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DRAFT
2,000,000 Shares of Common Stock
The Dress Barn, Inc.
UNDERWRITING AGREEMENT
May __, 1997
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXXXX & COMPANY LLC
as Representatives of the
several Underwriters named in
Schedule II attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
The shareholders named in Schedule I hereto (together, the
"Selling Shareholders") propose, subject to the terms and conditions stated
herein, to sell to the several underwriters named in Schedule II hereto (the
"Underwriters") an aggregate of 2,000,000 shares (the "Firm Shares") of common
stock, par value $.05 per share (the "Common Stock"), of The Dress Barn, Inc., a
Connecticut corporation (the "Company"), and, for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, The Xxxxx Family
Foundation proposes to grant to the Underwriters an option to purchase up to
300,000 additional shares (the "Additional Shares") of Common Stock. The Firm
Shares and any Additional Shares purchased by the Underwriters are referred to
herein as the "Shares." The Shares are more fully described in the Registration
Statement referred to below.
1. Representations and Warranties of the Company and Selling
Shareholders.
(a) The Company and the Xxxxx Family, L.P. jointly and severally
represent and warrant to, and agree with, the Underwriters that:
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(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form S-3 (File No. 333-25377), for the
registration of the Shares under the Securities Act of 1933, as amended (the
"Act"). Such registration statement, including the prospectus, financial
statements and schedules, exhibits and all other documents filed as a part
thereof, as amended at the time of effectiveness of the registration statement,
including any information deemed to be a part thereof as of the time of
effectiveness pursuant to Rule 430A or Rule 434 of the Rules and Regulations of
the Commission under the Act (the "Regulations"), is herein called the
"Registration Statement," and the prospectus, in the form first filed with the
Commission pursuant to Rule 424(b) of the Regulations or filed as part of the
Registration Statement at the time of effectiveness if no Rule 424(b) or Rule
434 filing is required or made, is herein called the "Prospectus." The term
"preliminary prospectus" as used herein means a preliminary prospectus as
described in Rule 430 of the Regulations. Any reference herein to the
Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the effective date of
the Registration Statement, the date of such preliminary prospectus or the date
of the Prospectus, as the case may be, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to refer to and
include (A) the filing of any document under the Exchange Act after the
effective date of the Registration Statement, the date of such preliminary
prospectus or the date of the Prospectus, as the case may be, which is
incorporated therein by reference and (B) any such document so filed.
(ii) At the time of the effectiveness of the Registration Statement
or the effectiveness of any post-effective amendment to the Registration
Statement, when the Prospectus is first filed with the Commission pursuant to
Rule 424(b) or Rule 434 of the Regulations, when any supplement to or amendment
of the Prospectus is filed with the Commission, when any document filed under
the Exchange Act is filed and at the Closing Date (as hereinafter defined) and
any Additional Closing Date (as hereinafter defined), the Registration Statement
and the Prospectus and any amendments thereof and supplements thereto complied
or will comply in all material respects with the applicable provisions of the
Act and the Regulations and the Exchange Act and the respective rules and
regulations thereunder and does not or will not contain an untrue statement of a
material fact and does not or will not omit to state any material fact required
to be stated therein or necessary in order to make the statements therein (A) in
the case of the Registration Statement, not misleading and (B) in the case of
the Prospectus, in the light of the circumstances under which they were made,
not misleading. When any related preliminary prospectus was first filed with the
Commission (whether filed as part of the registration statement for the
registration of the Shares or any amendment thereto or pursuant to Rule 424(a)
of the Regulations) and when any amendment thereof or supplement thereto was
first filed with the Commission, such preliminary prospectus and any amendments
thereof and supplements thereto complied in all material respects with the
applicable provisions of the Act and the Regulations and the Exchange Act and
the respective rules and regulations thereunder and did not contain an untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. No representation and warranty is made in this subsection (ii),
however, with respect to any information contained in the Registration Statement
or the Prospectus or any related preliminary prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter through
you as herein stated expressly for use in connection with the preparation
thereof.
(iii) The Company and each of D.B.R., Inc. and D.B.X. Inc.
(together, the "Significant Subsidiaries") has been duly organized and is
validly existing as a
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corporation in good standing under the laws of its jurisdiction of
incorporation. The Company and each of the Significant Subsidiaries is duly
qualified and in good standing as a foreign corporation in each jurisdiction in
which the character or location of its properties (owned, leased or licensed) or
the nature or conduct of its business makes such qualification necessary. The
Company and each of the Significant Subsidiaries has all requisite power and
authority, and all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, to own, lease and operate its
properties and conduct its business as now being conducted and as described in
the Registration Statement and the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus.
(iv) This Agreement and the transactions contemplated herein have
been duly and validly authorized by the Company and this Agreement has been duly
and validly executed and delivered by the Company.
(v) Neither the Company nor any of the Significant Subsidiaries is
in violation of its respective certificate of incorporation or by-laws or in
default in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct of its business
to which it is a party or by which it or any of its property is bound.
(vi) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby do not and will not (A)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of the Significant Subsidiaries pursuant to, any agreement, instrument,
franchise, license or permit to which the Company or any of the Significant
Subsidiaries are a party or by which any of such entities or their respective
properties or assets may be bound or (B) violate or conflict with any provision
of the certificate of incorporation, by-laws or other organizational documents
of the Company or any of the Significant Subsidiaries or any judgment, decree,
order, statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Company or any of the
Significant Subsidiaries. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court or
any public, governmental or regulatory agency or body having jurisdiction over
the Company or any of the Significant Subsidiaries is required for the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, including the sale and delivery of the Shares,
except the registration under the Act of the Shares and such consents,
approvals, authorizations, orders, registrations, filings, qualifications,
licenses and permits as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters.
(vii) The Shares, when delivered and sold in accordance with this
Agreement, will be duly and validly authorized, issued and outstanding, fully
paid and nonassessable, and will not have been issued in violation of or be
subject to any preemptive rights. The Company had, at January 25, 1997, an
authorized and outstanding capitalization as set forth in the Registration
Statement and the Prospectus. The Common Stock, the Firm Shares and the
Additional Shares conform to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(viii) Except as described in the Prospectus, there are no
outstanding (A) shares of capital stock of the Company or securities or
obligations of the Company convertible into or
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exchangeable or exercisable for any such capital stock, (B) warrants, rights or
options to subscribe for or purchase from the Company any such capital stock or
any such convertible or exchangeable securities or obligations or (C)
obligations of the Company to issue such shares, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or options.
(ix) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth in
the Registration Statement and the Prospectus, there has been no material
adverse change in the business, prospects, properties, operations, condition
(financial or other) or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in the
ordinary course of business, and since the date of the latest balance sheet
presented in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company and its
subsidiaries taken as a whole, except for liabilities or obligations which are
reflected in the Registration Statement and the Prospectus.
(x) To the best of the Company's knowledge, Deloitte & Touche LLP,
who have certified the financial statements and supporting schedules included in
the Registration Statement, are independent public accountants as required by
the Act and the Regulations.
(xi) The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the Prospectus
present fairly in all material respects the financial position of the Company as
of the dates indicated and the results of its operations for the periods
specified; except as otherwise stated in the Registration Statement, said
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis; and the supporting
schedules included in the Registration Statement present fairly in all material
respects the information required to be stated therein.
(xii) Except as described in the Prospectus, there is no litigation
or governmental proceeding to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its subsidiaries is
subject or which is pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries which might have a material
adverse effect on the business, prospects, properties, operations, condition
(financial or other) or results of operations of the Company and its
subsidiaries taken as a whole or which is required to be disclosed in the
Registration Statement and the Prospectus (a "Material Adverse Effect").
(xiii) The Company and each of the Significant Subsidiaries has
good and marketable title to all property and assets described in the
Registration Statement as being owned by it free and clear of all liens, claims,
encumbrances and restrictions that, singly or in the aggregate, might have a
Material Adverse Effect or might materially interfere with the use made by the
Company or such subsidiary. All leases to which the Company or any the
Significant Subsidiaries is a party are valid and binding and no default has
occurred or is continuing thereunder that, singly or in the aggregate, might
have a Material Adverse Effect, and the Company and the Significant Subsidiaries
enjoy peaceful and undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not materially interfere
with the use made by the Company or such subsidiary.
(xiv) Neither the Company nor any of the Significant 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
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Income Security Act or the rules and regulations promulgated thereunder, which
in each case, singly or in the aggregate, might have a Material Adverse Effect.
(xv) There is no alleged liability, or to the best knowledge of the
Company, potential liability (including, without limitation, alleged or
potential liability or investigatory costs, cleanup costs, governmental response
costs, natural resource damages, property damages, personal injuries or
penalties) of the Company or any of the Significant Subsidiaries arising out of,
based on or resulting from (A) the presence or release into the environment of
any Hazardous Material (as defined below) at any location, whether or not owned
by the Company or any such subsidiary or (B) any violation or alleged violation
of any Environmental Law, which alleged or potential liability is required to be
disclosed in the Prospectus, other than as disclosed therein, or might, singly
or in the aggregate have a Material Adverse Effect. The term "Hazardous
Material" means (A) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, (B)
any "hazardous waste" as defined by the Resource Conservation and Recovery Act,
as amended, (C) any petroleum or petroleum product, (D) any polychlorinated
biphenyl and (E) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material, waste or substance regulated under or within the meaning of
any other law relating to protection of human health or the environment or
imposing liability or standards of conduct concerning any such chemical
material, waste or substance.
(xvi) Neither the Company nor any person acting on behalf of the
Company has taken or will take, directly or indirectly, any action designed to
cause or result in, or which constitutes or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the Shares.
(xvii) No holder of securities of the Company has any rights to the
registration of securities of the Company because of the filing of the
Registration Statement or otherwise in connection with the sale of the Shares
contemplated hereby.
(xviii) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration as an
"investment company" under the Investment Company Act of 1940.
(xix) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(xx) Except for the Significant Subsidiaries, no subsidiary of the
Company has any material operations, assets or liabilities.
(xxi) The Shares are listed on the Nasdaq National Market.
(b) Each Selling Shareholder, severally and not jointly, represents and
warrants to, and agrees with, the several Underwriters that:
(i) At the time of the effectiveness of the Registration Statement
or the effectiveness of any post-effective amendment to the Registration
Statement, when the Prospectus is first filed with the Commission pursuant to
Rule 424(b) or Rule 434 of the Regulations, when any supplement to or amendment
of the Prospectus is filed with the Commission, when any document filed under
the Exchange Act is filed and at the Closing Date (as hereinafter defined) and
any Additional Closing Date (as hereinafter defined), the Registration Statement
and the Prospectus and any amendments thereof and
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supplements thereto complied or will comply in all material respects with the
applicable provisions of the Act and the Regulations and the Exchange Act and
the respective rules and regulations thereunder and does not or will not contain
an untrue statement of a material fact and does not or will not omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein (A) in the case of the Registration Statement, not
misleading and (B) in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading. When any related
preliminary prospectus was first filed with the Commission (whether filed as
part of the registration statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) of the Regulations) and when any
amendment thereof or supplement thereto was first filed with the Commission,
such preliminary prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the Act and
the Regulations and the Exchange Act and the respective rules and regulations
thereunder and did not contain an untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and warranties made in
this subsection (i), however, shall relate only to information contained in the
Registration Statement or the Prospectus or any related preliminary prospectus
or any amendment thereof or supplement thereto in reliance upon or in conformity
with information furnished in writing to the Company by or on behalf of such
Selling Shareholder.
(ii) This Agreement and the transactions contemplated herein have
been duly and validly authorized by such Selling Shareholder and this Agreement
has been duly and validly executed and delivered by such Selling Shareholder.
(iii) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby do not and will not (A)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of such Selling
Shareholder pursuant to, any agreement, instrument, franchise, license or permit
to which such Selling Shareholder is a party or by which such Selling
Shareholder or its properties or assets may be bound or (B) violate or conflict
with any provision of the organizational documents of such Selling Shareholder
or any judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over such
Selling Shareholder or any of its properties or assets. No consent, approval,
authorization, order, registration, filing, qualification, license or permit of
or with any court or any public, governmental or regulatory agency or body
having jurisdiction over such Selling Shareholder or any of its properties or
assets is required for the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby, including the sale
and delivery of the Shares, except the registration under the Act of the Shares
and such consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters.
(iv) Neither such Selling Shareholder, nor any person acting on
behalf of such Selling Shareholder, has taken or will take, directly or
indirectly, any action designed to cause or result in, or which constitutes or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the sale
or resale of the Shares.
(v) Such Selling Shareholder has been duly organized and is
validly existing as a limited partnership in good standing under the laws of
Connecticut or as a not-for-profit corporation in good standing under the laws
of New York, as the case may be.
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(vi) Such Selling Shareholder is the lawful owner of the Shares to
be sold by it pursuant to this Agreement and has, and on the Closing Date (and
Additional Closing Date, if applicable) will have, good and clear title to such
Shares, free of all restrictions on transfer, liens, encumbrances, security
interests and claims whatsoever.
(vii) Upon delivery of and payment for the Shares to be sold by
such Selling Shareholder pursuant to this Agreement, good and clear title to
such Shares will pass to the Underwriters, free of all restrictions on transfer,
liens, encumbrances, security interests and claims whatsoever.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Selling Shareholders agree to sell to the Underwriters and the
Underwriters, severally and not jointly, agree to purchase from the Selling
Shareholders, at a purchase price per share of $___________, the number of Firm
Shares set forth opposite the respective names of the Underwriters in Schedule I
hereto plus any additional number of Shares which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price and delivery of certificates for
the Shares shall be made at the office of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by you
and the Selling Shareholders, at 10:00 A.M. on the third or fourth business day
(as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in
accordance with the provisions of Section 9 hereof) following the date of the
effectiveness of the Registration Statement (or, if the Company has elected to
rely upon Rule 430A of the Regulations, the third or fourth business day (as
permitted under Rule 15c6-1 under the Exchange Act) after the determination of
the initial public offering price of the Shares), or such other time not later
than ten business days after such date as shall be agreed upon by you and the
Selling Shareholders (such time and date of payment and delivery being herein
called the "Closing Date"). Payment shall be made to the Selling Shareholders by
wire transfer in same day funds, against delivery to you for the respective
accounts of the Underwriters of certificates for the Shares to be purchased by
them. Certificates for the Shares shall be registered in such name or names and
in such authorized denominations as you may request in writing at least two
business days prior to the Closing Date. The Company and the Selling
Shareholders will permit you to examine and package such certificates for
delivery at least one business day prior to the Closing Date.
(c) In addition, The Xxxxx Family Foundation hereby grants to the
Underwriters an option to purchase up to 300,000 Additional Shares at the same
purchase price per share to be paid by the Underwriters to the Selling
Shareholders for the Firm Shares as set forth in this Section 2, for the sole
purpose of covering over-allotments in the sale of Firm Shares by the
Underwriters. This option may be exercised at any time in whole or up to three
times in part on or before the 30th day following the date of the Prospectus, by
written notice by you to the Company and the Xxxxx Family Foundation. Such
notice shall set forth the aggregate number of Additional Shares as to which the
option is being exercised and the date and time, as reasonably determined by
you, when the Additional Shares are to be delivered (each such date and time
being herein sometimes referred to as an "Additional Closing Date"); provided,
however, that an Additional Closing Date shall not be earlier than the Closing
Date or earlier than the second full business day after the date on which the
option shall have been exercised or later than the eighth full business day
after the date on which the option shall have been exercised (unless such time
and date are postponed in accordance with the provisions of Section 9 hereof).
Certificates for the Additional Shares shall be registered in such name or names
and in such authorized denominations as you may request in writing at
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least two business days prior to each Additional Closing Date. The Company and
the Xxxxx Family Foundation will permit you to examine and package such
certificates for delivery at least one business day prior to the Additional
Closing Date.
The number of Additional Shares to be sold to each Underwriter on
each Additional Closing Date shall be the number which bears the same ratio to
the aggregate number of Additional Shares being purchased on such Additional
Closing Date as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 2,000,000, subject, however, to such adjustments to
eliminate any fractional shares as you in your sole discretion shall make.
Payment for the Additional Shares shall be made by wire transfer in
same day funds at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, or such other location as may be mutually acceptable, upon
delivery of the certificates for the Additional Shares to you for the respective
accounts of the Underwriters.
3. Offering. Upon your authorization of the release of the Firm
Shares, the Underwriters propose to offer the Shares for sale and distribution
to the public upon the terms set forth in the Prospectus.
4. Covenants of the Company and Selling Shareholders.
(a) The Company covenants and agrees with the Underwriters that:
(i) If the Registration Statement has not yet been declared
effective, the Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible, and if Rule 430A is used or the filing of the Prospectus is otherwise
required under Rule 424(b) or Rule 434, the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule
434 within the prescribed time period and will provide evidence satisfactory to
you of such timely filing.
The Company will notify you immediately (and, if requested by
you, will confirm such notice in writing) (A) when the Registration Statement
and any amendments thereto become effective, (B) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (C) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, (D) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto or of the initiation, or the threatening,
of any proceedings therefor, (E) of the receipt of any comments from the
Commission and (F) of the receipt 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 that purpose. If the
Commission shall propose or enter a stop order at any time, the Company will use
its best efforts to prevent the issuance of any such stop order and, if issued,
to obtain the lifting of such order as soon as possible. The Company will not
file any amendment to the Registration Statement or any amendment of or
supplement to the Prospectus (including the prospectus required to be filed
pursuant to Rule 424(b) or Rule 434) that differs from the prospectus on file at
the time of the effectiveness of the Registration Statement before or after the
effective date of the Registration Statement or file any document under the
Exchange Act if such document would be deemed to be incorporated by reference
into the Prospectus to which you shall reasonably object in writing after being
timely furnished in advance a copy thereof.
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(ii) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act, any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would, in the
judgment of the Representatives or counsel to the Underwriters, include an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it shall
be necessary at any time to amend or supplement the Prospectus or Registration
Statement to comply with the Act or the Regulations, or to file under the
Exchange Act so as to comply therewith any document incorporated by reference in
the Registration Statement or the Prospectus or in any amendment thereof or
supplement thereto, the Company will notify you promptly and prepare and file
with the Commission an appropriate amendment or supplement (in form and
substance satisfactory to you) which will correct such statement or omission or
which will effect such compliance and will use its best efforts to have any
amendment to the Registration Statement declared effective as soon as possible.
(iii) The Company will promptly deliver to you two signed copies
of the Registration Statement, including exhibits and all documents incorporated
by reference therein and all amendments thereto, and the Company will promptly
deliver to each of the Underwriters such number of copies of any preliminary
prospectus, the Prospectus, the Registration Statement and all amendments of and
supplements to such documents, if any, and all documents incorporated by
reference in the Registration Statement and Prospectus or any amendment thereof
or supplement thereto as you may reasonably request.
(iv) The Company will endeavor in good faith, in cooperation
with you, at or prior to the time of effectiveness of the Registration
Statement, to qualify the Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of such jurisdictions as you may
designate and to maintain such qualification in effect for so long as required
for the distribution thereof; provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction where it is
not so qualified.
(v) The Company will make generally available (within the
meaning of Section 11 (a) of the Act) to its security holders and to you as soon
as practicable, but not later than 90 days after the end of its fiscal quarter
in which the first anniversary date of the effective date of the Registration
Statement occurs, an earning statement (in form complying with the provisions of
Rule 158 of the Regulations) covering a period of at least twelve consecutive
months beginning after the effective date of the Registration Statement.
(vi) The Company will obtain the undertaking of each of its
executive officers and directors named in the Prospectus and Xxxxx Xxxxx that
during the period of 90 days from the date of the Prospectus, such
aforementioned persons will not without your prior written consent, issue, sell,
offer or agree to sell, grant any option for the sale of, or otherwise dispose
of, directly or indirectly, any shares of Common Stock (or any securities
convertible into or exercisable or exchangeable for Common Stock), on their own
behalf, other than the Company's issuance of Common Stock upon the exercise of
presently outstanding stock options.
(vii) During a period of three years from the effective date of
the Registration Statement, the Company will furnish to you copies of (A) all
reports to its shareholders and (B) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
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(viii) The Company, during the period when the Prospectus is
required to be delivered under the Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act within the time periods required by the Exchange Act and
the rules and regulations thereunder.
(b) Each Selling Shareholder covenants and agrees with the
Underwriters that during the period of 90 days from the date of the Prospectus,
it will not without your prior written consent, sell, offer or agree to sell,
grant any option for the sale of, or otherwise dispose of, directly or
indirectly, any shares of Common Stock (or any securities convertible into or
exercisable or exchangeable for Common Stock) other than such Selling
Shareholder's sale of Shares hereunder.
5. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company and the Selling Shareholders hereby agree to pay all costs and
expenses incident to the performance of the obligations of the Company and the
Selling Shareholders hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
exhibits thereto), any preliminary prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), and all other documents related to the
public offering of the Shares (including those supplied to the Underwriters in
quantities as hereinabove stated), (ii) the transfer and delivery of the Shares
to the Underwriters, including any transfer or other taxes payable thereon,
(iii) the qualification of the Shares under state or foreign securities or Blue
Sky laws, including the costs of printing and mailing a preliminary and final
Blue Sky Memoranda and the reasonable fees of counsel for the Underwriters and
such counsel's reasonable disbursements in relation thereto, (v) filing fees of
the Commission and the National Association of Securities Dealers, Inc., (vi)
the cost of printing certificates representing the Shares and (vii) the cost and
charges of any transfer agent or registrar.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the Selling Shareholders herein contained, as of
the date hereof and as of the Closing Date (for purposes of this Section 6,
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to you or to Xxxxxx & Xxxxxxx ("Underwriters' Counsel") pursuant to this Section
6 of any misstatement or omission, to the performance by the Company and the
Selling Shareholders of their obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M., New York time, on the date of this Agreement, or at such
later time and date as shall have been consented to in writing by you; if the
Company shall have elected to rely upon Rule 430A or Rule 434 of the
Regulations, the Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof, and, at or prior to the
Closing Date no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall have been issued and no
proceedings therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the opinion of
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP, counsel for the Company and the Selling
Shareholders, dated the Closing Date addressed to the Underwriters and in form
and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and other financial data included or incorporated
by reference therein, as to which no opinion need be rendered) comply as to
form in all material respects with the requirements of the Act and the
Regulations. The documents filed under the Exchange Act and incorporated by
reference in the Registration
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Statement and the Prospectus or any amendment thereof or
supplement thereto (other than the financial statements and schedules and
other financial data included or incorporated by reference therein, as to
which no opinion need be rendered) when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder.
(ii) The Registration Statement is effective under the Act, and, to
the knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereof has
been issued and no proceedings therefor have been initiated or threatened
by the Commission and all filings required by Rule 424(b) of the
Regulations have been made.
(iii) The Company and each Significant Subsidiary has been duly
organized and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation. The Company and each
Significant Subsidiary, as to states other than Connecticut, New York and
Delaware, based solely on certificates of corporate officials, copies of
which have been furnished to you, is duly qualified and in good standing as
a foreign corporation in each jurisdiction listed in such certificate,
which certificate shall indicate that such jurisdictions are the only
jurisdictions in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except where the failure to be so qualified or in
good standing, singly or in the aggregate, would not have a Material
Adverse Effect. The Company and each Significant Subsidiary has all
requisite corporate authority to own, lease and license its respective
properties and conduct its business as now being conducted and as described
in the Registration Statement and the Prospectus. All of the issued and
outstanding capital stock of each Significant Subsidiary has been duly and
validly issued and is fully paid and nonassessable and was not issued in
violation of preemptive rights and is held directly or indirectly by the
Company, free and clear of any lien, encumbrance, claim, security interest,
restriction on transfer, shareholders' agreement, voting trust or other
defect of title known to such counsel.
(iv) This Agreement has been duly and validly authorized, executed
and delivered by the Company and each Selling Shareholder.
(v) To such counsel's knowledge, neither the Company nor any of the
Significant Subsidiaries is in violation of its respective certificate of
incorporation or by-laws or in default in the performance of any
obligation, agreement or condition contained in any agreement, indenture or
instrument filed as an exhibit to the Company's Annual Report on Form 10-K
for the year ended July 27, 1996, or to any other report or document
subsequently filed with the Commission pursuant to the Act or the Exchange
Act.
(vi) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby by the Company and
the Selling Shareholders do not and will not (A) conflict with or result in
a breach of any of the terms and provisions of, or constitute a default (or
an event which with notice or lapse of time, or both, would constitute a
default) under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company, any of the
Significant Subsidiaries or either of the Selling Shareholders pursuant to
any agreement, instrument, franchise, license or permit known to such
counsel to which the Company, any of the Significant Subsidiaries or either
of the Selling Shareholders is a party or by which any of such corporations
or their respective
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properties or assets may be bound or (B) violate or conflict with any
provision of the certificate of incorporation or by-laws of the Company,
any of the Significant Subsidiaries or either of the Selling Shareholders
or, to the best knowledge of such counsel, any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Company, any of the
Significant Subsidiaries or either of the Selling Shareholders or any of
their respective properties or assets. Under the Federal laws of the United
States, the laws of State of New York and the laws of the State of
Connecticut, no consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body having jurisdiction over
the Company, any of the Significant Subsidiaries or either of the Selling
Shareholders or any of their respective properties or assets is required
for the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, except for (A) such
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters (as to
which such counsel need express no opinion) and (B) such as have been made
or obtained under the Act.
(vii) The Company has an authorized capital stock as set forth in
the Registration Statement and the Prospectus. All of the outstanding
shares of Common Stock are duly and validly authorized and issued, are
fully paid and nonassessable and were not issued in violation of or subject
to any preemptive rights under the corporation law of the State of
Connecticut or the certificate of incorporation of the Company. The Shares
to be delivered on the Closing Date have been duly and validly authorized
and, when delivered by the Selling Shareholders in accordance with this
Agreement, will be duly and validly authorized, issued, fully paid and
nonassessable and will not have been issued in violation of or subject to
any preemptive rights under the corporation law of the State of Connecticut
or the certificate of incorporation of the Company. The Common Stock, the
Firm Shares and the Additional Shares conform to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(viii) Upon the delivery of the Firm Shares and payment therefor in
accordance with the terms of this Agreement, the several Underwriters will
acquire all of the rights of the Selling Shareholders to such Shares and
will acquire such Shares free and clear of any "adverse claim" (as such
term is used in Section 8-302 of the Uniform Commercial Code as in effect
in the State on New York), assuming the several Underwriters acquire such
Shares in good faith and without notice of any such "adverse claim."
(ix) To such counsel's knowledge, there is no litigation or
governmental or other action, suit, proceeding or investigation before any
court or before or by any public, regulatory or governmental agency or body
pending or threatened against, or involving the properties or business of,
the Company or any of its subsidiaries which is of a character required to
be disclosed in the Registration Statement and the Prospectus which has not
been properly disclosed therein.
(x) Xxxxx Family, L.P. has been duly organized and is validly
existing as a limited partnership in good standing under the laws of
Connecticut.
(xi) The Xxxxx Family Foundation has been duly organized and is
validly existing as a not-for-profit corporation in good standing under
the laws of New York.
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(xii) In addition, such counsel shall also provide you a statement
in a separate letter that such counsel has acted as outside counsel to the
Company and the Selling Shareholders in connection with the purchase by the
Underwriters of the Firm Shares and the Additional Shares, as the case may
be, from the Selling Shareholders. In that capacity, they participated in
conferences with certain officers of, and with the independent accountants
for, the Company and representatives of the Underwriters concerning the
preparation of the Registration Statement and the Prospectus. Although they
made certain inquires and investigations in connection with the preparation
of the Registration Statement and the Prospectus, they did not
independently verify the accuracy or completeness of the statements made in
the Registration Statement or the Prospectus and the limitations inherent
in their role as outside counsel are such that they cannot and do not
assume responsibility for or pass on the accuracy or completeness of such
statements. Subject to the foregoing, they can state to you that their work
in connection with this matter did not disclose any information that would
cause them to believe that either the Registration Statement at the time it
became effective (including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule
430A(b) or Rule 434, if applicable), or any amendment thereof made prior to
the Closing Date as of the date of such amendment, contained an untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus as of its date (or any amendment thereof
or supplement thereto made prior to the Closing Date as of the date of such
amendment or supplement) and as of the Closing Date contained or contains
an untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
belief or opinion with respect to the financial statements and schedules
and other information of a financial, statistical or accounting nature
which are or should be included or incorporated by reference therein).
(xiii) The statements set forth or incorporated by reference in the
Prospectus under the caption "Description of Capital Stock" and
Item 15 of Part II of the Registration Statement, insofar
as such statements constitute a summary of legal matters documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings.
(xiv) Such counsel may state that their opinions are limited to the
Federal laws of the United States, the laws of the State of New York and
the General Corporation Law of the State of Delaware, and that they express
no opinions as to the laws of any other jurisdiction. In rendering its
opinion and separate letter referred to above, they may state that they
have relied upon the opinion of __________ as to matters of the laws of the
State of Connecticut, which is in a form satisfactory to them.
(c) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be
satisfactory in form and substance to you and to Underwriters' Counsel, and the
Underwriters shall have received from Underwriters' Counsel a favorable opinion,
dated as of the Closing Date with respect to the issuance and sale of the
Shares, the Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Company shall have furnished to
Underwriters' Counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(d) At the Closing Date you shall have received a certificate
of the Chief Executive Officer and Chief Financial Officer of the Company, dated
the Closing Date to the effect that (i)
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the condition set forth in subsection (a) of this Section 6 has been satisfied,
(ii) as of the date hereof and as of the Closing Date the representations and
warranties of the Company set forth in Section 1 hereof are accurate, (iii) as
of the Closing Date the obligations of the Company to be performed hereunder on
or prior thereto have been duly performed and (iv) subsequent to the respective
dates as of which information is given in the Registration Statement and the
Prospectus, the Company and its subsidiaries have not sustained any material
loss or interference with their respective businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental proceeding,
and there has not been any material adverse change, or any development involving
a material adverse change, in the business prospects, properties, operations,
condition (financial or otherwise) or results of operations of the Company and
its subsidiaries taken as a whole.
(e) At the time this Agreement is executed and at the Closing
Date, you shall have received a customary "comfort letter" from Deloitte &
Touche LLP, independent public accountants for the Company, dated as of the date
of this Agreement and as of the Closing Date, respectively, addressed to the
Underwriters and in form and substance satisfactory to you.
(f) Prior to the Closing Date the Company and the Selling
Shareholders shall have furnished to you such further information, certificates
and documents as you may reasonably request.
(g) You shall have received from each person who is a director
or executive officer of the Company named in the Prospectus and Xxxxx Xxxxx an
agreement to the effect that such person will not, directly or indirectly,
without your prior written consent, offer, sell, offer or agree to sell, grant
any option to purchase or otherwise dispose (or announce any offer, sale, grant
of an option to purchase or other disposition) of any shares of Common Stock (or
any securities convertible into or exercisable or exchangeable or exercisable
shares of Common Stock) for a period of 90 days after the date of the
Prospectus.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
cancelled by you at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Company and the Selling
Shareholders in writing, or by telephone or telecopy confirmed in writing.
7. Indemnification.
(a) The Company and each Selling Shareholder jointly and
severally agree to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but limited to
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a
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material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that (A) the Company and the Selling
Shareholders will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein and (B) such indemnity with respect to any untrue
statement or omission in any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
liabilities, claims, damages and expenses purchased Shares if such person did
not receive a copy of the Prospectus (excluding documents incorporated by
reference) at or prior to the confirmation of the sale of such Shares to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected in the Prospectus. Notwithstanding the foregoing, (i) in
no case shall The Xxxxx Family Foundation be liable or responsible for
any amount in excess of the total proceeds from the sale of Shares
by it hereunder and (ii) in no case shall the Xxxxx Family, L.P. be liable or
responsible for any amount in excess of the total proceeds from the sale of
Shares by it hereunder unless, prior to seeking indemnification in an amount in
excess of the total proceeds from the sale of Shares by the Xxxxx Family, L.P.
hereunder, either (A) a Bankruptcy Event (as hereinafter defined) shall have
occurred or (B) a court of competent jurisdiction shall have rendered a
judgment against the Company for indemnification pursuant to this Agreement,
and such judgment shall remain unsatisfied for a period of 30 days. For
purposes of this Agreement, a "Bankruptcy Event" shall mean (1) the Company
pursuant to or within the meaning of any Bankruptcy Law (as hereinafter
defined) (a) commences a voluntary case, (b) consents to the entry of an order
for relief against it in an involuntary case, (c) consents to the appointment
of a Custodian (as hereinafter defined) of it or for all or substantially all
of its property, (d) makes a general assignment for the benefit of its
creditors or(e) generally is not paying its debts as they become due or (2) a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law, which order or decree remains unstayed and in effect for 60 consecutive
days, that (a) is for relief against the company in an involuntary case, (b)
appoints a Custodian of the Company or for all or substantially all of the
property of the Company or (c) orders the liquidation of the Company. The term
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar Federal or
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Company, each Selling Shareholder, each of the
directors of the Company, each of the officers of the Company who shall have
signed the Registration Statement, and each other person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), jointly or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Shares, as originally filed
or any amendment thereof, or any related preliminary prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Underwriter through
you expressly for use therein; provided, however, that in no case shall such
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have, including under this Agreement. The Company and
the Selling Shareholders acknowledge that the statements set forth in the last
paragraph of the cover page and in the six paragraphs under the caption
"Underwriting" in the Prospectus constitute the only information furnished in
writing by or on behalf of any Underwriter expressly for use in the registration
statement relating to the Shares as originally filed or in any amendment
thereof, any related preliminary prospectus or the Prospectus or in any
amendment thereof or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the
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commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the party or parties
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
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) 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 one or all of the indemnifying parties (in which case the
indemnifying parties 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
the fees and expenses of not more than one firm of counsel representing the
indemnified parties (not including local counsel) shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Selling Shareholders, on the one hand and the Underwriters, on the other
hand, shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company and the Selling Shareholders
any contribution received by the Company and the Selling Shareholders from
persons, other than the Underwriters, who may also be liable for contribution,
including persons who control the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, officers of the Company who signed
the Registration Statement and directors of the Company) as incurred to which
the Company, the Selling Shareholders and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company and the Selling Shareholders, on the one hand, and the
Underwriters, on the other hand, from the offering of the Shares or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 7 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Selling Shareholders, on the one hand, and the Underwriters,
on the other hand, in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or expenses, 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 hand, shall be deemed to be in the same proportion as (a) the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Selling Shareholders and (b) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Selling Shareholders, on
the one hand, and of the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Selling Shareholders or
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and
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the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 8, (i) in no
case shall any Underwriter be liable or responsible for any amount in excess of
the underwriting discount applicable to the Shares purchased by such Underwriter
hereunder, (ii) in no case shall The Xxxxx Family Foundation be liable or
responsible for any amount in excess of the total proceeds from the sale of
Shares by it hereunder (iii) in no case shall the Xxxxx Family, L.P. be liable
or responsible for any amount in excess of the total proceeds from the sale of
Shares by it hereunder unless, prior to seeking contribution in an amount in
excess of the total proceeds from the sale of Shares by the Xxxxx Family, L.P.
hereunder, either (A) a Bankruptcy Event shall have occurred or (B) a court of
competent jurisdiction shall have rendered a judgment against the company for
contribution pursuant to this Agreement, and such judgment shall remain
unsatisfied for a period of 30 days. and (iv) 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. Notwithstanding the provisions of this Section 8 and the
preceding sentence, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to clauses (i), (ii), (iii) and (iv) of this Section 8. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 8 or
otherwise. No party shall be liable for contribution with respect to any action
or claim settled without its consent; provided, however, that such consent was
not unreasonably withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default
in its or their obligation to purchase Firm Shares or Additional Shares
hereunder, and if the Firm Shares or Additional Shares with respect to which
such default relates do not (after giving effect to arrangements, if any, made
by you pursuant to subsection (b) below) exceed in the aggregate 10% of the
number of Firm Shares or Additional Shares to which the default relates shall be
purchased by the non-defaulting Underwriters in proportion to the respective
proportions which the numbers of Firm Shares set forth opposite their respective
names in Schedule I hereto bear to the aggregate number of Firm Shares set forth
opposite the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more
than 10% of the Firm Shares or Additional Shares, as the case may be, you may in
your discretion arrange for yourself or for another party or parties (including
any non-defaulting Underwriter or Underwriters who so agree) to purchase such
Firm Shares or Additional Shares, as the case may be to which such default
relates on the terms contained herein. In the event that within five calendar
days after such a default you do not arrange for the purchase of the Firm Shares
or Additional Shares, as the case may be, to which such default relates as
provided in this Section 9, this Agreement or, in the case of a default with
respect to the Additional Shares, the obligations of the Underwriters to
purchase and of The Xxxxx Family Foundation to sell the Additional Shares shall
thereupon terminate, without liability on the part of The Xxxxx Family
Foundation with respect thereto (except in each case as provided in Section 5,
7(a) and 8 hereof) or the Underwriters, but nothing in
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this Agreement shall relieve a defaulting Underwriter or Underwriters of its or
their liability, if any, to the other Underwriters and the Selling Shareholders
for damages occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional
Shares to which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Selling Shareholders shall have the right to postpone the Closing
Date or Additional Closing Date, as the case may be, for a period not exceeding
five business days in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus or in any other
documents and arrangements, and the Company agrees to file promptly any
amendment or supplement to the Registration Statement or the Prospectus which,
in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 9 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares and Additional
Shares.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters,
the Selling Shareholders and the Company contained in this Agreement, including
the agreements contained in Section 5, the indemnity agreements contained in
Section 7 and the contribution agreements contained in Section 8, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof or by or on
behalf of the Company, any of its officers and directors or any controlling
person thereof or by or on behalf of the Selling Shareholders or any controlling
person thereof, and shall survive delivery of and payment for the Shares to and
by the Underwriters. The representations contained in Section 1 and the
agreements contained in Sections 5, 7, 8 and 11 (d) hereof shall survive the
termination of this Agreement, including termination pursuant to Section 9 or 11
hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the later
of when (i) you and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution of this
Agreement. If either the initial public offering price or the purchase price per
Share has not been agreed upon prior to 5:00 P.M., New York time, on the fifth
full business day after the Registration Statement shall have become effective,
this Agreement shall thereupon terminate without liability to the Company, the
Selling Shareholders or the Underwriters except as herein expressly provided.
Until this Agreement becomes effective as aforesaid, it may be terminated by the
Company or the Selling Shareholders by notifying you or by you notifying the
Company or the Selling Shareholders. Notwithstanding the foregoing, the
provisions of this Section 11 and of Sections 1, 5, 7 and 8 hereof shall at all
times be in full force and effect.
(b) You shall have the right to terminate this Agreement
at any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (i) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (ii) if trading on the New York Stock Exchange or American Stock
Exchange shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required, on the New York Stock Exchange or American Stock Exchange by the
New York Stock Exchange or American Stock Exchange or by order of the Commission
or any other governmental authority having jurisdiction; or (iii) if a banking
moratorium has been declared by a New York State or federal authority or if any
new restriction materially adversely affecting the distribution of the Firm
Shares or the Additional Shares, as the
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case may be shall have become effective; or (iv) (A) if the United States
becomes engaged in hostilities or there is an escalation of hostilities
involving the United States or there is a declaration of a national emergency or
war by the United States or (B) if there shall have been such change in
political, financial or economic conditions if the effect of any such event in
(A) or (B) as in your judgment makes it impracticable or inadvisable to proceed
with the offering, sale and delivery of the Firm Shares or the Additional
Shares, as the case may be, on the terms contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone or telecopy and confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any
of the provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company or the Selling Shareholders to perform any agreement herein or comply
with any provision hereof, the Company and the Selling Shareholders will,
subject to demand by you, reimburse the Underwriters for all reasonable
out-of-pocket expenses (including the reasonable fees and expenses of their
counsel) incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telecopied and confirmed in writing
to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Equity Capital Markets; if sent to the Company or Selling
Shareholders, shall be mailed, delivered, or telegraphed and confirmed in
writing to the Company or the Selling Shareholders c/o the Company, 00 Xxxxxxxx
Xxxxx, Xxxxxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxxx, with copy to
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxx.
13. Parties. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Underwriters, the Company, the Selling
Shareholders and the controlling persons, directors, officers, employees and
agents referred to in Section 7 and 8, and their respective successors and
assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Shares from any of
the Underwriters.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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If the foregoing correctly sets forth the understanding
between you, the Company and the Selling Shareholders, please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute a
binding agreement among us.
Very truly yours,
THE DRESS BARN, INC.
By_____________________________
The Selling Shareholders:
THE XXXXX FAMILY FOUNDATION
By_____________________________
XXXXX FAMILY, L.P.
By_____________________________
Accepted as of the date first above written
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXXXX & COMPANY LLC
By BEAR, XXXXXXX & CO. INC.
By__________________________
Senior Managing Director
On behalf of themselves and the other Underwriters named in Schedule II
hereto.
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SCHEDULE I
Number of Firm
Name of Shareholder Shares to be Sold
---------------------------------------------------------------------------
Xxxxx Family, L.P. 1,000,000
The Xxxxx Family Foundation 1,000,000
Total ...... 2,000,000
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SCHEDULE II
Number of Firm
Name of Underwriter Shares to be Purchased
----------------------------------------------------------------------------
Bear, Xxxxxxx & Co. Inc
Xxxxxxxxx, Xxxxxxxx & Company LLC
Total ...... 2,000,000
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