of any Event. If an Event shall occur after the execution hereof
but before the delivery of the Shares to the Underwriters, then
certificate(s) representing such Shares will be delivered by you to the
Underwriters on behalf of the undersigned in accordance with the terms and
conditions of the Underwriting Agreement and this Custody Agreement and any
actions taken by you pursuant to this Custody Agreement shall be as valid as
if such Event had not occurred, whether or not you, the Attorneys, the
Underwriters or any one of them, shall have received notice of such Event.
Notwithstanding any of the foregoing provisions, if the Underwriting
Agreement shall not have been executed and delivered prior to December 31, 2000,
or if on an earlier date the Representatives shall have notified the Company in
writing that the Underwriting Agreement will not be signed and that the
underwriting has been abandoned, then, upon the written request of the
undersigned to you (accompanied by written notice of termination of the Power of
Attorney addressed to each of the Attorneys) on or after that date, you are to
return to the undersigned all certificate(s), together with any stock powers,
delivered herewith.
Until payment of the purchase price for the Shares has been made to you
by or for the account of the several Underwriters, the undersigned shall remain
the owner of all shares of Common Stock represented by the certificate(s)
deposited with you hereunder and shall have the right to vote such shares and
all other securities, if any, represented by such certificate(s) and to receive
all dividends and distributions thereon, except the right to retain custody and
dispose of such shares, which is subject to the rights of the Custodian under
this Custody Agreement, the Attorneys under the Power of Attorney and the
Underwriters under the Underwriting Agreement.
You shall be entitled to act and rely upon any statement, request,
notice or instruction respecting this Custody Agreement given to you by the
Attorneys, or
any one of them. Any Attorney has the authority to instruct you on
irregularities or discrepancies in the certificates representing shares of
Common Stock and any accompanying documents.
In taking any action requested or directed by the Representatives under
the terms of this Custody Agreement, you will be entitled to rely upon a writing
signed by a Vice President, Senior Vice President, Managing Director, Counsel,
Assistant General Counsel or General Counsel of The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company,
LLC.
It is understood that you assume no responsibility or liability to any
person other than to deal with the certificate(s) deposited with you hereunder
and the proceeds from the sale of all or a portion of the securities represented
thereby in accordance with the provisions of this Custody Agreement. The
undersigned agrees to indemnify you for, and to hold you free from and harmless
against, any and all loss, claim, damage, liability or expense incurred by you
arising out of or in connection with acting as Custodian hereunder, as well as
the cost and expense of defending against any claim of liability hereunder, and
not due to your own gross negligence or willful misconduct.
The representations and warranties of the undersigned set forth in the
draft of the Underwriting Agreement and the Power of Attorney are hereby
incorporated by reference herein, and the undersigned represents and warrants
that such representations and warranties are true and correct on the date
hereof. The representations, warranties and agreements contained herein, as well
as those contained in the Power of Attorney and the Underwriting Agreement, are
made for the benefit of, and may be relied upon by, you, the other Selling
Shareholders, the Attorneys, the Company, ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, the
Underwriters and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Green, P.C. and their representatives, agents
and counsel. These representations, warranties and agreements shall remain
operative and in full force and effect, and shall survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any of the persons listed in the
preceding sentence, (ii) acceptance of the Shares and payment for them under the
Underwriting Agreement and (iii) termination of this Custody Agreement.
This Custody Agreement shall be binding upon the undersigned and the
heirs, legal representatives, distributees, successors and assigns of the
undersigned.
This Custody Agreement may be signed in counterparts which together
shall constitute one and the same agreement.
This Custody Agreement shall be governed by the laws of the
Commonwealth of Massachusetts without regard to its conflict of law provisions.
Please acknowledge your acceptance hereof as Custodian, and receipt of
the certificate(s) deposited with you hereunder, by executing and returning the
enclosed copy hereof to the undersigned in care of ▇▇▇▇▇▇ Hall & ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
Dated: _______, 2000
Very truly yours,
*
---------------------------------------------
*
---------------------------------------------
Signature(s)*
Print Name(s) and Address of Selling Shareholder(s) and Name and Title of any
Person Signing as Agent or Fiduciary:
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
Taxpayer I.D. #:
--------------------------------
Telephone: ( )
--------------------------------
--------
*To be signed in EXACTLY the same manner as the shares of Common Stock are
registered.
INSTRUCTION: Complete each column as to certificate(s) to be deposited with the
Custodian.
CERTIFICATE(S) DEPOSITED
STOCK CERT. NO. NUMBER OF SHARES OF COMMON STOCK MAXIMUM NUMBER OF SHARES OF COMMON
REPRESENTED BY CERTIFICATE STOCK TO BE SOLD FROM CERTIFICATE*
--------------------------------------------------------------------------------------------------
--------------------------------------------------------
TOTAL:
--------
*If no indication is made as to the certificate(s) from which securities to be
sold shall be allocated, then selection will be made at the Custodian's
discretion.
INSTRUCTION: Indicate how you wish to receive payment for the shares of Common
Stock sold to the Underwriters. A wire transfer can be made only to an account
standing in exactly the same name as the registered owner of the Common Stock
being sold.
MANNER OF PAYMENT
I request that payment of the net proceeds from the sale of the shares
of Common Stock of the Company to be sold by me pursuant to the Underwriting
Agreement be made in the following manner (CHECK ONE):
/ / CHECK made payable to:
----------------------------------------------------------
to be sent to the following address:
----------------------------------------------------------
----------------------------------------------------------
Phone ( )
------------------------------------------------
Please send by (check one):
/ /First Class Mail
/ /Federal Express
Federal Express Account Number
-------------------------------------------------------
/ / WIRE TRANSFER to the following account:
Account No.
Bank
----------------------------------------------------
(Name)
----------------------------------------------------
(Address)
ABA No.
---------------------------------------------
Phone ( )
------------------------------------------------
/ / OTHER (please specify)
----------------------------------------------------------
CUSTODIAN'S ACKNOWLEDGMENT AND RECEIPT
____________________, as Custodian, acknowledges acceptance of the
duties of the Custodian under the foregoing Custody Agreement and receipt of the
certificate(s) referred to therein.
Dated: ___________, 2000
------------------------------------
By:
Name:
Title:
DO NOT DETACH FROM CUSTODY AGREEMENT
______________, 2000
▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., Inc.
FAC/Equities, a division of First Albany Corporation
c/o The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC
RE: ▇▇▇▇▇▇▇▇.▇▇▇, Inc.-- PUBLIC OFFERING
To facilitate a public offering (the "Offering") of the common stock,
$.01 par value (the "Common Stock"), of ▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware
corporation (the "Company"), under the terms of an Underwriting Agreement to be
entered into among the Company, The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., Inc. and FAC/Equities, a division of First Albany
Corporation, as the representatives of the several underwriters, and the selling
shareholders, the undersigned agrees and represents to you that for a period
beginning on the date of the final prospectus related to the Offering and ending
180 days thereafter, the undersigned will not, except pursuant to the
above-referenced Underwriting Agreement, (1) either (x) directly or indirectly
make, agree to or cause any offer, sale (including short sale), loan, pledge, or
other disposition of, or grant any options, rights or warrants to purchase with
respect to, or otherwise transfer or reduce any risk of ownership of, directly
or indirectly, any shares of Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock or other capital stock of the
Company or (y) enter into any swap or other arrangement that transfers all or a
portion of the economic consequences associated with the ownership of the Common
Stock (regardless of whether any of the transactions described in clause (x) or
(y) is to be settled by the delivery of Common Stock, or such other securities,
in cash or otherwise), or (2) make any demand for, or exercise any right with
respect to, the registration of Common Stock or any securities convertible into
or exchangeable or exercisable for Common Stock, without the prior written
consent of The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC; PROVIDED, HOWEVER, that nothing
contained herein shall prohibit (i) the exercise of stock options or other
purchases of Common Stock under stock option plans or other incentive
compensation arrangements for employees or directors, or the conversion or
exchange of convertible securities into shares of Common Stock, previously
approved by the Company's Board of Directors, or (ii) the gift, pledge or
assignment of any such securities with the consent of The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Company, LLC, which consent shall be granted as long as the donee, pledgee or
assignee agrees, in written instrument delivered to The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Company, LLC within ten days after such gift, pledge or assignment, to be bound
by the terms of this letter. The undersigned consents to the entry of
stop-transfer instructions with the Company's transfer agent against the
transfer of, and authorizes the Company to cause the transfer agent to decline
to transfer, any of the above-described securities owned beneficially or of
record by the undersigned unless such transfer is made in compliance with this
letter agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into the agreements set forth herein and that,
upon reasonable request, the undersigned will execute any additional documents
necessary or desirable in connection with the enforcement hereof. 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.
Sincerely,
Name:
Address:
