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EXHIBIT 1.1
3,000,000 Shares
ADMINISTAFF, INC.
Common Stock, $.01 par value
UNDERWRITING AGREEMENT
___________________, 1997
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_______________, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Administaff, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule II hereto (the
"Underwriters") an aggregate of 3,000,000 shares of the common stock, $.01 par
value, of the Company (the "Firm Shares").
In addition, certain stockholders of the Company (the "Selling
Stockholders") named in Schedule I hereto severally propose to sell to the
several Underwriters not more than an additional 450,000 shares of the common
stock, $.01 par value, of the Company (the "Additional Shares"), each Selling
Stockholder selling the amount set forth opposite such Selling Stockholder's
name in Schedule I hereto, if and to the extent that you, as Managers of the
offering, shall have determined to exercise, on behalf of the Underwriters, the
right to purchase such shares of common stock granted to the Underwriters in
Article III hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares". The shares of common stock, $.01 par
value, of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to as the "Common Stock". The
Company and the Selling Stockholders are hereinafter sometimes referred to
collectively as the "Sellers".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Commission File No. 33-96952) relating
to the Shares. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "Prospectus".
If the Company files a registration statement to register a portion of the
Shares and relies on Rule 462(b) for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to the "Registration Statement" shall be deemed
to refer to both the registration statement referred to above (Commission File
No. 33-96952) and the Rule 462 Registration Statement, in each case as amended
from time to time.
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I.
The Company represents and warrants to each of the Underwriters that:
(a) The Registration Statement has become effective, no
stop order suspending the effectiveness of the Registration Statement
is in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) (i) Each part of the Registration Statement, when
such part became effective, did not contain and each such part, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
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(e) The authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the
Prospectus under the heading "Description of Capital Stock".
(f) The shares of Common Stock (including the Shares to
be sold by the Selling Stockholders) outstanding prior to the issuance
of the Shares to be sold by the Company have been duly authorized and
are validly issued, fully paid and non-assessable.
(g) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the terms
of this Agreement, will be validly issued, fully paid and non-
assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or bylaws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares and except to the
extent that the failure to obtain such consent, approval,
authorization or qualification would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(j) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(k) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the
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Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as
required.
(l) Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except
to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
(m) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 or Rule 462 under the
Securities Act, complied when so filed in all material respects with
the Securities Act and the rules and regulations of the Commission
thereunder.
(n) The Company is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
(o) The Company and its subsidiaries are (i) in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(p) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
II.
Each of the Selling Stockholders represents and warrants to each of
the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
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(b) The execution and delivery by such Selling
Stockholder of, and the performance by such Selling Stockholder of its
obligations under, this Agreement, the Custody Agreement signed by
such Selling Stockholder and ______________________, as Custodian,
relating to the deposit of the Shares to be sold by such Selling
Stockholder (the "Custody Agreement"), and the Power of Attorney
appointing certain individuals as such Selling Stockholder's
attorneys-in-fact to the extent set forth therein, relating to the
transactions contemplated hereby and by the Registration Statement
(the "Power of Attorney") will not contravene any provision of
applicable law, or the certificate of incorporation, by-laws or other
governing instrument of such Selling Stockholder (if such Selling
Stockholder is a corporation or other entity), or any agreement or
other instrument binding upon such Selling Stockholder or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Stockholder, except for such
contraventions that would not adversely affect the title to the
Shares, the offering of the Shares by the Underwriters hereunder or
the ability of such Selling Stockholder to perform its obligations
hereunder, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by such Selling Stockholder of its obligations under this
Agreement or the Custody Agreement or Power of Attorney of such
Selling Stockholder, except as such may be required by the securities
or Blue Sky laws of the various states in connection with the offer
and sale of the Shares, and except for such consents, approvals,
authorizations or orders the failure of which to obtain would not
adversely affect the title to the Shares, the offering of the Shares
by the Underwriters hereunder or the ability of such Selling
Stockholder to perform its obligations hereunder.
(c) Such Selling Stockholder has, and on the Closing Date
will have, valid, marketable title to the Shares to be sold by such
Selling Stockholder and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement, the Custody Agreement and the Power of Attorney and to
sell, transfer and deliver the Shares to be sold by such Selling
Stockholder.
(d) The Shares to be sold by such Selling Stockholder
pursuant to this Agreement have been duly authorized and are validly
issued, fully paid and non-assessable.
(e) The Custody Agreement and the Power of Attorney have
been duly authorized, executed and delivered by such Selling
Stockholder and are valid and binding agreements of such Selling
Stockholder.
(f) Delivery of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement will pass marketable title to
such Shares free and clear of any security interests, claims, liens,
equities and other
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encumbrances, assuming the Underwriters are purchasers for value in
good faith and without notice of any adverse claim.
(g) All information furnished in writing by or on behalf
of such Selling Stockholder for use in the Registration Statement and
Prospectus is, and on the Closing Date will be, true, correct and
complete, and does not, and on the Closing Date will not, contain any
untrue statement of a material fact or omit to state any material fact
necessary to make such information not misleading.
III.
The Company hereby agrees to sell to the several Underwriters, and
each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agree, severally
and not jointly, to purchase from the Company at $__________ per share (the
"Purchase Price") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the same
proportion to the number of Firm Shares to be sold by the Company as the number
of Firm Shares set forth in Schedule II hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Selling Stockholders
agree to sell to the Underwriters the Additional Shares, and the Underwriters
shall have a one-time right to purchase, severally and not jointly, up to
450,000 Additional Shares at the Purchase Price. Additional Shares may be
purchased as provided in Article V hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If
any Additional Shares are to be purchased, each Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth in Schedule II hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
Each Seller hereby agrees that, without your prior written consent, it
will not, during the period ending 180 days after the date of the Prospectus,
(a) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (b) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction
described in clause (a) or (b) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise; provided, however, that
each Selling Stockholder shall be permitted to make a bona fide pledge of
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock during such period if such Selling Stockholder
delivers to Xxxxxx Xxxxxxx & Co. Incorporated an agreement by such pledgee
substantially similar to the agreement contained in this
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paragraph. The foregoing sentence shall not apply to (a) the Shares to be sold
hereunder or (b) the issuance by the Company of any shares of Common Stock upon
the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof of which you have been advised in writing. In
addition, each Selling Stockholder agrees that, without your prior written
consent, it will not, during the period ending 180 days after the date of the
Prospectus, make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
IV.
The Sellers are advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable. The Sellers are further advised by you that the Shares
are to be offered to the public initially at $_______ per share (the public
offering price) and to certain dealers selected by you at a price that
represents a concession not in excess of $_______ per share under the public
offering price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $_________ per share, to any
Underwriter or to certain other dealers.
V.
Payment for the Firm Shares to be sold by the Company shall be made by
certified or official bank check or checks payable to the order of the Company
in New York Clearing House funds at the office of Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m., local time, on
________________, 1997, or at such other time or place on the same or such
other date, not later than __________________, 1997, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to
as the "Closing Date".
Payment for any Additional Shares to be sold by each Selling
Stockholder shall be made by certified or official bank check or checks payable
to the order of such Selling Stockholder in New York Clearing House funds at
the office of Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, at 10:00 a.m., local time, on such date (which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor later
than ten business days after the giving of the notice hereinafter referred to)
as shall be designated in a written notice from you to the Company and the
Selling Stockholders of your determination, on behalf of the Underwriters, to
purchase a number, specified in said notice, of Additional Shares, or on such
other date, in any event not later than __________________, 1997, as shall be
designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Option Closing Date". The notice of the
determination to exercise the option to purchase Additional Shares and of the
Option Closing Date may be given at any time within 30 days after the date of
this Agreement.
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing
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not later than two business days prior to the Closing Date or the Option
Closing Date, as the case may be. The certificates evidencing the Firm Shares
and Additional Shares shall be delivered to you on the Closing Date or the
Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the
transfer of the Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
VI.
The obligations of the Sellers and the several obligations of the
Underwriters hereunder are subject to the condition that the Registration
Statement shall have become effective not later than the date hereof.
The several obligations of the Underwriters hereunder are subject to
the following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred
any change, or any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a whole,
from that set forth in the Registration Statement, that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an
opinion of Xxxxxxx & Xxxxx L.L.P., counsel for the Company, dated the
Closing Date, to the effect that
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such
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qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole;
(ii) each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries
taken as a whole;
(iii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus under the caption "Description of
Capital Stock";
(iv) the shares of Common Stock (including the
Shares to be sold by the Selling Stockholders) outstanding
prior to the issuance of the Shares have been duly authorized
and are validly issued, fully paid and non-assessable;
(v) the Shares to be sold by the Company have
been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar
rights;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement will not contravene any provision of applicable
law (making no comment as to the adequacy of the Company's
disclosure in the Registration Statement for state securities
or Blue Sky laws with respect to this subparagraph) or the
certificate of incorporation or by-laws of the Company or, to
such counsel's knowledge, any agreement or other instrument
binding upon the Company
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or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to such counsel's
knowledge, any judgment, or decree of any governmental body,
agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order
of or qualification with any governmental body or agency is
required for the performance by the Company of its obligations
under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares;
(viii) the statements (A) in the Prospectus under
the captions "Risk Factors -- IRS Audit of the Company's
401(k) Plan; IRS Employee Leasing Market Segment Group", "Risk
Factors -- Costs of 401(k) Plan Compliance", "Risk Factors --
State and Local Regulation", "Industry Regulation",
"Management -- Stock Option Plan", "Management -- Related
Party Transactions", "Description of Capital Stock" and
"Shares Eligible for Future Sale" and (B) in Items 14 and 15
of the Registration Statement, in each case insofar as such
statements constitute summaries of the legal matters,
documents or proceedings referred to therein, are accurate and
complete in all material respects;
(ix) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(x) the Company is not an "investment company" or
an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended; and
(xi) such counsel (A) is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical
data included therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the rules and regulations
of the Commission thereunder, (B) believes that
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(except for financial statements and schedules and other
financial and statistical data as to which such counsel need
not express any belief) the Registration Statement and the
prospectus included therein at the time the Registration
Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading and (C) believes that
(except for financial statements and schedules and other
financial and statistical data as to which such counsel need
not express any belief) the Prospectus does not contain any
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
With respect to subparagraph (xi) of this paragraph (c),
Xxxxxxx & Xxxxx L.L.P. may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without
independent check or verification except as specified and that they
relied as to matters of fact upon the officers and other
representatives of the Company.
The opinion of Xxxxxxx & Xxxxx L.L.P. described in this
paragraph (c) shall be rendered to you at the request of the Company
and shall so state therein.
(d) You shall have received on the Closing Date an
opinion of XxXxxxxx, Xxxxxxxxx & Xxxxxxx, LLP, special counsel for the
Company, dated the Closing Date, to the effect that the statements in
the Prospectus under the captions "Risk Factors -- IRS Audit of the
Company's 401(k) Plan; IRS Employee Leasing Market Segment Group",
"Risk Factors -- Costs of 401(k) Plan Compliance", "Risk Factors --
State and Local Regulation" and "Industry Regulation", in each case
insofar as such statements constitute summaries of legal matters,
documents or proceedings referred to therein, are accurate in all
material respects.
The opinion of XxXxxxxx, Xxxxxxxxx & Xxxxxxx, LLP described in
this paragraph (d) shall be rendered to you at the request of the
Company and shall so state therein.
(e) You shall have received on the Closing Date an
opinion of Xxxxxxx & Xxxxx L.L.P., counsel for the Selling
Stockholders, dated the Closing Date, to the effect that:
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(i) this Agreement has been duly authorized,
executed and delivered by or on behalf of each of the Selling
Stockholders;
(ii) the execution and delivery by each Selling
Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement and the
Custody Agreement and Power of Attorney of such Selling
Stockholder will not contravene any provision of applicable
law, or the certificates of incorporation, by- laws or other
governing instrument of such Selling Stockholder (if such
Selling Stockholder is a corporation or other entity), or, to
such counsel's knowledge, any agreement or other instrument
binding upon such Selling Stockholder or, to such counsel's
knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over such Selling
Stockholder, except for such contraventions that would not
adversely affect the title to the Shares, the offering of the
Shares by the Underwriters hereunder or the ability of such
Selling Stockholder to perform its obligations hereunder, and
no consent, approval, authorization or order of or
qualification with any governmental body or agency is required
for the performance by such Selling Stockholder of its
obligations under this Agreement or the Custody Agreement or
Power of Attorney of such Selling Stockholder, except such as
have been obtained under the Securities Act or as may be
required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares,
and except for such consents, approvals, authorizations or
orders the failure of which to obtain would not adversely
affect the title to the Shares, the offering of the Shares by
the Underwriters hereunder or the ability of such Selling
Stockholder to perform its obligations hereunder;
(iii) each of the Selling Stockholders has valid
and marketable title to the Shares to be sold by such Selling
Stockholder and has the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and the Custody Agreement and Power of Attorney of
such Selling Stockholder and to sell, transfer and deliver the
Shares to be sold by such Selling Stockholder;
(iv) the Custody Agreement of each Selling
Stockholder has been duly authorized, executed and delivered
by such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder; and
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(v) delivery of the Shares to be sold by each
Selling Stockholder pursuant to this Agreement will pass
marketable title to such Shares free and clear of any security
interests, claims, liens, equities and other encumbrances,
assuming the Underwriters are purchasers for value in good
faith and without notice of any adverse claim.
With respect to this paragraph (d), Xxxxxxx & Xxxxx L.L.P. may
rely upon an opinion or opinions of counsel for any Selling
Stockholders and, to the extent such counsel deems appropriate, upon
the representations of each Selling Stockholder contained herein and
in the Custody Agreement and Power of Attorney of such Selling
Stockholder and in other documents and instruments; provided that (A)
each such counsel for the Selling Stockholders is satisfactory to your
counsel, (B) a copy of each such opinion so relied upon is delivered
to you and is in form and substance satisfactory to your counsel, (C)
copies of the Custody Agreements and Powers of Attorney any of any
such other documents and instruments shall be delivered to you and
shall be in form and substance satisfactory to your counsel and (D)
Xxxxxxx & Xxxxx L.L.P. shall state in their opinion that they are
justified in relying on each such other opinion.
(f) You shall have received on the Closing Date an
opinion of Fulbright & Xxxxxxxx L.L.P., special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in subparagraphs (v), (vi), (viii) (but only as to the statements in
the Prospectus under "Description of Capital Stock" and
"Underwriters"), (x) and (xi) of paragraph (c) above.
With respect to subparagraph (xi) of paragraph (c) above,
Fulbright & Xxxxxxxx L.L.P. may state that their opinion and belief
are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof,
but are without independent check or verification except as specified
and that they relied as to matters of fact to a certain extent upon
the officers and other representatives of the Company.
(g) You shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to you,
from Ernst & Young L.L.P., independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
-13-
15
(h) The "lock-up" agreements between you and certain
stockholders, officers and directors of the Company relating to sales
of shares of common stock of the Company or any securities convertible
into or exercisable or exchangeable for such common stock, delivered
to you on or before the date hereof, shall be in full force and effect
on the Closing Date.
(i) The Company shall have complied with the provisions
of Article VII(a) hereof with respect to the furnishing of
Prospectuses on the business day next succeeding the date of this
Agreement, in such quantities as you reasonably request.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares and other matters related to the issuance of the Additional Shares.
VII.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish to you, without charge, three signed
copies of the Registration Statement (including exhibits thereto) and
for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request and, in the case
of the Prospectus, to furnish copies of the Prospectus in New York
City, prior to 5:00 p.m., on the business day following the date of
this Agreement, in such quantities as you reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and to file no such proposed
amendment or supplement to which you reasonably object.
(c) If, during such period after the first date of the
public offering of the Shares as in the opinion of your counsel the
Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of your counsel, it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare, file with the
-14-
16
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request, to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and to
pay all filing fees in connection with any review of the offering of
the Shares by the National Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earnings statement
covering the twelve-month period ending December 31, 1997 that
satisfies the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing
any Blue Sky or legal investment memorandum in connection with the
offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer
and sale under state securities laws as provided in Article VII(d)
hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) all filing fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification
of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all fees and expenses in connection with
the preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and
-15-
17
expenses incident to listing the Shares on the New York Stock Exchange
and other national securities exchanges and foreign stock exchanges,
if any, (vi) the cost of printing certificates representing the
Shares, (vii) the costs and charges of any transfer agent, registrar
or depositary, (viii) the costs and expenses of the Company relating
to investor presentations on any "road show" undertaken in connection
with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of
the Company, travel and lodging expense of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (ix) all
other reasonable costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not
otherwise made in this Article VII. It is understood, however, that
except as provided in this Article VII, Article IX and the penultimate
paragraph of Article XI below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel,
stock transfer taxes payable on resale of any of the Shares by them
and any advertising expenses connected with any offers they may make.
VIII.
Each Selling Stockholder, severally and not jointly, agrees to pay or
cause to be paid (i) all taxes, if any, on the transfer and sale of the Shares
being sold by any such Selling Stockholder and (ii) to the extent not
previously paid by the Company, such Selling Stockholder's pro rata share
(determined by dividing the number of Shares sold by such Selling Stockholder
by the total number of Shares sold by all Sellers) of all costs and expenses
incident to the performance of the obligations of the Selling Stockholders
under this Agreement, including, but not limited to, all expenses incident to
the delivery of the Shares, the fees and expenses of counsel and accountants
for the Selling Stockholders and the Company, the costs and expenses of
incident to the preparation, printing and filing of the Registration Statement
(including all exhibits thereto) and the Prospectus and any amendments or
supplements thereto, the expenses of qualifying the Shares under the securities
or Blue Sky laws of various jurisdictions, all fees payable in connection with
any review of the offering of the Shares by the National Association of
Securities Dealers, Inc., and the cost of furnishing to the Underwriters the
required copies of the Registration Statement and Prospectus and any amendments
or supplements thereto.
IX.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred
-16-
18
by any Underwriter or any such controlling person in connection with defending
or investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein. This indemnity agreement
with respect to any preliminary prospectus shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses, claims, damages
or liabilities purchased Shares, or any person controlling such Underwriter, if
a copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if such is required by law, at
or prior to the written confirmation of the sale of Shares to such person, and
if the Prospectus (as so amended or supplemented) would have corrected the
defect giving to rise to such loss, claim, damage, liability or expense.
The Company also agrees to indemnify and hold harmless Xxxxxx Xxxxxxx
& Co. Incorporated ("Xxxxxx Xxxxxxx") and each person, if any, who controls
Xxxxxx Xxxxxxx within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments incurred as a result of Xxxxxx Xxxxxxx'x
participation as a "qualified independent underwriter" within the meaning of
Rule 2720 of the National Association of Securities Dealers' Conduct Rules in
connection with the offering of the Shares, except for any losses, claims,
damages, liabilities and judgments resulting from Xxxxxx Xxxxxxx'x, or such
controlling person's, willful misconduct.
Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter, and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Selling Stockholder
furnished in writing by or on behalf of such Selling Stockholder expressly for
use in the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto. This indemnity
-17-
19
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if such is
required by law, at or prior to the written confirmation of the sale of Shares
to such person, and if the Prospectus (as so amended or supplemented) would
have corrected the defect giving to rise to such loss, claim, damage, liability
or expense.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Selling Stockholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or any Selling Stockholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (a) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (b) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, (b) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section and (c) the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Selling Stockholders and all persons, if any, who controls any Selling
Stockholder within the meaning of either such Section, and that all such fees
and
-18-
20
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of Underwriters,
such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated.
In the case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated in
writing by the Company. In the case of any such separate firm for the Selling
Stockholders, such firm shall be designated in writing by the persons named as
attorneys-in-fact for the Selling Stockholders under the Powers of Attorney.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (a) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (b) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding. Notwithstanding anything contained herein to the contrary, if
indemnity may be sought pursuant to this Article IX in respect of such action
or proceeding, then in addition to such separate firm for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate firm (in addition to any local counsel)
for Xxxxxx Xxxxxxx in its capacity as a "qualified independent underwriter" and
all persons, if any, who control Xxxxxx Xxxxxxx within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act.
If the indemnification provided for in the first, second or third
paragraph of this Article IX is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (a) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Shares or (b) if the allocation provided by clause (a) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but also the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Sellers on the one hand and the Underwriters on the other hand in
connection
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with the offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by each Seller and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares. The relative fault of the Sellers on the one
hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to the information supplied by the Sellers or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Article IX
are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
The Sellers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Article IX 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 Article IX, 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 that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no Selling Stockholder shall be
required to contribute any amount in excess of the total price at which the
Shares to be sold by such Selling Stockholder were offered to the public. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Article IX are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
The indemnity and contribution provisions contained in this Article IX
and the representations and warranties of the Company and the Selling
Stockholders contained in this Agreement shall remain operative and in full
force and effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, any Selling Stockholder or any person controlling any
Stockholder, or the Company, its officers or directors or any person
controlling the Company and (c) acceptance of and payment for any of the
Shares.
The parties hereto agree that the only information furnished by any
Selling Stockholder to the Company expressly for use in any preliminary
prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, is the information set forth in the "Questionnaire for
Selling Stockholders" executed by
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such Selling Stockholder, a copy of which has been previously provided to
counsel for the Underwriters.
X.
This Agreement shall be subject to termination by notice given by you
to the Company, if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities
Dealers National Market System, (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment,
is material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (a)(iv), such event singly or together with any other
such event makes it, in your judgment, impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus.
XI.
This Agreement shall become effective upon the later of (a) execution
and delivery hereof by the parties hereto and (b) release of notification of
the effectiveness of the Registration Statement by the Commission.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule II bears to
the aggregate number of Firm Shares set forth opposite the names of all such
nondefaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the number of Shares that any Underwriter has agreed to purchase pursuant to
Article III be increased pursuant to this Article XI by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date or the Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase Shares
and the aggregate number of Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Shares to be purchased on such
date, and arrangements satisfactory to you and the Company for the purchase of
such Shares are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Stockholders. In any such case either
you or the relevant Sellers shall have the right to postpone the Closing Date
or the Option
-21-
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Closing Date, as the case may be, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
This Agreement may be signed in two or more counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
ADMINISTAFF, INC.
By
-----------------------------------
Name:
-------------------------------
Title:
------------------------------
The Selling Stockholders named in
Schedule I hereto, acting severally
By
-----------------------------------
Name:
-------------------------------
Attorney-In-Fact
Accepted ________________, 1997
XXXXXX XXXXXXX & CO.
INCORPORATED
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
Acting severally on behalf of themselves
and the several Underwriters
name in Schedule II hereto.
By Xxxxxx Xxxxxxx & Co. Incorporated
By
------------------------------------
Name:
--------------------------------
Title:
-------------------------------
-23-
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Schedule I
Selling Stockholders
===================================================================================================
Number of
Additional Shares
Selling Stockholder to be Sold
---------------------------------------------------------------------------------------------------
[NAMES OF SELLING STOCKHOLDERS]
---------------------------------------------------------------------------------------------------
Total Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450,000
===================================================================================================
-24-
26
Schedule II
Underwriters
==========================================================================================
Number of
Firm Shares
Underwriter to be Purchased
------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . . . .
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation . . . . . .
[NAMES OF OTHER UNDERWRITERS] . . . . . . . . . . . . . . . . .
------------------------------------------------------------------------------------------
Total Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 3,000,000
==========================================================================================
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