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EXHIBIT 1.1
THE ▇▇▇▇▇-▇'▇▇▇▇ COMPANY
4,400,000 Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
March , 1998
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UNDERWRITING AGREEMENT
March , 1998
SBC WARBURG DILLON READ INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
as Managing Underwriters
c/o SBC Warburg Dillon Read Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Pursuant to the terms of this Underwriting Agreement (the
"Agreement"), The ▇▇▇▇▇-▇'▇▇▇▇ Company, an Ohio corporation (the "Company"),
proposes to issue and sell, and the persons named in Schedule B annexed hereto
(the "Selling Shareholders") propose to sell, to the underwriters named in
Schedule A annexed hereto (the "Underwriters") an aggregate of
shares (the "Firm Shares") of Common Stock, $0.01 par value (the "Common
Stock"), of the Company, of which 3,200,000 shares are to be issued and sold by
the Company and an aggregate of 1,200,000 shares are to be sold by the Selling
Shareholders.
In addition, solely for the purpose of covering
overallotments, certain of the Selling Shareholders (the "Overallotment
Shareholders" as indicated on Schedule C annexed hereto) propose to issue and
sell to the Underwriters, at the Underwriters' option, up to an additional
660,000 shares of Common Stock (the "Additional Shares"). The Firm Shares and
the Additional Shares are hereinafter collectively sometimes referred to as the
"Shares." The Shares are described in the Prospectus which is referred to
below.
The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the "Act"), with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (333- ),
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called
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a "Preliminary Prospectus") relating to the Shares. Except where the context
otherwise requires, the registration statement as in effect at the time of
execution of this Agreement or, if the registration statement is not yet
effective, as amended when it becomes effective, including all documents filed
as a part thereof and including any registration statement filed pursuant to
Rule 462(b) under the Act increasing the size of the offering registered under
the Act and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Act and deemed to
be part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Act, is herein called the "Registration Statement," and the
prospectus, in the form filed by the Company with the Commission pursuant to
Rule 424(b) under the Act or, if no such filing is required, in the form of
final prospectus included in the Registration Statement at the time it became
effective, is herein called the "Prospectus."
The Company, the Selling Shareholders and the Underwriters
agree as follows:
1. Sale and Purchase. On the basis of the
representations and warranties and the other terms and conditions herein set
forth, each of the Company and the Selling Shareholders, severally and not
jointly, agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company
and the Selling Shareholders the respective number of Firm Shares (subject to
such adjustment as you may determine to avoid fractional shares) which bears
the same proportion to the number of Firm Shares to be sold by the Company or
by such Selling Shareholders, as the case may be, as the number of Firm Shares
set forth opposite the name of such Underwriter on Schedule A annexed hereto
bears to the total number of Firm Shares to be sold by the Company and the
Selling Shareholders, in each case at a purchase price of $ per Share.
The Company and each Selling Shareholder is advised by you that the
Underwriters intend (i) to make a public offering of their respective portions
of the Firm Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the Firm
Shares upon the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, on the basis of the representations and
warranties and the other terms and conditions herein set forth,
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the Overallotment Shareholders, severally and not jointly, hereby grant to the
several Underwriters the option to purchase, and the Underwriters shall have
the right to purchase, severally and not jointly, from the Overallotment
Shareholders, ratably in accordance with the number of Firm Shares to be
purchased by each of them (subject to such adjustment as you shall determine to
avoid fractional shares), all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the
Underwriters to the Company and the Selling Shareholders for the Firm Shares.
This option may be exercised at any time (but not more than once) on or before
the thirtieth day following the date hereof, by written notice from SBC Warburg
Dillon Read Inc. ("SBCWDR") to the Company and the Overallotment Shareholders.
Such notice shall set forth the aggregate number of Additional Shares as to
which the option is being exercised, and the date and time when the Additional
Shares are to be delivered (any such date and time being herein referred to as
an "additional time of purchase"); provided, however, that no additional time
of purchase shall occur earlier than the time of purchase (as defined below)
nor earlier than the second business day(1) after the date on which the option
shall have been exercised nor later than the tenth business day after the date
on which the option shall have been exercised. The number of Additional Shares
to be sold to each Underwriter at an additional time of purchase shall be the
number which bears the same proportion to the aggregate number of Additional
Shares being purchased at such additional time of purchase as the number of
Firm Shares set forth opposite the name of such Underwriter on Schedule A
annexed hereto bears to the total number of Firm Shares (subject, in each case,
to such adjustment as you may determine to eliminate fractional shares).
The Selling Shareholders have entered into a combined Custody
Agreement and Power of Attorney dated , 1998 (the "Custody Agreement/Power of
Attorney"), among such Selling Shareholder, the Fifth Third Bank (as
"Custodian") and ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the
"Representatives of the Selling Shareholders"), which shall be satisfactory to
counsel for the Underwriters, pursuant to which each of the Representatives of
the Selling Shareholders is
---------------------------
(1) As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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authorized, on behalf of the Selling Shareholders, to execute any documents
necessary or desirable in connection with the sale of the Shares to be sold
hereunder by the Selling Shareholders (including this Agreement), to make
delivery of the certificates for such Shares, to receive the proceeds of the
sale of such Shares, to give receipts for such proceeds, to pay therefrom the
expenses to be borne by the Selling Shareholders in connection with the sale
and public offering of the Shares, to distribute the balance of such proceeds
to the Selling Shareholders, to receive notices on behalf of the Selling
Shareholders and to take such other action as may be necessary or desirable in
connection with the transactions contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price
for the Firm Shares shall be made to the Company and the Representatives of the
Selling Shareholders on behalf of the Selling Shareholders by wire transfer in
immediately available funds to accounts designated in writing by the Company
and the Representatives of the Selling Shareholders, as the case may be,
against delivery of the certificates for the Firm Shares to you for the
respective accounts of the Underwriters. Such payment and delivery shall be
made at 9:00 A.M., New York City time, on , 1998 (unless another
time shall be agreed to by you, the Company and the Representatives of the
Selling Shareholders or unless postponed in accordance with the provisions of
Section 10 hereof). The time at which such payment and delivery are actually
made is hereinafter sometimes called the "time of purchase." Certificates for
the Firm Shares shall be delivered to you in definitive form in such names and
in such denominations as you shall specify on the second business day preceding
the time of purchase. For the purpose of expediting the checking of the
certificates for the Firm Shares by you, the Company and the Selling
Shareholders agree to make such certificates available to you for such purpose
at least one full business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall
be made to the Overallotment Shareholders as directed by the Representatives of
the Selling Shareholders at the additional time of purchase in the same manner
and at the same office as the payment for the Firm Shares. Certificates for
the Additional Shares shall be delivered to you in definitive form in such
names and in such denominations as you shall specify on the second business day
preceding the additional time of purchase. For the purpose of expediting the
checking of the certificates for the Additional Shares by you, the
Overallotment Shareholders agree to make such certificates available to you for
such purpose at least one full business day preceding the additional time of
purchase.
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The Selling Shareholders will pay all applicable state
transfer taxes, if any, involved in the transfer to the several Underwriters of
the Shares to be purchased by them from the Selling Shareholders.
3. Representations and Warranties of the Company. The
Company represents and warrants to each of the Underwriters that:
(a) 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 under the Act complied when so
filed in all material respects with the Act, and at the time the
Registration Statement becomes or became effective, including at the
time of effectiveness of any post-effective amendment, and at all
times subsequent thereto up to the latest of the time of purchase, the
additional time of purchase and the termination of the offering of the
Shares, (i) the Registration Statement and the Prospectus and any
amendments or supplements thereto complied and will comply in all
material respects with the provisions of the Act, (ii) the
Registration Statement at all such times did not and will not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (iii) the Prospectus at all such times did
not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no warranty or representation with
respect to any statement contained in the Registration Statement or
the Prospectus in reliance upon and in conformity with information
concerning the Underwriters or the Selling Shareholders and furnished
in writing by or on behalf of any Underwriter through you to the
Company or by any Selling Shareholder expressly for use in the
Registration Statement or the Prospectus and, with respect to
information furnished through you, set forth in the section of the
Registration Statement and the Prospectus entitled "Underwriting".
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(b) as of the date of this Agreement, the Company has an
authorized capitalization as set forth under the heading entitled
"December 31, 1998 Actual" in the section of the Registration
Statement and the Prospectus entitled "Capitalization" and, as of the
time of purchase and the additional time of purchase, as the case may
be, the Company shall have an authorized capitalization as set forth
under the heading entitled "December 31, 1998, As Adjusted" in the
section of the Registration Statement and the Prospectus entitled
"Capitalization"; all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable and are free of statutory and
contractual preemptive rights;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Ohio, with full power and authority to own its properties and
conduct its business as described in the Registration Statement and
the Prospectus, to execute and deliver this Agreement and to issue,
sell and deliver the Shares as herein contemplated;
(d) all of the issued and outstanding shares of the
capital stock of each of the Company's subsidiaries (whether a
subsidiary as of the date hereof or as of the time of purchase, the
"subsidiaries") have been duly and validly authorized and issued and
are fully paid and nonassessable and, except as set forth in the
Registration Statement, are owned by the Company, directly or
indirectly, free and clear of any pledge, lien, encumbrance, security
interest, preemptive rights or other claim; there are no outstanding
rights, subscriptions, warrants, calls, preemptive rights, options or
other agreements of any kind with respect to the capital stock of the
Company or of the subsidiaries; the Company does not own, directly or
indirectly, shares of capital stock of or other equity interest in any
corporation or other entity other than the subsidiaries;
(e) each of the subsidiaries has been duly organized and
is validly existing and in good standing, to the extent that the
concept of good standing is recognized under the jurisdiction under
which such subsidiary is organized, under the laws of its respective
jurisdiction of organization with full legal power and authority to
own its respective properties and conduct its respective businesses;
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(f) each of the Company and each of its subsidiaries is
duly qualified or licensed by and is in good standing, to the extent
that the concept of good standing is recognized under the jurisdiction
under which such subsidiary is organized, in each jurisdiction in
which it owns or leases property or conducts its businesses, and in
each other jurisdiction, except where the failure to be so qualified
or licensed is not reasonably likely to have a material adverse effect
on the properties, assets, operations, liabilities, prospects, results
of operations, business or condition (financial or otherwise) of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect"); each of the Company and each of its subsidiaries is in
compliance in all material respects with the laws, orders, rules,
regulations and directives issued or administered by each such
jurisdiction, except where the failure to be in compliance would not
have a Material Adverse Effect;
(g) except as described in the Registration Statement and
the Prospectus, neither the Company nor any of its subsidiaries is in
breach of, or in default under (nor has any event occurred that with
notice, lapse of time, or both would constitute a breach of, or
default under), its respective charter or by-laws or in the
performance or observance of any obligation, agreement, covenant or
condition contained in any license, indenture, mortgage, lease, deed
of trust, bank loan or credit agreement, material supply agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them or their respective
properties is bound or affected, where the breach or default would
have a Material Adverse Effect, and the execution, delivery and
performance of this Agreement, the issuance of the Shares to be sold
by the Company and the consummation of the transactions contemplated
hereby will not conflict with, or result in any breach of or
constitute a default under (nor constitute any event that with notice,
lapse of time, or both would constitute a breach of, or default
under), any provision of the charter or by-laws of the Company or any
of its subsidiaries or under any provision of any license, indenture,
mortgage, lease, deed of trust, bank loan or credit agreement,
material supply agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which any of
them or their respective properties may be bound or affected, or under
any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of its
subsidiaries;
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(h) neither the Company nor any of its subsidiaries is a
party to any litigation, and there is no such litigation pending or
(to the best knowledge of the Company or any of its subsidiaries)
threatened or contemplated, which seeks to enjoin or restrain the
execution, delivery and performance of this Agreement, the incurrence
of the obligations set forth herein or the consummation of the
transactions contemplated hereby;
(i) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement
of the Company enforceable in accordance with its terms; the Board of
Directors of the Company or a committee thereof duly authorized by the
Board of Directors of the Company has duly adopted resolutions
authorizing the issuance and sale of the Shares by the Company; the
Firm Shares to be sold by the Company, when issued and delivered to
and paid for by the Underwriters as contemplated hereby, will be duly
and validly authorized and issued and fully paid and nonassessable,
and free and clear of any pledge, lien, charge, encumbrance, security
interest, preemptive right or other claim;
(j) the capital stock of the Company, including the
Shares, conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus and the
certificates for the Shares are in due and proper form and the holders
of the Shares, after making payment therefor, will not be subject to
personal liability by reason of being such holders;
(k) no approval, authorization, consent or order of or
filing with any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares as contemplated
hereby other than registration of the Shares under the Act, clearance
of the offering of such Shares with the National Association of
Securities Dealers, Inc. (the "NASD") and any necessary qualification
under the securities or blue sky laws of the various jurisdictions in
which the Shares are being offered by the Underwriters;
(l) except for rights which have been waived in
connection with the offering contemplated by this Agreement,
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no person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of
capital stock of the Company upon the issue and sale of the Shares to
the Underwriters hereunder; no person has any preemptive rights,
rights of first refusal or other rights to purchase any of the Shares;
no person, other than certain of the Selling Shareholders, has any
right to have securities included in or registered pursuant to the
Registration Statement;
(m) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, Deloitte and Touche LLP and
KPMG Peat Marwick LLP, whose reports on the consolidated financial
statements of the Company are filed with the Commission as part of the
Registration Statement and the Prospectus, are independent certified
public accountants as required by the Act;
(n) each of the Company and its subsidiaries has such
permits, licenses, franchises, authorizations, consents and approvals
("permits") and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule, including,
without limitation, under any Environmental Laws (as defined below),
and has obtained all necessary authorizations, consents and approvals
from other persons as are necessary to own, lease and operate its
respective properties and to conduct its respective business, except
where the lack of such permits, the failure to make such filings and
the failure to obtain such authorization, consents and approvals would
not have a Material Adverse Effect; neither the Company nor any of its
subsidiaries is in violation of, or in default under, any such permit
or any federal, state, local or foreign law, regulation or rule or any
decree, order or judgment applicable to the Company or any of its
subsidiaries, which violation or default, singly or in the aggregate
with all other such violations and defaults, would be reasonably
likely to have a Material Adverse Effect; no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination of any such permit, or results in any other material
impairment of the rights of the holder of any such permit, which would
be reasonably likely to result in a Material Adverse Effect; and,
except as described in the Registration Statement and the Prospectus,
such permits contain no restrictions that would result in a Material
Adverse Effect;
(o) all legal or governmental proceedings, contracts or
documents of a character required to be described in
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the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement have been so described or filed
as required;
(p) except as described in the Registration Statement and
the Prospectus, there is no action, suit or proceeding pending or, to
the Company's knowledge, threatened against the Company or any of its
subsidiaries or any of their respective properties or affiliates, at
law or in equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency that, singly or in the aggregate with all other such actions,
suits and proceedings, would be reasonably likely to result in a
judgment or judgments having a Material Adverse Effect;
(q) the audited and unaudited financial statements
included in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company as of the
dates indicated and the consolidated results of operations and cash
flows of the Company for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved; and the assumptions used in the preparation of the financial
information and the related notes thereto included in the Registration
Statement and the Prospectus are reasonably and in good faith believed
by the Company to be reasonable and the adjustments used therein are
reasonably and in good faith believed by the Company to be appropriate
to give effect to the transactions or circumstances referred to
therein;
(r) the Company's internal accounting controls and
procedures are sufficient to provide reasonable assurance that the
Company's transactions are executed and recorded in accordance with
the requirements of the FCPA;
(s) subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus, and
except as may be otherwise stated in or contemplated by the
Registration Statement or Prospectus, there has not been (A) any
material adverse change, financial or otherwise, in the business,
properties, assets, operations, prospects, regulatory environment,
results of operations or condition (financial or otherwise), present
or prospective, of the Company and its subsidiaries taken as a whole,
(B) any transaction which is material to the
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business, properties, assets, operations, prospects, regulatory
environment, results of operations or condition (financial or
otherwise), present or prospective, of the Company and its
subsidiaries taken as a whole, contemplated or entered into by the
Company or any of its subsidiaries or (C) any obligation, contingent
or otherwise, directly or indirectly incurred by the Company or any of
its subsidiaries which is material to the business, properties,
assets, operations, prospects, regulatory environment, results of
operations or condition (financial or otherwise), present or
prospective, of the Company and its subsidiaries taken as a whole;
(t) neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which violation in each case is
reasonably likely to result in any Material Adverse Effect;
(u) in the ordinary course of its business, the Company
conducts reviews of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including without limitation any capital expenditure
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties); on the basis of such review, the Company reasonably
has concluded that such associated costs and liabilities, singly or in
the aggregate, would not have a Material Adverse Effect;
(v) neither the Company nor any of its subsidiaries, nor
any employee of the Company or any of its subsidiaries, has made any
payment of funds of the Company or any of its subsidiaries prohibited
by law, and no funds of the Company or any of its subsidiaries have
been set aside to be used for any payment prohibited by law where such
payment is reasonably likely to result in a Material Adverse Effect;
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(w) the Company is not an "enemy" or an "ally of the
enemy" within the meaning of Section 2 of the U.S. Trading with the
Enemy Act, as amended; and the Company is not in violation of, and the
Company's use of the proceeds from the sale of the Shares as
contemplated hereby will not violate, the U.S. Trading with the Enemy
Act, as amended, or any executive orders, proclamations or regulations
issued pursuant thereto, including, without limitation, regulations
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (31 C.F.R., Subtitle B, Chapter V as
amended);
(x) neither the Company nor any of its subsidiaries does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075 of the Florida
Statutes;
(y) the Company and its subsidiaries have good title to
all properties and assets owned or leased by them, in each case,
except as set forth in the Registration Statement and the Prospectus,
free and clear of all pledges, liens, encumbrances, security
interests, charges, mortgages and defects except where failure of good
title or the existence of a lien, encumbrance, security, interest,
charge, mortgage or deficit would not have a Material Adverse Effect;
(z) each issuance of securities referred to in Item 15 of
the Registration Statement (i) was effected in reliance upon a valid
exemption from the registration requirements of the Act and (ii) was
effected in compliance with the securities or blue sky laws of each
jurisdiction in which such securities were offered or sold;
(aa) the Company and each of its subsidiaries have filed
all federal or state income and franchise tax returns required to be
filed and have paid all taxes shown thereon as due, and there is no
material tax deficiency which has been or might be asserted against
the Company or any of its subsidiaries; all material tax liabilities
of the Company and its subsidiaries are adequately provided for on the
books of the Company and its subsidiaries;
(bb) neither the Company nor any of its affiliates has
incurred any liability for any finder's fees or similar payments in
connection with the transactions herein contemplated;
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(cc) the Company has obtained the agreement of each of its
directors and executive officers and ________ (other than, with
respect to Shares to be sold hereunder, the Selling Shareholders) not
to sell, transfer, contract to sell, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common
Stock or securities convertible into or exchangeable for Common Stock
or warrants or other rights to purchase Common Stock for a period of
90 days after the date of the Prospectus without the prior written
consent of SBCWDR;
(dd) none of the Company or its subsidiaries is, or after
application of the proceeds as described under the caption "Use of
Proceeds" in the Registration Statement and the Prospectus, will be an
"investment company" or an affiliated person of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder, or is subject to regulation
under such Act; and
(ee) except as disclosed in the Registration Statement and
Prospectus, the Company and its subsidiaries own or possess the right
to use all patents, trademarks (including the Company's name, together
with its logo), trademark registrations, service marks, service ▇▇▇▇
registrations, trade names, copyrights, licenses, inventions, trade
secrets, know-how and rights described in the Prospectus as being
owned by them or any of them or material to the conduct of the
business of the Company and its subsidiaries on a consolidated basis,
and the Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and its
subsidiaries with respect to the foregoing. Except as described in
the Prospectus, no claim has been made against or notice given to the
Company alleging the infringement or other violation by the Company or
any patent, trademark, service ▇▇▇▇, trade name, copyright, trade
secret, license or other intellectual property right or franchise
right of any person.
4. Representations and Warranties of the Selling
Shareholders. Each Selling Shareholder, severally and not jointly, further
represents and warrants to each Underwriter that:
(a) such Selling Shareholder now is, and at the time of
delivery of such Shares will be, the lawful owner of
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the number of Shares to be sold by such Selling Shareholder pursuant
to this Agreement and has and, at the time of delivery thereof, will
have valid and marketable title to such Shares, and upon delivery of
and payment for such Shares, the Underwriters will acquire valid and
marketable title to such Shares free and clear of any claim, lien,
encumbrance, security interest, community property right, restriction
on transfer or other defect in title;
(b) such Selling Shareholder has and at the time of
delivery of such Shares will have full legal right, power and
capacity, and any approval required by law (other than those imposed
by the Act and the securities or blue sky laws of the various
jurisdictions in which the Shares are to be offered by the
Underwriters), to sell, assign, transfer and deliver such Shares in
the manner provided in this Agreement;
(c) this Agreement and the Custody Agreement/Power of
Attorney have been duly executed and delivered by or on behalf of such
Selling Shareholder and each is a legal, valid and binding agreement
of such Selling Shareholder enforceable in accordance with its terms;
(d) each Preliminary Prospectus filed as a part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and when the
Registration Statement becomes or became effective and at all times
subsequent thereto through the latest of the time of purchase,
additional time of purchase and the termination of the offering of
the Shares, the Registration Statement and the Prospectus, and any
supplements or amendments thereto, as they relate to such Selling
Shareholder did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(e) such Selling Shareholder has duly and irrevocably
authorized the Representatives of the Selling Shareholders, on behalf
of such Selling Shareholder, to execute and deliver this Agreement and
any other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the Shares to be sold
by such Selling Shareholder and receive payment therefor pursuant
hereto;
16
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(f) the sale of such Selling Shareholder's Shares
pursuant to this Agreement is not prompted by any information
concerning the Company known by such Selling Shareholder which is not
set forth in the Prospectus; and
(g) the consummation of the transactions contemplated
hereby and by the Custody Agreement/Power of Attorney and the
fulfillment of the terms hereof and thereof will not constitute a
breach or violation of or default under any trust, indenture,
agreement or other instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder is bound.
5. Certain Covenants of the Company. The Company hereby
agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such jurisdictions as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares, provided that the Company
shall not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such
jurisdictions in which it is not now subject to service of process
(except service of process with respect to the offering and sale of
the Shares); and to promptly advise you of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to
make every reasonable effort to obtain the withdrawal of any order or
suspension as soon as practicable;
(b) to make available to you in New York City, as soon as
practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act;
(c) to advise you promptly and (if requested by you) to
confirm such advice in writing, (i) when the Registration Statement
has become effective and when any post-effective amendment thereto
becomes effective and
17
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(ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner under such Rule);
(d) to advise you promptly (and to confirm such advice in
writing) of the receipt of any comments from the Commission or any
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or, to the extent the Company has received
notice thereof, the issuance by the Commission of a stop order
suspending the effectiveness of the Registration Statement or the
threatening or initiation of any proceedings for that purpose or the
suspension of the qualification of the Shares for offering or sale in
any jurisdiction, or the threatening or initiation of any proceeding
for that purpose; to make every reasonable effort to prevent the
issuance of any stop order or any order preventing or suspending the
use of any Preliminary Prospectus or suspending such qualification
and, if any stop order or any order suspending the use of any
Preliminary Prospectus or suspending such qualification is issued, to
make every reasonable effort to obtain the lifting or removal thereof
as soon as possible; to advise you promptly of any proposal to amend
or supplement the Registration Statement or Prospectus and to file no
such amendment or supplement to which you shall object in writing;
(e) to furnish to you and, upon request to each of the
other Underwriters, for a period of five years from the date of this
Agreement (i) copies of all reports or other communications that the
Company shall send to its shareholders or from time to time shall
publish or publicly disseminate; (ii) copies of all annual, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar form as may be designated by the
Commission, and any other document filed by the Company pursuant to
Section 12, 13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); and (iii) such other information as you
may reasonably request regarding the Company or the subsidiaries
listed on Exhibit A hereto (the "Subsidiaries");
(f) as soon as practicable and for the time period
specified by Rule 158 under the Act, to make generally available to
its shareholders, and to deliver to you, an earnings statement of the
Company that will satisfy the
18
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provisions of Section 11(a) of the Act and Rule 158 under the Act;
(g) to advise the Underwriters promptly of the happening
of any event known to the Company within the time during which a
prospectus relating to the Shares is required to be delivered under
the Act which, in the judgment of the Company, would require the
making of any change in the Prospectus then being used, or in the
information incorporated therein by reference, so that the Prospectus
would not include an 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 are made, not misleading,
and, during such time, to prepare and furnish, at the Company's
expense, to the Underwriters promptly such amendments or supplements
to such Prospectus as may be necessary to reflect any such change and
to furnish you a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission;
(h) to furnish to you four (4) signed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto) and sufficient
conformed copies of the foregoing (other than exhibits) for
distribution of a copy to each of the Underwriters;
(i) to furnish to you as early as practicable prior to
the time of purchase and the additional time of purchase, as the case
may be, but not later than two business days prior thereto, a copy of
the latest available unaudited interim consolidated financial
statements, if any, of the Company and the Subsidiaries which have
been read by the Company's independent certified public accountants,
as stated in their letter to be furnished pursuant to Section 8(c) of
this Agreement;
(j) to apply the net proceeds from the sale of the Shares
sold by the Company in the manner set forth under the caption "Use of
Proceeds" in the Prospectus;
(k) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (g) above, a copy of any
document proposed to be filed pursuant to Sections 13, 14 or 15(d) of
the Exchange Act;
19
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(l) not to sell, contract to sell, grant any option to
sell, transfer or otherwise dispose of, directly or indirectly, any
shares of Common Stock or securities convertible into or exchangeable
for Common Stock or warrants or other rights to purchase Common Stock
or permit the registration under the Act of any shares of Common
Stock, except for the registration of the Shares and the sales to the
Underwriters pursuant to this Agreement and except for issuances of
Common Stock upon the exercise of outstanding options, warrants and
debentures, or in connection with acquisitions, for a period of 90
days after the date hereof, without the prior written consent of
SBCWDR, and except for grants of additional options under the
Company's 1996 Stock Option Plan (which options are not exercisable
before the end of such 90 day period);
(m) to use its best efforts to cause the Shares to be
sold by the Company to be listed on the Nasdaq National Market;
(n) to refrain from investing the proceeds from the sale
of the Shares to be sold by the Company in a manner to cause the
Company or any of the Subsidiaries to become an "investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(o) whether or not the transactions contemplated hereby
are consummated or this Agreement otherwise becomes effective or is
terminated, to pay all expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the
Underwriters except as set forth under Section 7 hereof or (iii) and
(iv) below) in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus,
and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the issuance,
sale and delivery of the Shares by the Company and the Selling
Shareholder, (iii) the word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements,
any Statements of Information and Powers of Attorney and the
reproduction and/or printing and furnishing of copies of each thereof
to the Underwriters and to dealers (including costs of mailing and
shipment), (iv) the qualification of the Shares for offering and sale
under state or blue sky laws of the various jurisdictions in which the
Shares are offered by the Underwriters (including the
20
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legal fees and filing fees and other disbursements of counsel to the
Underwriters, not to exceed $20,000.00) and the printing and
furnishing of copies of any blue sky surveys to the Underwriters and
to dealers, (v) any listing of the Shares to be sold by the Company on
the Nasdaq National Market, (vi) the filing fees relating to the
review of the public offering of the Shares by the NASD and (vii) the
performance of the Company's and the Selling Shareholders' other
obligations hereunder.
6. Certain Covenants of the Selling Shareholders. Each
of the Selling Shareholders agrees with each Underwriter that, for a period of
90 days after the date hereof, such Selling Shareholder will not sell, contract
to sell, grant any option to sell, transfer or otherwise dispose of, directly
or indirectly, any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to purchase Common
Stock without the prior written consent of SBCWDR.
7. Reimbursement of Underwriters' Expenses. If the Firm
Shares or the Additional Shares are not delivered for any reason, other than
the failure of the Underwriters to purchase the Firm Shares or the Additional
Shares as provided herein (unless such failure is permitted under the
provisions of Section 8 of this Agreement), the Company will reimburse the
Underwriters for all of their out-of-pocket expenses, including the fees and
disbursements of their counsel.
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Shareholders on the date hereof and at the time of purchase (and, to the extent
noted below, the several obligations of the Underwriters at any additional time
of purchase are subject to the accuracy of the representations and warranties
on the part of the Company and the Selling Shareholders on the date hereof and
at the time of purchase (unless previously waived) and at such additional time
of purchase, as the case may be), the performance by the Company and the
Selling Shareholders of their obligations hereunder and to the following
conditions:
(a) The Company shall furnish to you at the time of
purchase and at such additional time of purchase, as the case may be,
an opinion of ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company,
addressed to the Underwriters and dated the time of purchase or
additional time of purchase,
21
-20-
as the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Ohio, with full corporate power and
authority to own its properties and conduct its business as
described in the Registration Statement and the Prospectus, to
execute and deliver this Agreement and to issue, sell and
deliver the Shares to be sold by the Company as herein
contemplated;
(ii) each of the Subsidiaries has been duly
incorporated and is validly existing and each domestic
Subsidiary is in good standing under the laws of its
respective jurisdiction of organization, and each domestic
Subsidiary has full legal power and authority to own its
respective properties and to conduct its respective business
as described in the Registration Statement and the Prospectus;
(iii) each of the Company and the Subsidiaries is
duly qualified or licensed to do business and is in good
standing as a foreign corporation in each U.S. jurisdiction in
which it owns or leases real property or conducts its business
except where the failure to be so qualified or licensed would
not have a Material Adverse Effect;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company; the Board of Directors
of the Company or a committee thereof duly authorized by the
Board of Directors of the Company has duly adopted resolutions
authorizing the issuance and sale of the Shares by the
Company;
(v) the Company has an authorized capitalization
as set forth in the Registration Statement and the Prospectus;
the 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, and are fully
paid, nonassessable and free of statutory and contractual
preemptive rights;
22
-21-
(vi) all of the issued and outstanding shares of
the capital stock of each of the Company's Subsidiaries set
forth in Exhibit A to this Agreement have been duly and
validly authorized and issued and are fully paid and
nonassessable and except as set forth in Exhibit A and subject
to governmental filings and recordation of documents of
transfer in the jurisdictions in which the foreign
Subsidiaries are incorporated, are owned, directly or
indirectly, by the Company free and clear of any pledge, lien,
encumbrance, security interest, preemptive rights or other
claim known to such counsel; to the best of such counsel's
knowledge, except as described in the Registration Statement
and the Prospectus or on Exhibit A there are no outstanding
rights, subscriptions, warrants, calls, options or other
agreements of any kind with respect to the capital stock of
the Company or any of the Subsidiaries; to the best of such
counsel's knowledge, the Company does not own, directly or
indirectly, shares of capital stock of or equity interest in
any corporation or other entity other than the Subsidiaries;
(vii) the capital stock of the Company, including
the Shares, conforms in all material respects to the
description thereof contained in the Registration Statement
and Prospectus;
(viii) the Shares to be sold by the Company have
been duly authorized and, upon payment and delivery in
accordance with this Agreement, will be validly issued, fully
paid and nonassessable; the holders of the Shares will not be
subject to personal liability by reason of being such holders;
(ix) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial and statistical data contained or incorporated by
reference therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act;
(x) the Registration Statement has become
effective under the Act and, to the best of such counsel's
knowledge, no stop order proceedings with respect thereto are
pending or threatened under the Act;
23
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(xi) no approval, authorization, consent or order
of or filing with any federal, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the issuance and sale of the
Shares by the Company as contemplated hereby other than
registration of the Shares under the Act and the clearance of
the offering of such Shares with the NASD (except such counsel
need express no opinion as to any necessary qualification
under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters);
(xii) the execution, delivery and performance of
this Agreement by the Company, the issuance of the shares to
be sold by the Company and the consummation by the Company of
the transactions contemplated hereby do not and will not
conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice,
lapse of time, or both, would constitute a breach of or
default under), any provisions of the Amended and Restated
Articles of Incorporation or the Code of Regulations of the
Company or under any provision of any license, indenture,
mortgage, lease, deed of trust, bank loan or credit agreement,
material supply agreement or other agreement or instrument
known to such counsel to which the Company or any of the
Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected, or to the
knowledge of such counsel under any federal, state or local or
foreign law, regulation or rule or any decree, judgment or
order applicable to the Company or any of the Subsidiaries;
(xiii) to the best of such counsel's knowledge,
neither the Company nor any of the Subsidiaries is a party to
any litigation, and there is no such litigation pending or
threatened, which seeks to enjoin or restrain the execution,
delivery and performance of this Agreement, the incurrence of
the obligations set forth herein or the consummation of the
transactions contemplated hereby;
(xiv) to the best of such counsel's knowledge,
except as described in the Registration Statement and the
Prospectus, neither the Company nor any of the Subsidiaries is
in breach of, or in default under
24
-23-
(nor has any event occurred which with notice, lapse of time,
or both would constitute a breach of, or default under), any
license, indenture, mortgage, lease, deed of trust, bank loan
or credit agreement, material supply agreement or any other
agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected or under any
federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any
of the Subsidiaries where the breach, default or violation
could have a Material Adverse Effect;
(xv) to the best of such counsel's knowledge,
there are no contracts, licenses, agreements, leases or
documents of a character which are required to be filed as
exhibits to the Registration Statement or to be summarized or
described in the Prospectus which have not been so filed,
summarized or described;
(xvi) to the best of such counsel's knowledge,
there are no actions, suits or proceedings pending
or threatened against the Company or any of the Subsidiaries or
any of their respective properties, at law or in equity or
before or by any commission, board, body, authority or agency
which are required to be described in the Prospectus but are
not so described;
(xvii) except as described in the Registration
Statement and the Prospectus, there are no actions, suits or
proceedings of which such counsel has knowledge pending or
threatened against the Company or any of the Subsidiaries, or
any of their respective properties, at law or in equity, or
before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency
that individually or in the aggregate could result in a
judgment, decree or order having a Material Adverse Effect;
(xviii) to the best of such counsel's knowledge, no
person (other than certain of the Selling Shareholders) has
the right, contractual or otherwise, to cause the Company to
issue to it, or, except as waived, register pursuant to the
Act, any securities of the Company in consequence of the issue
and sale of the Shares to the Underwriters hereunder;
25
-24-
(xix) none of the Company or the Subsidiaries is,
or after application of the proceeds as described under the
caption "Use of Proceeds" in the Registration Statement and
the Prospectus, will be an "investment company" or an
affiliated person of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended, and the rules and
regulations thereunder;
(xx) the statements in the Registration Statement
and the Prospectus under the captions "Business - Government
Regulation," "-Environmental Matters," "-Legal Proceedings,"
"Patents, Trademarks and Copyrights," "Description of Capital
Stock" and "Shares Eligible for Future Sale," insofar as such
statements constitute summaries of legal matters, documents or
proceedings referred to therein, have been reviewed by such
counsel, are accurate in all material respects and fairly
present the information called for with respect to such legal
matters, documents or proceedings; and
(xxi) such counsel have participated in conferences
with officers and other representatives of the Company,
representatives of the independent public accountants of the
Company, representatives of the Selling Shareholders and
representatives of the Underwriters at which the contents of
the Registration Statement and Prospectus were discussed and,
although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or
Prospectus (except as and to the extent stated in
subparagraphs (v), (vii) and (xx) above), on the basis of the
foregoing (relying as to materiality to a large extent upon
the opinions of officers and other representatives of the
Company) nothing has come to the attention of such counsel
that causes them to believe that the Registration Statement or
any amendment thereto at the time such Registration Statement
or amendment became effective contained an untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such
supplement, and at all times up to and including
26
-25-
the time of purchase or additional time of purchase, as the
case may be, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express
no opinion with respect to the financial statements and
schedules and other financial and statistical data included in
the Registration Statement or Prospectus).
In rendering such opinions, such counsel may rely, as to
matters governed by the laws of jurisdictions other than the United
States, upon the opinions of foreign counsel to the Company and the
Subsidiaries, which counsel shall be reasonably acceptable to the
Underwriters. Such counsel may also rely as to matters of fact on
certificates of officers of the Company and of governmental officials,
in which case their opinion is to state that they are so doing and
that the Underwriters are justified in relying on such certificates.
Such counsel's opinion may state that where a matter is noted as being
"to the best of such counsel's knowledge," or equivalent words, that
such knowledge is limited to the conscious awareness of relevant
information by those lawyers in such counsel's organization who have
been actively involved in the matters contemplated by this Agreement.
(b) The Selling Shareholders shall furnish to you at the
time of purchase and at the additional time of purchase, as the case
may be, an opinion of counsel for the Selling Shareholders, addressed
to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with reproduced copies for each
of the other Underwriters, and in form and substance satisfactory to
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, stating that:
(i) this Agreement and the Custody
Agreement/Power of Attorney have been duly executed and
delivered by or on behalf of the Selling Shareholders; the
Custody Agreement/Power of Attorney is the legal, valid and
binding agreement of each of the Selling Shareholders
enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization,
27
-26-
moratorium or similar laws affecting creditors' rights
generally and general principles of equity;
(ii) to the best of such counsel's knowledge, each
of the Selling Shareholders has full legal right and power,
and has obtained any authorization or approval required by law
(other than those imposed by the Act and the securities or
blue sky laws of certain jurisdictions), to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Shareholder in the manner provided in this Agreement;
(iii) to the best of such counsel's knowledge,
delivery of certificates for the Shares by the Selling
Shareholders pursuant hereto will pass to each Underwriter
that is a "bona fide purchaser" (as defined in Section 1308.17
of the Ohio Revised Code) all of the rights of the Selling
Shareholders in such shares free and clear of any adverse
claim;
(iv) each of the Representatives of the Selling
Shareholders has been duly authorized by the Selling
Shareholders to execute and deliver on behalf of each such
Selling Shareholder this Agreement and any other document
necessary or desirable in connection with the transactions
contemplated hereby and to deliver the Shares to be sold by
such Selling Shareholder and receive payment therefor pursuant
hereto;
(v) to the best of such counsel's knowledge, the
consummation of the transactions contemplated hereby and by
the Custody Agreement/Power of Attorney and the fulfillment of
the terms hereof and thereof will not constitute a breach or
violation of or default under any trust, indenture, agreement
or other instrument to which each of the Selling Shareholders
is a party or by which the Selling Shareholder is bound;
(vi) to the best of such counsel's knowledge, no
approval, authorization, consent or order of or filing with
any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in
connection with the sale of the Shares to be sold by the
Selling Shareholders as contemplated hereby other than
registration of the Shares under the Act (except such counsel
need express no opinion as to any necessary qualification
28
-27-
under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the
Underwriters); and
(vii) to the best of such counsel's knowledge, the
statements in the Prospectus under the caption "Principal and
Selling Shareholders" insofar as such statements constitute a
summary of legal matters, documents or proceedings referred to
therein present fairly the information called for with respect
to such matters.
In rendering such opinion, such counsel may rely, as to matters
governed by the laws of jurisdictions other than the United States,
upon the opinions of foreign counsel to the Selling Shareholders,
which counsel shall be reasonably acceptable to the Underwriters.
Such counsel may also rely, as to matters of fact, on certificates of
the Selling Shareholders, in which case their opinion is to state that
they are so doing, and that the Underwriters are justified in relying
on such certificates. Such counsel's opinion may state that where a
matter is noted as being "to the best of such counsel's knowledge," or
equivalent words, that such knowledge is limited to the conscious
awareness of relevant information by those lawyers in such counsel's
organization who have been actively involved in the matters
contemplated by this Agreement.
(c) You shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP,
Deloitte and Touche LLP and KPMG Peat Marwick LLP, letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in
the forms heretofore approved by the Managing Underwriters.
(d) You shall have received at the time of purchase and
at the additional time of purchase, as the case may be, the favorable
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters,
dated the time of purchase or the additional time of purchase, as the
case may be, as to the matters referred to in subparagraphs (vii),
(ix) and (x) of paragraph (a) of this Section 8.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of
the Company, counsel for the Company,
29
-28-
representatives of the Selling Shareholders, representatives of the
independent public accountants of the Company and representatives of
the Underwriters at which the contents of the Registration Statement
and Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and Prospectus (except as to matters
referred to under subparagraph (vii) of paragraph (a) of this Section
8), on the basis of the foregoing (relying as to materiality to a
large extent upon the opinions of officers and other representatives
of the Company), no facts have come to the attention of such counsel
which lead them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment
became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus as of its date or any supplement thereto as of its date
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need
express no comment with respect to the financial statements and
schedules and other financial and statistical data included in the
Registration Statement or Prospectus).
(e) No amendment or supplement to the Registration
Statement or Prospectus shall be filed prior to the time the
Registration Statement becomes effective to which you object.
(f) The Registration Statement shall become effective at
or before 5:00 P.M., New York City time, on the date of this
Agreement, and if Rule 430A under the Act is used, the Prospectus
shall have been filed with the Commission in accordance with Rule
424(b) under the Act; provided, however, that the Company, the
Representatives of the Selling Shareholders and you or any group of
Underwriters, including you, who have agreed hereunder to purchase in
the aggregate at least 50% of the Firm Shares may from time to time
agree on a later time for the effectiveness of the Registration
Statement.
(g) Prior to the time of purchase and the additional time
of purchase, as the case may be, (i) no stop order
30
-29-
with respect to the effectiveness of the Registration Statement shall
have been issued under the Act or proceedings initiated under Section
8(d) or 8(e) of the Act; (ii) the Registration Statement and all
amendments thereto, or modifications thereof, if any, shall not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and (iii) the Prospectus and all
amendments or supplements thereto, or modifications thereof, if any,
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they are made, not misleading.
(h) Between the time of execution of this Agreement and
the time of purchase or the additional time of purchase, as the case
may be, there has not been (i) any material and adverse change,
present or prospective, financial or otherwise (other than as referred
to in or contemplated by the Registration Statement and Prospectus),
in the business, properties, assets, operations, liabilities, results
of operations, business, condition (financial or otherwise) or
prospects of the Company and the Subsidiaries taken as a whole; (ii)
any transaction that is material to the Company and its subsidiaries
taken as a whole contemplated or entered into by the Company or any of
its subsidiaries, other than as described in or contemplated by the
Registration Statement and the Prospectus; or (iii) any obligation,
contingent or otherwise, directly or indirectly, incurred by the
Company or any of the Subsidiaries that is material to the Company and
its subsidiaries taken as a whole, other than as described in or
contemplated by the Registration Statement and the Prospectus.
(i) The Company will, at the time of purchase or
additional time of purchase, as the case may be, deliver to you a
certificate of its chief executive officer and chief financial officer
to the effect that the representations and warranties of the Company
as set forth in this Agreement and the conditions set forth in
paragraphs (g) and (h) of this Section 8 have been met and that they
are true and correct in all material respects as of each such date (it
being understood that, in the absence of bad faith, such individuals
shall have no personal liability for the accuracy of such
certificate).
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(j) You shall have received signed letters from the
Selling Shareholders and each of the directors, and executive officers
of the Company to the effect that such persons will not sell, contract
to sell, grant any option to sell, transfer or otherwise dispose of,
directly or indirectly, any shares of Common Stock of the Company or
securities convertible into or exchangeable for Common Stock or
warrants or other rights to purchase Common Stock for a period of 90
days after the date of the Prospectus without the prior written
consent of SBCWDR.
(k) The Shares to be sold by the Company shall have been
approved for listing on the Nasdaq National Market, subject only to
notice of issuance at or prior to the time of purchase.
(l) The Selling Shareholders shall have delivered to you,
at the time of purchase, a certificate of the Representatives of the
Selling Shareholders to the effect that the representations and the
warranties of the Selling Shareholders as set forth in this Agreement
are true and correct as of each such date.
(m) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement,
the Shares, and the Prospectus, and all other legal matters relating
to this Agreement, the Shares, and the transactions contemplated
hereby shall be satisfactory in all reasonable respects to ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, and such counsel shall have been furnished with such
documents and opinions, in addition to those set forth above, as they
may reasonably require for the purpose of enabling them to review or
pass upon the matters referred to in this Section 8, in order to
evidence the accuracy, completeness and satisfaction in all material
respects of any of the representations, warranties or conditions
herein contained and to render the opinion referred to in Section
8(d).
(n) The Company and the Representatives of the Selling
Shareholders shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in
the Registration Statement and the Prospectus as of the time of
purchase and the additional time of purchase, as the case may be, as
you may reasonably request.
32
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(o) The Company and the Selling Shareholders shall have
performed such of their respective obligations under this Agreement as
are to be performed by the terms hereof at or before the time of
purchase and at or before the additional time of purchase, as the case
may be.
(p) The Company shall furnish to you at the time of
purchase and at such additional time of purchase, as the case may be,
opinions of counsel in Brazil, France, England, Ireland, Italy, Mexico
and Russia in the forms heretofore previously approved by you and
satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters.
9. Effective Date of Agreement; Termination. (a) This
Agreement shall become effective (x) if Rule 430A under the Act is not used,
when you shall have received notification of the effectiveness of the
Registration Statement, or (y) if Rule 430A under the Act is used, when the
parties hereto have executed and delivered this Agreement.
(b) The obligations of the several Underwriters hereunder
shall be subject to termination in the absolute discretion of you or any group
of Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares, if, since the time of execution of
this Agreement or the respective dates as of which information is given in the
Registration Statement and Prospectus, there has been any material adverse
change, financial or otherwise (other than as referred to in the Registration
Statement and Prospectus), in the business, condition or prospects of the
Company and its subsidiaries taken as a whole, which would, in your judgment or
in the judgment of such group of Underwriters, make it impracticable to market
the Shares, or if, at any time prior to the time of purchase or, with respect
to the purchase of any Additional Shares, the additional time of purchase, as
the case may be, trading in securities on the New York Stock Exchange shall
have been suspended or minimum prices shall have been established on the New
York Stock Exchange, or if a banking moratorium shall have been declared either
by the United States or New York State authorities, or if the United States
shall have declared war in accordance with its constitutional processes or
there shall have occurred any material outbreak or escalation of hostilities or
other national or international calamity or crisis of such magnitude in its
effect on the financial markets of the United States as, in your judgment or in
the judgment of SBCWDR, acting on your behalf, or in the judgment of such group
of Underwriters, to make it impracticable or inadvisable to market the Shares.
If you or any such group of Underwriters
33
-32-
elects to terminate this Agreement as provided in this Section 9, the Company,
the Representatives of the Selling Shareholders and each other Underwriter
shall be notified promptly by letter or telegram.
(c) If the sale to the Underwriters of the Shares, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement or if such sale is not carried out
because the Company or the Selling Shareholders, as the case may be, shall be
unable to comply with any of the terms of this Agreement, the Company or the
Selling Shareholders, as the case may be, shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections 5(o),
7 and 11 hereof), and the Underwriters shall be under no obligation or
liability to the Company and the Selling Shareholders under this Agreement
(except to the extent provided in Section 11 hereof) or to one another
hereunder.
10. Increase in Underwriters' Commitments. If any
Underwriter shall default in its obligation to take up and pay for the Firm
Shares to be purchased by it hereunder and if the number of Firm Shares which
all Underwriters so defaulting shall have agreed but failed to take up and pay
for does not exceed 10% of the total amount of Firm Shares, the non-defaulting
Underwriters shall take up and pay for (in addition to the aggregate amount of
Firm Shares they are obligated to purchase pursuant to Section 1 hereof) the
number of Firm Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be taken up and paid
for by such non- defaulting Underwriter or Underwriters in such amount or
amounts as you may designate with the consent of each Underwriter so designated
or, in the event no such designation is made, such Shares shall be taken up and
paid for by all non-defaulting Underwriters pro rata in proportion to the
aggregate number of Firm Shares set opposite the names of such non-defaulting
Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company and the Selling Shareholders agree with the
non-defaulting Underwriters that they will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter
34
-33-
or Underwriters in accordance with the foregoing provision, the Company or you
shall have the right to postpone the time of purchase for a period not
exceeding five business days in order that any necessary changes in the
Registration Statement and the Prospectus and other documents may be effected.
The term Underwriter as used in this agreement shall refer to
and include any Underwriter substituted under this Section 10 with like effect
as if such substituted Underwriter had originally been named in Schedule A.
11. Indemnity by the Company, certain of the Selling
Shareholders and the Underwriters. (a) The Company, and each Selling
Shareholder selling more than 100,000 Firm Shares hereunder jointly and
severally, agree to indemnify, defend and hold harmless each Underwriter and
any person who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any loss, expense,
liability or claim (including the reasonable cost of investigation) which,
jointly or severally, any such Underwriter or any such person may incur under
the Act, the Exchange Act or otherwise insofar as such loss, expense, liability
or claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by
the Company) or in a Prospectus (the term Prospectus for the purpose of this
Section 11 being deemed to include any Preliminary Prospectus, the Prospectus
and the Prospectus as amended or supplemented by the Company), or arises out of
or is based upon any omission or alleged omission to state a material fact
required to be stated in either such Registration Statement or Prospectus or
necessary to make the statements made therein, not misleading, except insofar
as any such loss, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained
in and in conformity with information furnished in writing by any Underwriter
through you to the Company expressly for use in such Registration Statement or
such Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in either such Registration Statement or Prospectus or necessary
to make such information not misleading; provided, however, that the indemnity
agreement contained in this subsection (a) with respect to any Preliminary
Prospectus or amended Preliminary Prospectus shall not inure to the benefit of
any Underwriter (or to the benefit of any person controlling such Underwriter)
from whom the person asserting any such loss, expense,
35
-34-
liability or claim purchased the Shares which are the subject thereof if the
Prospectus corrected any such alleged untrue statement or omission and if such
Underwriter failed to send or give a copy of the Prospectus to such person at
or prior to the written confirmation of the sale of such Shares to such person;
provided, further, that no Selling Shareholder shall be responsible, either
pursuant to this indemnity or as a result of any other provision of this
Agreement, for losses, expenses, liability or claims for an amount in excess of
the net proceeds to be received by such Selling Shareholder from the sale of
Shares hereunder.
If any action is brought against an Underwriter or any such
person in respect of which indemnity may be sought against the Company or the
Selling Shareholders pursuant to the foregoing paragraph, such Underwriter or
such person shall promptly notify the Company and the Representatives of the
Selling Shareholders in writing of the institution of such action and the
Company or such Selling Shareholders, as the case may be, shall assume the
defense of such action, including the employment of counsel satisfactory to
such indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify the Company or the Representatives of the
Selling Shareholders shall not relieve the Company or any Selling Shareholder
from any liability which they may have to any Underwriter or any such person or
otherwise except to the extent that the Company or any such Selling Shareholder
shall have been materially and adversely prejudiced by such failure to give
notice. Such Underwriter or such controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or of such person
unless the employment of such counsel shall have been authorized in writing by
the Company or such Selling Shareholders in connection with the defense of such
action or the Company or such Selling Shareholders shall not have employed
counsel to have charge of the defense of such action within a reasonable period
of time or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from or
additional to those available to the Company or such Selling Shareholders (in
which case the Company or such Selling Shareholder shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company or such Selling Shareholder, as the case may be, and paid as incurred
(it being understood, however, that the Company or such Selling Shareholder
shall not be liable for the expenses of more than one separate counsel in
36
-35-
any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action. The
Company or such Selling Shareholder shall not be liable for any settlement of
any such claim or action effected without its written consent, but if settled
with the written consent of the Company or such Selling Shareholders, or such
Selling Shareholder, the Company or such Selling Shareholder agrees to
indemnify and hold harmless any Underwriter and any such person from and
against any loss or liability by reason 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.
(b) Each Underwriter severally agrees to indemnify,
defend and hold harmless the Company, its directors and officers, the Selling
Shareholders and any person who controls the Company or any Selling Shareholder
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
from and against any loss, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the Company, the
Selling Shareholders or any such person may incur under the Act, the Exchange
Act or otherwise, insofar as such loss, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by or on behalf of such Underwriter through you to the Company
expressly for use with reference to such Underwriter in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus, or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated either in such
Registration Statement or Prospectus or necessary to make such information not
misleading.
If any action is brought against the Company, any Selling
Shareholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, such
Selling Shareholders or such person shall promptly notify such Underwriter in
writing of the institution of such action and such Underwriter shall assume the
defense of such action, including the employment of counsel reasonably
satisfactory to such indemnified party and
37
-36-
payment of all fees and expenses, provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which they may have to the Company, any Selling Shareholder or any such person
or otherwise except to the extent that the Underwriter shall have been
materially and adversely prejudiced by such failure to give notice. The
Company, such Selling Shareholders or such person shall have the right to
employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company, such Selling Shareholders or
such person unless the employment of such counsel shall have been authorized in
writing by such Underwriter in connection with the defense of such action or
such Underwriter shall not have employed counsel to have charge of the defense
of such action within a reasonable period of time or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties, but
such Underwriter may employ counsel and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel in any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action). No
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of such Underwriter but if settled with
the written consent of such Underwriter, such Underwriter agrees to indemnify
and hold harmless the Company, any Selling Shareholder and any such person from
and against any loss or liability by reason 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.
(c) If the indemnification provided for in this Section
11 is unavailable to an indemnified party under subsections (a) and (b) of this
Section 11 in respect of any losses, expenses, liabilities or claims referred
to therein, then each
38
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applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, the
Selling Shareholders on the one hand and the Underwriters on the other hand
from the offering of the Shares or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholders
on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, expenses, liabilities or
claims, 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 proceeds from the offering (net of underwriting discounts and
commissions but 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 of the Company and the
Selling Shareholders on the one hand and of the Underwriters on the other shall
be determined by reference to, among other things, whether the untrue statement
or alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company, by the Selling Shareholders or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, expenses,
liabilities and claims referred to above shall be deemed to include any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(d) The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 11 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 subsection (c) above. Notwithstanding the provisions of this
Section 11, 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 such
Underwriter and distributed to the public were offered to the public exceeds
the amount of any damages which such Underwriter has
39
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otherwise been required to pay by reason of such untrue statements or alleged
untrue statements or omission or alleged omission and, notwithstanding any
other provisions of this Agreement, no Selling Shareholder shall be required to
contribute an amount in excess of the net proceeds to be received by such
Selling Shareholder from the sale of Shares hereunder.. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 11 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained
in this Section 11 and the covenants, warranties and representations of the
Company and the Selling Shareholders contained in this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf
of any Underwriter, its directors and officers or any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Company, its directors and officers,
the Selling Shareholders or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall
survive any termination of this Agreement or the issuance and delivery of the
Shares. The Company, each Selling Shareholder and each Underwriter agree
promptly to notify the others of the commencement of any litigation or
proceeding against it and, in the case of the Company, against any of the
Company's officers and directors in connection with the issuance and sale of
the Shares, or in connection with the Registration Statement or Prospectus.
12. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by
facsimile and, if to the Underwriters, shall be sufficient in all respects if
delivered or sent to SBC Warburg Dillon Read Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: Syndicate Department, if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices
of the Company at ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇ and, if to the Selling Shareholders, shall be sufficient in all
respects if delivered or sent to the Representatives of the Selling
Shareholders at ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:
40
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13. CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS
AGREEMENT HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE
NOT A PART OF THIS AGREEMENT.
14. Parties at Interest. The Agreement herein set forth
has been and is made solely for the benefit of the Underwriters, the Company,
the Selling Shareholders, and the controlling persons, directors and officers
referred to in Section 11 hereof, and their respective successors, assigns,
executors and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
15. Counterparts. This Agreement may be signed by the
parties in counterparts which together shall constitute one and the same
agreement among the parties.
16. Miscellaneous. SBC Warburg Dillon Read Inc., an
indirect, wholly owned subsidiary of Swiss Bank Corporation, is not a bank and
is separate from any affiliated bank, including any U.S. branch or agency of
Swiss Bank Corporation. Because SBC Warburg Dillon Read Inc. is a separately
incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by SBC
Warburg Dillon Read Inc. are not deposits, are not insured by the Federal
Deposit Insurance Corporation, are not guaranteed by a branch or agency, and
are not otherwise an obligation or responsibility of a branch or agency.
A lending affiliate of SBC Warburg Dillon Read Inc. may have
lending relationships with issuers of securities underwritten or privately
placed by SBC Warburg Dillon Read Inc. To the extent required under the
securities laws, prospectuses and other disclosure documents for securities
underwritten or privately placed by SBC Warburg Dillon Read Inc. will disclose
the existence of any such lending relationships and whether the proceeds of the
issue will be used to repay debts owed to affiliates of SBC Warburg Dillon Read
Inc.
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If the foregoing correctly sets forth the understanding among
the Company, the Underwriters and the Selling Shareholders, please so indicate
in the space provided below for the Company, the Representatives of the Selling
Shareholders and the Underwriters for this purpose, whereupon this letter and
your acceptance shall constitute a binding agreement among the Company, the
Selling Shareholders and the Underwriters, severally.
Very truly yours,
THE ▇▇▇▇▇-▇'▇▇▇▇ COMPANY
By:
-----------------------------------
Name:
Title:
THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE B ATTACHED HERETO
By the Representatives of the
Selling Shareholders By:
By:
-----------------------------------
Name:
Title: Attorney-in-Fact
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Accepted and agreed to as of the
date first above written, on
behalf of themselves and the
other several Underwriters named
in Schedule A
SBC WARBURG DILLON READ INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
By: SBC WARBURG DILLON READ INC.
By: ------------------------------
Name:
Title:
By: ------------------------------
Name:
Title:
43
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
SBC Warburg Dillon Read Inc. . . . . . . . . . . . _________
Bear, ▇▇▇▇▇▇▇ & Co. Inc.. . . . . . . . . . . . . . _________
SunTrust Equitable Securities Corporation . . . . . _________
Total . . . . . . . . . . . . . . . . . . =========
44
SCHEDULE B
Selling Shareholders Number of
Firm Shares
. . . . . . . . . . . . . . . . . . .
45
SCHEDULE C
Overallotment Shareholders Number of
Firm Shares
. . . . . . . . . . . . . . . . . . .
46
Exhibit A
Certain Subsidiaries of The ▇▇▇▇▇-▇'▇▇▇▇ Company
Hellis Poids Lourds-Carrosserie,
Tolerie, Peinture, S.A.,
a French corporation
Kroll Associates (Asia) Limited
a Hong Kong corporation
▇▇▇▇▇ Associates, Inc.
a Delaware corporation
Kroll Associates International Holdings, Inc.,
a Delaware corporation
Kroll Associates U.K. Limited
an English corporation
Kroll Environmental Enterprises, Inc.,
a Delaware corporation
Kroll Holdings, Inc.,
a Delaware corporation
Kroll Information Services, Inc.
a Delaware corporation
Kroll International, Inc.,
a Delaware corporation
Next Destination Limited
an English corporation
▇▇▇▇▇ ▇▇,
a French corporation
▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring Company,
a Delaware corporation
▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring Company de Mexico,
S.A. de C.V., a Mexican corporation
47
▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring do Brasil Ltda.,
a Brazilian corporation
O'Gara Security International, Inc.,
a Delaware corporation
O'Gara Satellite Networks Limited,
an Irish corporation
ZAO IMEA,
a Russian joint stock corporation
